R v Hartley [2012] NZHC 2124 (22 August 2012)

Last Updated: 7 September 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-032-000640 [2012] NZHC 2124

THE QUEEN

v

WILLIAM ROBERT HARTLEY

Counsel: M G Sinclair for Crown

M R Bott for Accused

Sentence: 22 August 2012

_{NOTES ON SENTENCE OF COLLINS J}

Introduction

[1] Mr Hartley, you appear for sentencing today having been found guilty by a jury of two charges of using a firearm against a member of the police.[1] This charge carries a maximum penalty of 14 years’ imprisonment.

[2] I note at the outset that the verdict of the jury on those two counts was the only verdict that was reasonably available on the evidence at trial.

Circumstances of the offending

_{[3] The circumstances of your offending were as follows.}

R V HARTLEY HC PMN CRI-2011-032-000640 [22 August 2012]

[4] On 14 February 2011, you assaulted your partner in Levin, but you were unable to be located at the time.

[5] At about 1.00am on the morning of 24 February 2011, the police went to your address. You had been told the police were looking for you, and you saw the police arrive at the address on a CCTV system.

[6] When the police arrived at your address, they could see you were inside the house. They knocked on the door and announced their presence. At this point, one of your associates became obstructive and he was arrested. You retreated to a bedroom at the rear of the house.

[7] The police made their way to the bedroom and spoke to you through the door. They asked you to come out. You barricaded yourself in the bedroom, blocking the door with furniture. The police attempted to negotiate with you, but this failed. The police then managed to force their way into the bedroom.

[8] The first police officer, Constable Moore, entered the bedroom by climbing over the furniture used to block the door. The second police officer, Constable Watkin, stood at the door way. As Constable Moore entered the room, you picked up a loaded .44 rifle from inside a closet. The rifle was cocked and ready to fire.

[9] You presented the rifle directly at Constable Moore. You shouted that you had a firearm and to get out. You then pointed the rifle at Constable Watkin who had entered the room and was facing away from you, about one to one and a half metres away. You presented the rifle in a manner that indicated you might shoot Constable Watkin. Constable Watkin immediately drew his firearm and shot you twice, in the hand and in the arm. You were disarmed and you were subsequently transported to hospital for medical treatment.

[10] A check of the rifle confirmed that it was loaded with one round in the breach, and seven further rounds in the magazine. Two of the rounds were flat

headed and soft tipped which upon penetration cause significant harm. There was no safety catch on the rifle.

[11] When spoken to by the police, you claimed you were just picking up the firearm and that you were trying to move it out of the way. You said that the gun could not be fired without having a flat head screwdriver. This was untrue.

Circumstances of the offender

[12] I turn now to your personal circumstances. You are 29 years old. Prior to this offending you lived at Otaki in a shared house. You have one sister and one brother. Your parents separated when you were 13 years old. Your father moved to Australia, while your mother remained in New Zealand raising you and your siblings. You have a good relationship with your mother and remain in contact with your father. You also have a good relationship with your stepfather.

[13] Not long after your parents separated, tragedy struck. Your older sister Jodie was killed in a car accident. You were a passenger in the same vehicle and suffered head injuries. You have been diagnosed with epilepsy and post-traumatic stress disorder. You told the pre-sentence report writer that your injuries from the accident were later assessed as a contributing factor to your epilepsy, but the post traumatic stress disorder was not linked to the accident.

[14] You grew up in a small rural community. You moved into town when you gained employment. It was at this point that you first became in contact with the criminal justice system.

[15] Despite this, it appears that you had a somewhat successful career in the engineering field. You gained an apprenticeship as a stainless steel fitter welder in Palmerston North. Prior to completing this apprenticeship, you were offered employment in the United States as an automatic conveyor technician for one year. You accepted this offer. You travelled around the United States to various warehouses and then on to London where you briefly considered employment in design research. However, you decided that research was not what you wanted to

do. Returning to the United States and then New Zealand, you obtained work at a freezing works for two seasons before re-entering the engineering field. You told the pre-sentence report writer that you had been working as a self-employed casual mobile tattooist since late 2008 or early 2009. You stopped drinking alcohol in 2008 and acknowledge using cannabis as a social drug, but deny using any other drugs for a number of years.

[16] You are remorseful for your offending. You apologised to the police shortly after the offence. You have also extended apologies to your family and friends, and told the pre-sentence report writer that the rest of your family has not had contact with the criminal justice system and that you are at a loss to explain your offending. The report writer says there was “no doubt” you have regrets and these regrets are “not self-centred”. Your family remain supportive of you. Your mother, your stepfather, and other family and friends have attended the Court hearings. Your father flew over from Australia to support you. I have read the letters written in support of you from your mother, your step-father and your mother’s cousin. Your mother’s letter, in particular, speaks of some of the difficulties you have faced including the death of your sister, and your downward spiral from that point. It is clear that you have a great deal of support from your family, and that they acknowledge you have a tough road ahead. Your mother’s letter clearly illustrates that she and other members of your family understand the pain and frustration you have suffered. You are fortunate because you have family who will be there to support you when you get out of prison.

[17] You have about 35 previous convictions. Most relevantly for the purposes of your sentencing today, you have a conviction for possession of an offensive weapon in 2008, a conviction for intimidation in 2007, two convictions for speaking threateningly in 2007, two convictions for resisting police in 2007, one conviction for assaulting police in 2007, two convictions for common assault in 2003 and 2004 respectively, and one conviction for unlawful intimidation or threats in 2003. You also have previous convictions for breaching community work, failure to answer bail and driving while disqualified.

[18] You were assessed as having a medium risk of re-offending. The risk of you causing harm to other people, should you re-offend, is assessed as high although I accept this equates to about a 50 per cent likelihood of re-offending.

Purposes and principles of sentencing

[19] In sentencing you today, I have to first determine what is called the starting point. This is the sentence that is appropriate having regard to the nature of your offending or what you did.

[20] I then have to consider aggravating or mitigating factors personal to you which might increase or decrease your sentence from the starting point.

[21] In sentencing you, I am required to take into account the purposes and principles of sentencing set out in the Sentencing Act 2002. I consider these to be holding you accountable for the harm done, denouncing your offending, deterring you and others from such offending and protecting the community from you. I now turn to the starting point.

Starting point

[22] The Court of Appeal has previously observed that using a firearm against a police officer is a serious offence. It has emphasised the need for deterrence to be a major consideration in sentencing. As the Court of Appeal said in R v Taylor:[2]

Section 198A was enacted in 1986 and shows a firm legislative intention that those using firearms against law enforcement officers should be dealt with severely. Clearly deterrence must be a major consideration in sentencing for this offence. The maximum penalty is one of 14 years imprisonment, and the section does not distinguish between different kinds of use, indeed it speaks of using a firearm in any manner whatsoever. Presenting a firearm, even an unloaded one, is thus clearly within the terms of the section, and any instance of it must be treated seriously.

[23] There is no tariff case for a charge of using a firearm against a police officer. All sentencing decisions involving this charge depend on the facts and circumstances of each case.

[24] In terms of comparable cases, counsel for the Crown and your counsel have referred me to a number of cases.[3] There is no directly comparable case. Each of the cases I have considered have contained a wide range of factual scenarios. Perhaps the closest case to yours is R v Harris.[4] Mr Harris was charged with the lesser offence of attempting to present a firearm. That offence carries a maximum sentence of seven years’ imprisonment. In that case the police were chasing Mr Harris’ vehicle. Mr Harris’ vehicle failed to take a right-hand turn. The car crossed both lines of the road before crashing through a stock fence into a paddock. The car became stuck in a wire fence. Mr Harris ran from the car and was caught by a police dog. When the dog handler arrived Mr Harris was fighting with the dog. The dog handler eventually managed to free the dog from Mr Harris. Mr Harris tried to access a small mesh bag he had around his neck. He was told to remove his hand from the bag and to stop resisting arrest. A struggled ensued between Mr Harris and the constable. During the struggle Mr Harris drew out a small six-shot .22 calibre pistol from the bag around his neck. Before he was able to present or fire it, it was dislodged from his hands by the police officers. The pistol did not have any safety

mechanism on it. It was loaded with six rounds of ammunition. Mr Harris had a further 22 hollow point .22 ammunition rounds on him. The sentencing Judge adopted a starting point of four years’ imprisonment on the firearms charges. It was argued on appeal that this starting point was too high. The Court of Appeal agreed with the sentencing Judge and upheld the starting point of four years’ imprisonment.

[25] You pointed a relatively high-powered .44 calibre rifle at two police officers. It was loaded with one round in the breach and seven further rounds in the magazine. The first two bullets were flat headed and soft tipped, which can cause significant

_{harm upon penetration. When you picked up the rifle, it was cocked and had no}

safety catch which meant you only had to pull the trigger to discharge it. The rifle was pointed at the police officers at close range (the evidence at trial was that one of the officers was about one to one and a half metres away). You said in no uncertain language that you had a gun. The situation was only diffused when you were shot in the hand. The offending was pre-meditated in the sense that you retreated to that room of the house when the police arrived, knowing your gun was there. Your offending has severely traumatised the police officers involved, and both officers are still affected by the incident.

[26] All of the police officers at the scene acted with remarkable courage and professionalism. Constables Watkin and Moore will be affected by your conduct for a long time. From my perspective I hope they will take some comfort from knowing they acted with the greatest degree of professionalism and integrity on this occasion.

[27] Taking into account all these factors, I adopt a starting point for the two charges of four years’ imprisonment.

Aggravating and mitigating factors

[28] I turn now to the factors that are personal to you.

[29] As noted above, you have about 35 previous convictions, including convictions for possession of an offensive weapon in 2008, a conviction for intimidation in 2007, two convictions for speaking threateningly in 2007, two convictions for resisting police in 2007, one conviction for assaulting police in 2007, two convictions for common assault in 2003 and 2004 respectively, and one conviction for unlawful intimidation or threats in 2003. Although none of these previous convictions are for the offence for which you are being sentenced today, they illustrate that you are disrespectful of law enforcement, and have shown a tendency to be violent or to threaten and that you have had a general disregard for the law. In my view, your previous convictions warrant an uplift of four months’ imprisonment to the starting point of your sentence.

[30] Because you did not plead guilty, the only possible mitigating factor is your remorse for the offending. You immediately apologised to the police. You also expressed your remorse for the offending to the pre-sentence report writer. The report writer noted there is “no doubt” you have regrets and these regrets are “not self-centred”. As noted by the Court of Appeal, an expression of remorse in a pre- sentence report carries more weight when preceded by a guilty plea as opposed to

following conviction at trial.[5] In my view, you are entitled to a discount for remorse.

I set that discount at four months. In effect, your previous convictions and your remorse neutralise each other in the sentence I impose.

[31] The point which I have started with and to which I have returned is four years’ imprisonment. This is a lower sentence than I had contemplated prior to reading your mother’s letter and Constable Moore’s victim impact statement. Your mother knows you better than anyone. Constable Moore thought his life was about to end when he saw the gun in your hand. They look at you from vastly different perspectives yet, remarkably, both recognise that you have the potential to make something of your life. I want to reiterate what Constable Moore has said and what Mr Bott read out to us in Court today, because like him I was struck by the nature of his comments. He said:

One additional matter that I do want to bring to the attention of the judiciary is that whilst attending the trial I was impressed by the amount of support that Mr Hartley had from his family. I was impressed by their unwavering support and no doubt love their son, brother etc. This to me suggests that there must be some good in Mr Hartley because he has come from good people. It is my hope that Mr Hartley receives the required help from professional people so that he can address what underlying issues he has that brought him to the situation of pointing a firearm at police. I do not wish to condemn Mr Hartley and I do not hold any anger or bitterness towards him. Should I ever come face to face with him again I hope it would be in different circumstances and that I can shake his hand in the hope that his life is heading in a different direction. I will treat him with respect like I do any other person because I believe that every person has some good in them. He just needs to find where that is.

[32] I want to give you Mr Hartley the opportunity to prove that you can make something worthwhile of your life and that you can become a constructive member

_{of society. It is for this reason that I have chosen the sentence that I have in the hope}

that it will give you an incentive to focus upon returning to society determined to make something of your life.

Sentence

[33] Could you please stand now Mr Hartley.

[34] Mr Hartley, you are sentenced to four years’ imprisonment.

[35] An order is made for the destruction of the firearm used in your offending. When you were found guilty of the two charges for which you have been sentenced, I gave you a first strike warning pursuant to s 86B of the Sentencing Act 2002. I confirm that warning today.

[36] I also direct that all outstanding fines be remitted.

_{[37] You may now stand down.}

_{D B Collins J}

_Solicitors:

Crown Solicitor, Palmerston North

---

[1] _{Crimes Act 1961, s 198A(1).}

[2] R v Taylor CA407/88, 9 May 1989 at 6.

[3] Counsel for the Crown referred me to R v Taylor CA407/88, 9 May 1989, R v Atkinson [1990] 2

NZLR 513 (CA), Strickland v Police HC Whangarei CRI-2008-488-48, 23 October 2008 and R

v Wells HC Auckland CRI-2003-092-26964, 30 April 2004. Counsel for Mr Hartley referred me to R v Atkinson, R v Harris [2008] NZCA 214 and R v Green [1994] 11 CRNZ 641 (CA).

[4] R v Harris [2008] NZCA 214.

[5] R v Ali CA371/05, 20 June 2006 at [25].