Hart v Police [2014] NZHC 2741 (6 November 2014)

Last Updated: 21 November 2014

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) AND OF PARAGRAPH [11] OF THIS JUDGMENT PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2014-418-000009 [2014] NZHC 2741

ANTHONY JOHN HART Appellant

v

POLICE Respondent

Hearing:	3 November 2014
Appearances:	M Zintl for Appellant C D Newman for Respondent
Judgment:	6 November 2014

_{JUDGMENT OF WHATA J}

[1] Mr Hart seeks to appeal against a sentence of 60 hours community work and nine months supervision imposed on a charge of contravening a protection order contrary to ss 19(1)(d) and 49(1)(a) and (3) of the Domestic Violence Act 1995. ^{1 2}

_{Mr Hart contends that the sentence was manifestly excessive.}

¹ _{This is a redacted version of the original judgment. Paragraph [11] has been redacted.}

² _{Police v Hart DC Westport CRI 2014-9-7510, 18 September 2014.}

HART v POLICE [2014] NZHC 2741 [6 November 2014]

Background

[2] Mr Hart had a protection order against him. It appears that he sent text messages to the victim [S] in contravention of the protection order. The Judge in sentencing Mr Hart noted:

[3] Mr Hart, you know I appreciate that you and Ms [ ] are the parents and guardians of two young children and you have got a long way to go in your dealings with each of those two kids, but, you have got a problem. You have got a final protection order made against you. This is your first breach but if you breach again you could be sentenced up to three years’ imprisonment.

[3] The Judge goes on to note:

[4] I note from your previous history that you have had sentences of imprisonment but the last one was back in 2004.

[4] As to the nature of the offending the Judge then had this to say:

[5] ... You are setting yourself up to fail and if I put myself in her shoes, receiving those sorts of messages, I would feel scared, and the kids are at that age, they are a bit like a sponge, they are soaking up everything that is going on around them including Mum’s anxiety when she gets these sorts of messages.

[5] Accordingly, the Judge convicted and sentenced Mr Hart to 60 hours community work cumulative. He also sentenced Mr Hart to supervision for a period of nine months with two special conditions:

(a) To live and work where the Probation Officer directs.

(b) To undertake relationship counselling to address separation and anger management issues.

Grounds of appeal

[6] The appellant claims that the end sentence was manifestly excessive having regard to two factors:

(a) There was a material error by the Judge who sentenced the appellant on the mistaken belief that the appellant still had community work

hours outstanding. This was why the sentencing Judge made the community work order (cumulative). Mr Hart contends that no community work was outstanding at the time of sentencing.

(b) Facts existed at the time of sentencing which were not before the Court. The appellant was represented by a duty solicitor and was not given the opportunity to put before the Court a letter of apology and character references.

[7] The letter of apology and character references of support were attached to the appellant’s submissions. A further letter was presented at the hearing of the appeal without objection.

Jurisdiction

[8] I must allow an appeal if I am satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.³

Error simply means material error and may include a sentence which is manifestly excessive, wrong in principle or flawed on its face.⁴

Assessment

Community work

[9] I understand that the appellant does not wish to pursue this point. Certainly the conviction history suggests that Mr Hart was convicted and sentenced for driving while disqualified to 50 hours of community work.

New information

[10] For the sake of efficiency, I am prepared to take into account Mr Hart’s letter

_{and the character references said to support him.}

³ _{Criminal Procedure Act 2011, s 250}

⁴ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

Mr Hart’s letter

[11] [Paragraph redacted]

[12] He says that he never threatened violence and nor did he scare the children. He said he became concerned for his children’s welfare. He then says:

... [y]es I admit to threatening her with “telling everyone her dirty secrets and how it will be like to lose everything as I have”, [but] I never meant to make it sound violent.

[13] He also says he is sorry if he caused the victim distress, and he wishes the victim all the best and his door is always open to her and the children. He says he just needs to move on and forget about her:

... [b]ut with the sentence I was given I am frequently reminded of the hurt we have caused one another and feel double punished being, one punishment from the law, and another of losing my family and all our possessions as [S] burnt all my stuff in her last bonfire.

[14] I am not satisfied that this letter provides a proper basis for reducing sentence. Rather than expressing genuine remorse, the majority of the letter appears simply to be a statement of Mr Hart’s position, why he feels aggrieved and if anything, he has taken the further opportunity to criticise the victim for her alleged behaviour.

[15] Mr Zintl stressed to me that this letter was lodged without assistance of counsel. But I do not think that this fact enhances its quality for my purposes.

Supporting references

[16] I have also read supporting character references from Rochelle Van Dorp and Daniel Ladd, and from Louisa and Corey Kennedy. The Crown did not object to their production.

[17] Ms van Dorp and Mr Ladd speak of Mr Hart as being a very genuine caring person and an awesome father. Unfortunately they also take the opportunity to be highly critical of the victim. That hardly adds positive weight to Mr Hart’s appeal.

[18] The letter from the Kennedys, however, helpfully focuses on Mr Hart’s qualities and therefore provides genuine assistance in terms of resolving the issue of an appropriate sentence. They have known him since he was 15. They speak of his troubles from time to time, but have never known him to be violent. They say he is a wonderful caring dad and that he was devastated at his separation from the victim. They provide insights into his relationship with his children and their love for each other.

[19] Their letter also talks about Mr Hart’s chaotic childhood and how he has worked hard to turn his life around, is a hardworking man and has found it difficult sometimes “to communicate with this system”. They say he has moved completely away from the victim and is working on “clearing his head”. They would like to see him reconnect with his children and conclude by pledging to “stand by him with anything he may need to achieve this.”

[20] Unlike Mr Hart’s letter (which was an example of the difficulty he has communicating with the system) and the first letter of support, the Kennedys’ letter provides a valuable insight into Mr Hart’s personal characteristics that was not available to the sentencing Judge. I am therefore prepared to accept that it provides a proper basis for reconsidering the sentence imposed.

Assessment

[21] The Judge’s sentence was not, on its face, manifestly excessive. The sentence is broadly proportionate to other sentences handed down for this type of offending.⁵ A relevant distinguishing factor, however, is that those cases tended to deal with more serious offending and instances of multiple prior offending, so they

_{must be treated with some caution. While offending of this nature is serious, hence it}

⁵ Potter v Police [2014] NZHC 1769 (sentence of 125 hours community work and nine months community work substituted on appeal with a sentence of 15 weeks community detention and nine months supervision); Maitaiti v Police [2014] NZHC 1675 (conceded to be more serious, but nevertheless a starting point of 12 months imprisonment was upheld on appeal); Police v Gray DC Wanganui CRI 2008-063-4445, 20 April 2009 (more serious offending also involving an assault in which a sentence of four months community detention and 12 months intensive supervision was imposed). R v Nathan CA209/06, 29 November 2006 (CA) (sentence of 150 hours community work – though offender had five previous convictions for breach of the same protection order).

attracts a maximum sentence of three years imprisonment, the particular characteristics of the offender must be a significant consideration in the assessment of the type and scale of the sentence. Mr Hart’s conviction history only provides part of the personal background (and in any event does not suggest that Mr Hart presents a serious risk to the community or to those close to him). Unlike the Judge, having had the benefit of the character reference from the Kennedys, I think an end sentence of 60 hours community work, for a first offence of this type, is excessive. But I do not accept that a discharge would properly reflect the underlying policy concern with this type of offending. I am content that the sentence should be reduced to 40 hours community work with 10 hours to be served concurrently, to better reflect both the offending and the offender, and the salient purposes of the sentencing, including the need for deterrence, rehabilitation and to impose the least restrictive sentence permissible in the circumstances.

[22] Accordingly, the appeal is allowed, and the sentence is reduced to one of

40 hours community work and 10 of those hours are to be served concurrently with the existing sentence for community work. The balance of the sentence remains the same.

Suppression

[23] I suppress all details identifying the victim, including all references to the victim at paragraph [11] pursuant to s 202(1)(b) and (2)(a). Any publication identifying the victim and attributing conduct to her would cause undue hardship to her.

Solicitors:

Hannan & Seddon, Greymouth

Raymond Donnelly & Co, Christchurch

: