Hepi v Police [2014] NZHC 3180 (11 December 2014)

Last Updated: 2 November 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000286 [2014] NZHC 3180

BETWEEN	BRENDAN LEE HEPI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	18 November 2014
Appearances:	D Reece for the Appellant E Meade for the Respondent
Judgment:	11 December 2014

_{JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Thursday, 11 December 2014 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Crown Solicitor, Auckland

D Reece, Barrister, Auckland

BRENDAN LEE HEPI v NEW ZEALAND POLICE [2014] NZHC 3180 [11 December 2014]

[1] On 14 April 2014, Brendon Lee Hepi pleaded guilty to one charge of wounding with reckless disregard for the safety of others. On 23 June 2014, he was convicted and sentenced to 18 months imprisonment with standard conditions of release that were to apply for six months after the sentence expiry date. In addition, he was ordered to pay $4,000 as emotional harm reparation to the victim.

[2] He now appeals against sentence on the basis that it is manifestly excessive. On filing his appeal, the District Court Judge granted Mr Hepi bail pending appeal. In doing so, he must have considered that it was in the interests of justice to grant him bail, in terms of s 14 Bail Act 2000.

Background facts

[3] On 28 March 2014, Mr Hepi attended a wedding in Auckland together with his wife. After the wedding, a group of approximately 15 wedding guests went to a bar in Fort Lane, Auckland City to continue the celebration. Among the group of 15 present was Mr Hepi, his wife and the victim. Mr Hepi was drunk.

[4] While at the bar, Mr Hepi and the victim were seated next to each other on a bench seat. Mr Hepi’s wife was sitting on the victim’s knee. When she got off the victim’s knee, he made sexually suggestive gestures to her. Mr Hepi lunged at him with a tall glass, which caused the glass to break. The victim sustained a large “N” shaped cut to his cheek, jaw line and neck which required approximately 30 stitches. Mr Hepi was removed from the bar by security staff and an ambulance was called to attend to the victim.

[5] Mr Hepi attended at the Police Station when he learnt that the Police wished to speak with him. He agreed to be interviewed on DVD. In explanation, he said that he did not mean to cause the injuries, in that he was just intending to throw the ice cubes in the glass at the victim. He was extremely remorseful for his actions.

District Court sentencing

[6] After summarising the facts of the case, the sentencing Judge referred to the victim impact report which described the on-going impact of the assault on him,

apart from the physical injuries he suffered. The victim explained that his life had changed dramatically and the assault had had a very significant emotional impact on him. He was unable to work fulltime, had lost a lot of weight, felt weak and tired and his appetite had gone. The consequences of the assault had also impacted on his relationship with his partner and his friends.

[7] The sentencing Judge then referred to Mr Hepi’s previous convictions, which included one in 1994 for aggravated assault in respect of which he had been sentenced to seven months imprisonment. There were, in addition, two convictions for common assault in 2005.

[8] Turning to the pre-sentence report, the sentencing Judge noted its recommendation that sentences of intensive supervision and community work be imposed and the submissions made by Mr Hepi’s lawyer urging him to adopt the recommendations made in the report.

[9] After referring to purposes and principles of sentencing, the sentencing Judge then referred to the Court of Appeal’s decision in Nuku v R.¹ The sentencing Judge was of the view that the present offending fell firmly within the second category of Nuku.² He said that there were three aggravating factors present:

(a) serious injuries caused to the victim. (b) an attack to the head; and

(c) the use of the glass as a weapon.

[10] The sentencing Judge was of the view that because the present case fell within the second category in Nuku, a starting point of up to three years imprisonment was appropriate. He therefore adopted a starting point of two years and three months imprisonment and uplifted that starting point by six months because of Mr Hepi’s previous convictions for violence. The sentencing Judge did

_{however give credit to Mr Hepi for his remorse and his willingness to take steps to}

¹ Nuku v R [2012] NZCA 584.

address the harm done. He therefore allowed 25 per cent for remorse, which brought the adjusted starting point down to two years imprisonment. He deducted a further

25 per cent, or six months, for the early guilty plea, which produced an end result of

18 months imprisonment, which was the sentence imposed.

[11] Finally, the sentencing Judge was of the view that the sentence of imprisonment should not be converted to a sentence of home detention. In his view the need to denounce and deter was such that the least restrictive sentence was a term of imprisonment, particularly given the seriousness of the offence against a history of other violent offending.

Discussion

[12] The Crown concedes that the sentencing Judge fell into error when relying on Nuku v R to set a starting point for the offending. In Nuku v R the Court of Appeal made it quite clear that the guidance they were offering only applied to offending which involved intent to injure. The Court specifically stated that other considerations were likely to arise when the mens rea of the offending was reckless disregard for the safety of others and they did not comment on those cases.³

[13] The Crown nonetheless submits that the starting point adopted by the sentencing Judge by using the approach in Nuku v R did not result in a starting point that was outside the appropriate range for the offending and did not result in an end sentence that was manifestly unjust. The Crown cites two cases in support of its submission. In the first, R v Rowe,⁴ Judge Zohrab adopted a start point of three years imprisonment. However, it is a sentencing decision of no precedent value for the High Court. The facts are also quite dissimilar. After a fight between the defendant

and the victim had broken up, the defendant made his way along Bridge Street in Nelson and out of sight. The defendant then found an abandoned empty beer bottle, which he smashed, arming himself with the jagged edge neck of the bottle. He then returned to Bridge Street, where he has re-engaged the victim in a further fight,

_{during which the defendant stabbed the victim in the neck, causing a serious wound.}

³ At [37] and fn 39.

[14] The second case relied upon by the Crown in support of its submissions was Hannay v Police,⁵ in which a starting point of two years and three months imprisonment was considered appropriate. Although a decision of the High Court on appeal is of more weight than a District Court sentencing, the facts in Hannay are also quite dissimilar.

[15] In that case the defendant was charged with two charges of wounding with reckless disregard and one charge of male assault female. He had been asked to leave a party at a house, but refused to do so and became engaged in an argument with other guests. A female went to shepherd him from the property. The defendant then advanced on that woman. A male guest intervened, stepped in and, on his evidence, was punched by the defendant. The male guest then pushed the defendant and, turning around to return to the party, became aware that he had been struck with an object to the back of his head. It turned out to be a heavy drinking glass in the hand of the defendant. It struck the first complainant, causing a significant laceration to the back of his head, such that it required surgical repair. The defendant then struck another blow with the jagged glass to the forehead of the second victim, who was a female. After this, and while leaving the house, he punched the hostess in the face with the result that he faced the three charges of which he was found guilty.

[16] Both these cases are quite dissimilar to the present. In both cases the defendant deliberately armed himself with either a broken beer bottle or a broken glass and in full knowledge of it being in his hand, used it as a weapon. In the present case, Mr Hepi meant to empty his glass of ice cubes over the victim, but badly miscalculated and lost control of the glass, which came out of his grasp and then made contact with the victim’s cheek, breaking on impact, thus causing the injury.

[17] In addition to conceding that the sentencing Judge fell into error when relying on Nuku v R to set a starting point for the offending, the Crown acknowledges that the uplift of six months imprisonment for Mr Hepi’s previous convictions is at the high end of the range available to the sentencing Judge. Mr Hepi was convicted of

_{the common assault of two bouncers in Queenstown ten years ago, in 2004. The}

⁵ Hannay v Police [2014] NZHC 2015.

assaults were obviously not serious as he was convicted and ordered to come up for sentence if called upon within one year, which is a form of good behaviour bond. He was also ordered to pay reparation of $300 and $500 to the victims. Mr Hepi has one further conviction for aggravated assault 20 years ago, in 1994, when he was sentenced to seven months imprisonment. That was obviously more serious. However, the uplift of six months imprisonment for Mr Hepi’s previous offending is in effect a doubling of the sentence imposed 20 years ago. I am therefore of the view it was outside the range available to the sentencing Judge.

[18] Having determined that the sentencing Judge fell into error when relying on Nuku v R to set a starting point for the offending and was wrong to then uplift the starting point by six months imprisonment, I am able, on appeal, to determine afresh the appropriate sentence for the offending to which Mr Hepi pleaded guilty.

[19] First, I note that there is no tariff for wounding with reckless disregard.

[20] Secondly, sentences other than imprisonment are available. An example is Vaigalepa v R,⁶ in which the appellant was convicted of one count of wounding with reckless disregard and sentenced to 200 hours community work. He appealed against conviction on the basis that the Judge’s direction to the jury on the elements of the charge was wrong. The Court of Appeal agreed and quashed the conviction, but did not order a retrial because the appellant had served his sentence. The Court of Appeal also thought it unlikely that any new material would emerge at a second trial which would cause the presiding Judge to take a different view on sentencing.

It stated:

[15] We have decided that a retrial should not be ordered. We are mindful of the serious injury sustained by the complainant but the Judge was aware of the nature and extent of her injuries and we think it unlikely that any new material will emerge at a second trial which would cause the presiding judge to take a different view at sentencing. It may be that the sentence originally imposed was lenient but the sentence was nevertheless one which was open to the Judge given the remorse expressed by the appellant, his youth, and the conclusion by the Judge that the appellant was a person with “plenty of promise” who had acted foolishly in the circumstances. Notwithstanding the serious injury, the Judge considered that

⁶ Vaigalepa v R [2011] NZCA 168.

the appellant was not deserving of unduly severe punishment. He did not see in the appellant the “seeds of a serious criminal”. ....

[21] The facts in Viagalepa v R are more similar to the present case than either of the two cases cited by the Crown. The charge against the appellant arose from an incident in a crowded bar. The appellant threw a beer glass at a man in the bar. The glass shattered upon impact with his head. The shattered glass went on to strike a woman, causing a laceration to her neck and lip. The medical evidence at trial indicated that the complainant suffered serious nerve damage, which required surgery. The damage to the nerve had resulted in paralysis to the complainant’s right arm and the Court was advised that she continued to experience difficulties in that regard.

[22] Thirdly, the pre-sentence report from the Department of Corrections recommended intensive supervision and community work. The report assessed Mr Hepi as having a low likelihood of further offending and noted that he had remained offence free for the past nine years. It also noted that Mr Hepi had not previously undertaken any alcohol rehabilitation, violence prevention or anger management programmes and may benefit from attending an alcohol rehabilitation programme and the Positive Lifestyle Programme run by the Salvation Army or other similar type of programme. The report then stated that Mr Hepi had good insight into the impact his violence had had on his victim and noted his genuine remorse and willingness to pay financial or emotional harm reparation. The report quoted Mr Hepi as saying he was disgusted in himself and sorry for the injuries he caused to his victim and helping him financially was the least he could do.

[23] Fourthly, Mr Hepi’s personal circumstances are such that treatment is more likely than imprisonment to be protective of the public in the long term. Mr Hepi is now 45 years old. He does not have an extensive criminal history, with only four convictions between 1986 and 2004, but the test administered by the Department discloses a harmful pattern of drinking, which is evident from the more recent offending. He is a self-employed plasterer who resides with his wife and their three children. In the circumstances, I am of the view that a sentence of imprisonment would be disproportionally severe in the impact it would have on Mr Hepi’s family and employment. Mr Hepi needs to remain in employment to both support his

family and to contribute to his community. His prospects of rehabilitation are very good, given his willingness to partake in the programmes suggested by the Department. Mr Hepi came forward and admitted his involvement in the incident immediately and has always expressed genuine remorse for the impact his reckless actions have had on the victim.

[24] I am of the view that intensive supervision would provide Mr Hepi with the rehabilitative programmes and monitoring by Community Probation while community work would enable Mr Hepi to contribute more positively to society. Such a sentence in combination is an appropriate response to an unintentional wounding caused by intoxication and a high degree of recklessness on the part of the appellant.

Result

[25] The appeal against sentence is allowed and the sentence of 18 months imprisonment quashed. In its place the recommendation of the pre-sentence report is adopted. Mr Hepi is sentenced to six months intensive supervision and 200 hours community work. The following special conditions are imposed in respect of the sentence of intensive supervision:

(a) to attend and complete an appropriate alcohol rehabilitation programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer;

(b) to attend and complete an appropriate positive lifestyle programme or any other anger management programme deemed suitable and to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer; and

(c) to attend and complete other appropriate programmes deemed suitable and to the satisfaction of a probation officer. The specific details of

the appropriate programmes shall be determined by a probation officer.

[26] In addition, the order to pay $4,000 emotional harm reparation to the victim is confirmed.

.....................................

Woolford J