Hewes v Police [2015] NZHC 1607 (9 July 2015)

Last Updated: 14 July 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000040 [2015] NZHC 1607

BETWEEN	BRENDAN PAUL HEWES Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	9 July 2015
Appearances:	B Ayrey for Appellant C E Butchard for Respondent
Judgment:	9 July 2015

_{ORAL JUDGMENT OF GENDALL J}

Introduction

[1] In February 2015 Mr Brendon Hewes pleaded guilty to one charge of injuring with intent to injure, one charge of breaching a protection order, and one charge of burglary.¹ On 10 April 2015, Mr Hewes was sentenced in the District Court to two

years’ four months imprisonment.² Mr Hewes now appeals that decision on the

stated basis:

That the learned Judge erred/double counted the aggravating features and that the end sentence was manifestly excessive and disparate with other cases.

¹ Crimes Act 1961, ss 231(1)(a) (burglary – maximum penalty of 10 years’ imprisonment) and

189(2) (injuring with intent – maximum penalty of 5 years’ imprisonment); Domestic Violence Act 1995, ss 19(1)(a), 49(1)(a) and 49(3) (breach of protection order – maximum penalty of 3 years’ imprisonment).

² _{Police v Hewes [2015] NZDC 5953.}

HEWES v NEW ZEALAND POLICE [2015] NZHC 1607 [9 July 2015]

Factual Background

[2] Turning now to the factual background in this matter, a temporary protection order was made against Mr Hewes on 17 March 2014. At 1 pm on the afternoon of

11 October 2014, Mr Hewes went to the victim’s home, to which initially she consented. Part way through that meeting, Mr Hewes became angry. The victim then asked Mr Hewes to leave, with which request Mr Hewes complied.

[3] At 7.30 pm on the evening of 11 October, the victim left her house with a young child to go to the nearby shops. When she was leaving, she ensured the house was secure by locking all doors and latching the windows. She kept the key to the house and, importantly, the locks had already been changed to prevent Mr Hewes getting into the house.

[4] Sometime between 7:30 p.m. when the victim left her house and approximately 8:30 p.m. that evening when the victim returned to her home, Mr Hewes had gone to the house, climbed over a fence, obtained some implements, and prised open a window to the kitchen. Through further efforts Mr Hewes gained access to the house. Once the victim got home, Mr Hewes approached her, grabbed the backpack she was wearing, and asked her for cigarettes and money. She tried to back away. Mr Hewes pinned her to the corner of the kitchen by grabbing a handful of her hair and her shoulder. She repeatedly begged Mr Hewes to leave while he demanded a cell phone be returned to him. The victim’s young son ran into the backyard of the address and began screaming for help.

[5] Inside the house, Mr Hewes was verbally abusing the victim before swinging her around by the backpack she was wearing. She lost control of the backpack, leaving it in Mr Hewes’ hands. When the victim tried to regain possession of the bag, Mr Hewes struck her once to the face, causing her to fall to the ground. When the victim tried to regain her feet, he kicked her once to the face with his left foot before stating “do you want another one, I’ll fucking kill you bitch”. The victim managed to escape to her neighbours. From the property Mr Hewes took $20 cash and a packet of tobacco. He left the address a short time later.

Appeal jurisdiction

[6] Turning now to the appeal jurisdiction here, Mr Hewes is able to appeal the sentence imposed as of right.³ This Court, as first appeal Court, will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.⁴ The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 remains the same as that under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).⁵ His Honour Toogood J recently captured the essence of the test in Larkin v Ministry of Social Development:⁶

[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[7] Specifically in relation to appeals challenging an uplift for previous convictions, the Court of Appeal has commented:⁷

On appeal, an assessment of the judge's evaluation will inevitably take place within the context of an inquiry into whether the final sentence is of an available type, and if so, whether it has been shown to be manifestly excessive. No specific rules can or should be prescribed.

[8] The ability of counsel to point to discrete, and often trivial, errors in the sentencing notes of a Judge, sitting in a busy list court, is far from determinative. In addition to the identification of error, the appellant must persuade the appeal court that the ultimate sentence imposed was outside the range available to him or her. This does not simply entail pointing to a single case where another judge, on another day, presiding over a case with different facts, imposed a different sentence.

District Court decision

[9] I turn now to the District Court decision under appeal. In the District Court

_{Judge Kellar took the injuring with intent to injure charge as the lead offence. His}

³ _{Criminal Procedure Act 2011, s 244.}

⁴ _{Sections 247 and 250.}

⁵ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.}

6. Larkin v Ministry of Social Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].

⁷ Ripia v R [2011] NZCA 101 at [10].

Honour then referred to the tariff case Nuku v R.⁸ Judge Kellar considered the aggravating features to be the violence, the unlawful entry into the victim’s home, the extent of harm caused, an attack to the head with risk of serious injury and the vulnerability of the victim. In terms of purposes and principles of sentencing, His Honour considered there was a need here to hold Mr Hewes accountable, to provide for the interests of the victims, to promote a sense of responsibility in Mr Hewes, and to highlight issues of deterrence and denunciation.

[10] As to personal circumstances, Judge Kellar stated at paras [13] – [14]:⁹

... it is [an] aggravating factor that you have got I think a five – or six – page criminal history that includes some very serious offending. Relevantly for today’s purposes, there are convictions for demanding to steal, threatening to kill, assault with a blunt instrument, common assault and, as long ago as

1992, admittedly, an aggravated robbery. All of those inform me that you have a propensity for violence, something that is borne out in the provision of advice to the Court.

That said, there are a number of positives. You appear to be genuinely motivated to change the factors that clearly underlie this offending. There are probably two of them: abuse of alcohol and an underlying propensity for violence. That said, given this behaviour, your age and your criminal history, you are assessed at being a medium risk of further offending and of harm.

[11] On the injuring charge, which was taken as the lead offence, Judge Kellar took a starting point of two and a half years. This was uplifted by a further six months to reflect the other offending. That was further uplifted by six months to account for Mr Hewes’ history of violent offending. However, from that a discount of four months was allowed for what His Honour saw as genuine steps to rehabilitate himself. That left a sentence of three years, two months imprisonment, from which a full discount of 25 per cent was allowed for early guilty pleas, which amounted to

10 months when rounded. Thus, the end sentence was one of 28 months’

_{imprisonment, or two years, four months.}

⁸ Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39. I note that Nuku built upon R v Taueki [2005]

3 NZLR 372 (CA), which is the tariff case for GBH offending, and supplanted R v Harris [2008] NZCA 528, previous guidance on sentencing for injuring with intent to injure.

⁹ At [13]–[14].

Resolution

[12] Before me, counsel for the parties seem to be agreed that Judge Kellar correctly identified this offending as falling within band two of Nuku v R.¹⁰ Band two is described in Nuku as follows:¹¹

Band two: a starting point of up to three years' imprisonment will be appropriate where three or fewer of the aggravating features listed at [31] of Taueki are present.

[13] For the purpose of clarity, I also however set out the other available bands:¹²

Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender's culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

...

Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating feature of such gravity that it would generally require a starting point within band three, even if there are few other aggravating features.

[14] When determining which band any given offending falls into, the Court of

Appeal in Nuku stated:¹³

... sentencing is an evaluative exercise, rather than a formulaic one.

...

We emphasise that a sentencing judge needs not only to identify aggravating factors but also to evaluate the seriousness of a particular factor. One very serious aggravating factor could have the effect of lifting the offending into a higher band. Equally, if a number of aggravating factors are present but only in a mild form, that may result in the offending being placed in a lower band. The level of seriousness of the aggravating factors will also, of course, affect where an offence is positioned within a band.

Finally, we emphasise that the guidance given in this judgment is not to be applied in a formulaic or mechanistic manner. When setting the sentence in a

¹⁰ _{Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.}

¹¹ _{At [38].}

¹² _{At [38].}

¹³ At [40], [42]–[43].

particular case, the sentencing judge needs to stand back and undertake an overall assessment of the seriousness of the offending.

[15] As I have said, the parties appeared to agree that band two of Nuku was appropriate, and that a starting point of up to three years’ imprisonment was available. However, Ms Ayrey, counsel for Mr Hewes, submits that Judge Kellar erred in noting several matters as identifying factors, but also providing a further uplift for other concurrent offending. This is because the matters which were treated as aggravating factors on the lead charge of injuring with intent to injure were inherent traits of the other offending. Thus it is contended there was double counting.

[16] For example, on the injuring with intent charge, an aggravating feature was said to be “unlawful entry and presence in the victim’s own home”. However, Ms Ayrey contends that this is an inherent aspect of a burglary charge. She says that to take account of it as an aggravating feature, while also providing an uplift for that concurrent burglary charge, is to double count. Ms Ayrey similarly applies this reasoning to Judge Kellar taking the victim’s vulnerability as an aggravating feature, but also uplifting for the concurrent breach of protection order charge, when vulnerability of victims is inherent in the granting of a protection order.

[17] I accept that on the face of it there may be an appearance of double counting here. I will therefore address the exercise of sentencing afresh to ascertain both the acceptability of Judge Kellar’s approach and whether the ultimate sentence imposed was within the available range. From Taueki, the relevant aggravating factors in this case are:¹⁴

(a) violence: the punch to the face by Mr Hewes, along with the kick to the face, was completely unprovoked and gratuitous.¹⁵ I consider this factor present to a moderate degree.

(b) premeditation: there is at least a moderate degree of premeditation here. Mr Hewes lay in wait, to some extent, obtained tools, gained

¹⁴ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).}

¹⁵ At [31](a).

ingress to the victim’s house and then attacked her when she

returned.¹⁶

(c) serious injury: the injuries the victim sustained were not extremely serious, though her nose was fractured and she will require surgery for that. I consider this factor present to a low to moderate degree.¹⁷

(d) attacking the head: the two blows inflicted upon the victim by Mr Hewes were a punch and a kick to the head. In particular, the kick to the head while the victim was trying to regain her feet was somewhat brutal. However, I recognise they were two isolated

attacks.¹⁸

(e) facilitation of a crime: the summary of facts, it seems to me, discloses that the motivation behind Mr Hewes' attack was, at least in part, for the purpose of facilitating the commission of his further crime of burglary. In particular, he utilised violence to obtain the victim’s backpack, from which he ultimately took the money and tobacco.¹⁹

(f) vulnerability of victim: the victim was a single mother, with a nine year old child in her care. In addition, she lived alone and was already sufficiently concerned about Mr Hewes that she had arranged for the locks in the house to be changed. Further, she had obtained a protection order against Mr Hewes. The aggregation of these considerations lead to the conclusion that the victim was quite

vulnerable.²⁰

(g) lastly, home invasion: it is beyond question that this offending involved a home invasion. Mr Hewes obtained tools and forced his way into the house, causing not insubstantial damage as he did so. As

_{was said in Taueki, “the Courts have repeatedly emphasised the}

¹⁶ _{At [31](b).}

¹⁷ _{At [31](c).}

¹⁸ _{At [31](e).}

¹⁹ _{At [31](f).}

²⁰ At [31](i).

importance of recognising the sanctity of the home and insisted that violence occurring in a person’s house is to be treated as an aggravating factor calling for a higher sentence”. The home invasion here is all the more egregious in this case because the victim had taken specific steps to protect her home from Mr Hewes, as I have noted, by changing locks and obtaining a protection order.

[18] For completeness, I note also that in Taueki, the Court stated “... the fact that the offending was witnessed by a child are factors which took this offending outside the ordinary range of offending”.²¹ In this case, Mr Hewes’ offending occurred in the presence of the victim’s autistic child, who eventually went to the back yard and screamed for help. This could itself be treated as a further aggravating feature, though I take it no further. Equally, the facts disclose that during the course of Mr Hewes’ attack he threatened to kill the victim. The Crown states that this could be a further aggravating feature.

[19] Having undertaken this exercise, I agree that Judge Kellar’s approach was not correct when he took into account certain aggravating features of the injuring with intent to injure, and also provided an uplift for the other concurrent offending, which was largely captured in those aggravating features. That said, I do not agree that the sentence imposed was outside the available range. Indeed, I do not share the view that this offending falls into band two of Nuku.

[20] When one steps back and reviews the totality of Mr Hewes’ offending in the round, accounting for all offending, this offending falls somewhere near the bottom end of band three of Nuku, justifying a starting point of between three and three and a half years’ imprisonment. On this, there would be no further uplift as Mr Hewes’ other offending is wholly encapsulated in that starting point.

[21] Turning to personal features, I do not consider the uplift of six months open to question. This matter was recently canvassed in Reedy v Police.²² Mr Hewes’

_{history here discloses a predilection for violence generally. That is a concern}

²¹ _{At [82].}

²² Reedy v Police [2015] NZHC 1069.

(together with the home invasion and serious assault on the young woman here in breach of the protection order) upon which the Court must focus. I do not consider objectionable the uplift by itself comprising, as it did, around 17 per cent of the adjusted starting point. Thus, the uplift is unobjectionable. This is particularly so when balanced against the undoubtedly generous discount of four months for steps Mr Hewes has taken to rehabilitate himself. Finally, on the topic of personal mitigating features, the full discount of 25 per cent was also generous in this case, even though his guilty plea did come early.

[22] As implored by counsel for Mr Hewes, I have also cross-checked this sentence against the cases which Ms Ayrey considers comparable.²³ While those cases do provided assistance, none are directly translatable to the current offending, which, in combination, I view as very serious.

[23] Therefore, while I accept that there may have been a potential error in the manner adopted to arrive at the sentence finally imposed here, I do not consider the ultimate sentence to be outside the range available to Judge Kellar. Indeed, in some ways the sentence might be seen as a lenient one when one steps back and views in the round the totality of the offending and the generous discounts given.

Outcome

[24] For all the reasons I have outlined above, this appeal is dismissed.

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

Gendall J

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch

²³ DJM v Police [2012] NZHC 3402; R v Abbott [2013] NZHC 62; R v Collins [2012] NZHC

2850.