Hallett v Police [2018] NZHC 648 (11 April 2018)

Last Updated: 23 April 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-149-000009 [2018] NZHC 648

BETWEEN	GILBERT GEORGE HALLETT Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 April 2018
Appearances:	M James for Appellant S F Gilbert for Respondent
Judgment:	11 April 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

HALLETT v NEW ZEALAND POLICE [2018] NZHC 648 [11 April 2018]

[1] Mr Hallett pleaded guilty in the District Court to charges of indecent assault, common assault and assaulting a constable in the execution of her duty. On 8 March 2018 Judge Cocurullo sentenced Mr Hallett to 18 months imprisonment.¹

[2] Mr Hallett appeals against sentence on the basis that the Judge adopted a starting point that was too high in relation to the charge of indecent assault. This led him to impose an end sentence that was manifestly excessive in all the circumstances.

The charges

[3] All of the charges were laid as a result of a series of incidents that occurred on the evening of 25 September 2017. At about 8 pm that evening Mr Hallett was in an area of Victoria Street in Hamilton where roading contractors were working. A person standing nearby told Mr Hallett to get off the road, no doubt because he was either placing himself in danger or interfering with the manner in which the contractors were working. Mr Hallett reacted by raising his forearm and placing it against the victim’s throat. He then pushed the victim backwards. The victim responded by pushing Mr Hallett away before calling the police. As the victim called the police, Mr Hallett returned and continued to push the victim whilst he was on the phone to the police.

[4] Mr Hallett then walked away from the scene and towards the second victim, a female. This victim told Mr Hallett to get off the road so that he would not be hurt. Mr Hallett then stood in front of the victim’s face in an attempt to intimidate her. Mr Hallett then reached out with both hands and grabbed the female victim’s breasts, thereby causing her to recoil backwards. The victim walked backwards away from Mr Hallett telling him not to touch her again. He ignored these entreaties and reached out again, grabbing at the victim’s breasts. Fortunately, a police patrol vehicle was in the vicinity and Mr Hallett was arrested. After he was placed in the police car, he filled his mouth with saliva and spat directly into the face of one of the constables in the patrol car.

¹ R v Hellett [sic] [2018] NZDC 4358.

The Judge’s decision

[5] Not surprisingly, the Judge took the charge of indecent assault as the lead charge. He selected a starting point of 15 months imprisonment in relation to that charge. He then applied an uplift of four months to reflect the other two charges that related to the constable and the first victim accosted by Mr Hallett. He applied a three month uplift to reflect the fact that Mr Hallett has a very lengthy list of previous convictions for similar offending. This produced an end sentence of 22 months imprisonment before taking into account mitigating factors.

[6] The Judge allowed a discount of four months, or just over 15 per cent, to reflect guilty pleas. These had been entered at varying stages. This produced the end sentence of 18 months imprisonment.

Decision

[7] Counsel for Mr Hallett contends on appeal that the Judge erred by selecting a starting point of 15 months imprisonment on the charge of indecent assault. Counsel agree that the starting point fell within the range of six months and two years imprisonment. Ms James for Mr Hallett has referred me to several cases in which sentences of around 18 months imprisonment have been imposed for more serious offending than that in the present case.²

[8] I consider these cases to be of little assistance, because they involve sexual offending designed for the gratification of the defendant. Mr Hallett’s offending does not share that characteristic. Rather, it appears to have been cynical and spiteful offending designed to embarrass, humiliate and cause great stress to the victim.

[9] In addition, it is has had very serious effects for the victim. The victim impact statement reveals that the victim has had ongoing consequences of a significant nature as a result of the offending and these are likely to persist for some considerable time.

2. Berryman v R HC Hamilton A91/98, 28 August 1998; R v Hohaia CA221/05, 17 October 2005; S (CA227/2017) v R [2017] NZCA 459; Ludlow v Police HC Dunedin CRI-2011-412-000028, 28 September 2011; Logan v Police [2013] NZHC 1631.

There is also the aggravating factor that Mr Hallett persisted with a second assault, even after the victim had told him in no uncertain terms to desist.

[10] Having regard to those factors, I do not accept that a starting point of six to nine months imprisonment would have been appropriate in relation to the charge of indecent assault. A starting point of 15 months imprisonment may have been at the top end of the range, but I consider it was still within the available range.

[11] Even if the starting point had been slightly high, the Judge applied totality principles when applying an uplift to reflect the other two charges. Each of those charges easily warranted an uplift of at least three months imprisonment. If that uplift was applied the same end result would be achieved, even if a slightly lower starting point was selected.

[12] No issue is taken with the level of uplift for previous convictions, and this is not surprising given the very lengthy list of previous convictions Mr Hallett has now amassed for very similar offending in the past. Similarly, no exception is taken to the credit given for guilty pleas. That being the case, I discern no error in the Judge’s end sentence, and the appeal cannot succeed.

Result

[13] The appeal against sentence is accordingly dismissed.



Lang J

Solicitors:

Crown Solicitor, Hamilton

Public Defence Service, Hamilton