Hurring v Police [2020] NZHC 3309 (15 December 2020)

Last Updated: 23 December 2020

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000026 CRI-2020-412-000027 [2020] NZHC 3309

BETWEEN	STEPHEN JOHN HURRING Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 December 2020
Appearances:	D L Henderson for Appellant R D Smith for Respondent
Judgment:	15 December 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 15 December 2020 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: 15 December 2020

Introduction

• [1] Stephen Hurring was charged with threatening to kill, threatening to cause grievous bodily harm, possessing an offensive weapon and behaving threateningly. He was found guilty of behaving threateningly after a defended hearing, and pleaded guilty to the remaining charges. In a decision of 8 July 2020, Judge Crosbie sentenced

HURRING v NEW ZEALAND POLICE [2020] NZHC 3309 [15 December 2020]

Mr Hurring to two years and five months’ imprisonment.¹ Mr Hurring now appeals that sentence on the basis the starting point was manifestly excessive.

Facts

• [2] The charge of behaving threateningly arose from events on 11 November 2018. Mr Hurring went to the victim’s address and shared some beer with the victim and her boarder. A verbal argument took place, resulting in the victim asking Mr Hurring to leave and calling the police. Mr Hurring called her several insulting names and as he left he said, “I’ll get someone to burn down your house”, mentioning the name of an arsonist who was known to both of them.

• [3] The other charges arose on the evening of 15 August 2019. Mr Hurring was drinking at his neighbour’s house with several associates. He was highly intoxicated. At about 7.45 pm, Mr Hurring left the address and went across to his own house next door. He took two long-handled spears from his own property, returned to the neighbour’s house, and placed the spears against a cabinet in the lounge.

• [4] Soon after, Mr Hurring and the first victim got into a heated discussion. Mr Hurring grabbed one of the spears and pointed it towards the victim, approximately 30 to 40 cm from the victim’s body. Mr Hurring said, “I will put it through your heart”, then “I’m going to kill you with it”. Others present attempted to calm Mr Hurring, telling him to put the spear down.

• [5] Mr Hurring then turned the spear on the second victim, saying, “I could do the same to you, if I don’t get it through your heart I could stick it through your balls.” The third victim told Mr Hurring to stop, at which point he turned the spear towards her and said “be careful girl”. The third victim left the property, fearing for her safety.

• [6] A short time later, Mr Hurring was outside on the porch area with the first victim. Mr Hurring was again pointing the spear at the victim in a threatening manner. The victim told him to calm down, which he did, putting the spear down.

¹ R v Hurring [2020] NZDC 13139.

The victim was able to grab the spears and hide them from Mr Hurring, but Mr Hurring then became abusive and angry again, causing the victims to lock him out of the house.

• [7] Mr Hurring went over to his house and retrieved a large axe. He returned to the neighbour’s property, waving the axe threateningly. He attempted to jemmy open the door with the axe, but was unsuccessful. Police arrived a short time later.

District Court decision

• [8] Judge Crosbie outlined the facts of the offending and the effect it had had on the victims. He noted Mr Hurring has “persistently and consistently” come before the criminal justice system, with a number of convictions similar to the present charges. Judge Crosbie considered the relevant purposes of sentencing were accountability, denunciation, deterrence and rehabilitation.

• [9] The Judge had before him a pre-sentence report, psychological report and cognitive assessment. The pre-sentence report stated that Mr Hurring is known to consume alcohol and become disrespectful towards others, and that such disrespect is heightened by his feelings of persecution and animosity towards others in the community. That said, Mr Hurring also reportedly engages in “occasional public good”, such as getting firewood for his neighbours. The psychological report assessed him as presenting a moderate risk of further violent offending and lower risk of general offending behaviour. The cognitive assessment found Mr Hurring is likely experiencing cognitive decline due to a number of factors, which would contribute to him acting impulsively and aggressively.

• [10] Judge Crosbie took the events of 15 August 2019 as the lead offending. He accepted there was a level of premeditation in that he returned with a second weapon after being disarmed of the spears, but considered that had to be weighed against Mr Hurring’s level of intoxication and cognitive issues. He also accepted the Crown’s submission that the threats were made to two different victims, and that Mr Hurring was well positioned to carry out the threats. The Judge adopted a starting point of two years and three months, with an uplift of six months for the offending on 11 November 2018.
• [11] Turning to personal factors, the Judge uplifted the starting point by four months for Mr Hurring’s previous convictions. He allowed a 10 per cent credit for “personal issues” and a further 10 per cent for guilty pleas. The end sentence was therefore two years and five months’ imprisonment.

Principles on appeal

• [12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.² As the Court of Appeal mentioned in Tutakangahau v R quoting the lower Court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.³ It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.⁴ The focus on appeal is the end sentence, rather than the process by which the sentence was reached.⁵

Submissions

Appellant’s submissions

• [13] Mrs Henderson, counsel for Mr Hurring, refers to the Court of Appeal case Faaleaga v R as providing the key factors for assessing culpability in threatening to kill offending.⁶ The first of those is premeditation. In relation to the 15 August offending, Mrs Henderson submits there is no suggestion that Mr Hurring retrieved the spears in order to use them violently, or that there was any planning in relation to the threats made. His obtaining of the axe was an impulsive act in response to being locked out of the house.

² Criminal Procedure Act 2011, ss 250(2) and 250(3).

³ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

⁴ Ripia v R [2011] NZCA 101 at [15].

⁵ Islam v R [2020] NZCA 140 at [32].

⁶ Faaleaga v R [2011] NZCA 495.

• [14] In regard to the other factors in Faaleaga, Mrs Henderson notes the threats made to the two victims were made only once each — there was no repetition, nor was there a link to earlier violence. She accepts that, given Mr Hurring’s close proximity to the victims at the time of the threats, he was capable of inflicting harm at the minimum.

• [15] Mrs Henderson refers to four cases in support of a lower starting point:

(a) Allan v Police: following an argument with his partner, the appellant retrieved a rifle from his vehicle.⁷ The rifle had ammunition in it, but the chamber was empty. He pointed it at the victim’s head, saying “I’m deadly serious. There’s two bullets in here, one for you and then I’m going to kill myself.” He then said: “if you try and end this relationship I’ll kill you and then me”. The High Court upheld a starting point of 12 months for the threat to kill, noting that a starting point of 18 months to two years might well have been considered appropriate.⁸

(b) R v Sykes: the defendant, while intoxicated at a tangi, started yelling at the victim and smashing items in the house.⁹ He threatened family members before retrieving a pistol and pointing it at the victim, saying “I will fucking kill you”. He was restrained by his grandmother but continued to say “I’m going to kill you, I’m going to kill them”. The pistol was loaded but with the wrong calibre of ammunition, meaning it was not able to be fired. The High Court adopted a starting point of 18 months.

(c) Skerten v Police: the appellant waved a sledgehammer aggressively at the victim, making threats that the victim was going to “burn”.¹⁰ The appellant had methylated spirits in his hand at the time of the threat. A starting point of 15 months was upheld on appeal.

⁷ Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011.

⁸ At [33].

⁹ R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.

¹⁰ Skerten v Police [2015] NZHC 2882.

(d) R v Williams: there was a confrontation between the defendant and the victims after one victim made an inflammatory comment to the defendant.¹¹ The defendant smashed a car window and both parties then threw items at each other. The defendant was chased by the victims and eventually threw a sword or swords in their direction. He threatened to kill them while in possession of a sword. The High Court adopted a starting point of 12 months.

• [16] Mrs Henderson submits the starting point of two years and three months taken in the present case was manifestly excessive when compared with these cases. Taking into account all the circumstances she submits the maximum starting point would be between 18 and 22 months. No issue is taken with the uplift or discounts applied, and, applying them, an end sentence of 22 to 26 months would be reached. Mrs Henderson submits the difference is material enough to warrant allowing the appeal.

Respondent’s submissions

• [17] Mr Smith, for the Crown, submits the starting point was appropriate having regard to the aggravating features. In terms of the degree of premeditation, he argues that Mr Hurring retrieved the spears for the purpose of making the threat as the notes of the attending constable record Mr Hurring as saying: “[The first victim] threatened to kill me, came home got my spears went back”. Mr Smith submits that this suggests Mr Hurring retrieved the spears for the very purpose of a confrontation with the first victim. He then, of course, went and retrieved an axe as well. Mr Smith says this demonstrates a level of premeditation, but records the Judge was careful in terms of the weight he attached to that feature given Mr Hurring’s cognitive issues.

• [18] Mr Smith submits the Judge was correct to take into account that the threats were made to multiple people. He accepts the offending was not linked to any earlier violence but submits the Judge was also cognisant of that. Mr Smith submits Mr Hurring was plainly in a position to effect the threats he was making, and argues that this is an “essential” aggravating factor.

¹¹ R v Williams [2015] NZHC 2680.

• [19] Mr Smith submits the starting point of two years and three months was within range having regard to the nature of the lead incident, the presence of a number of victims and the fact that it occurred in another person’s home. In response to the authorities cited by Mrs Henderson, he submits those cases did not involve multiple threats or the retrieval of another weapon. He also notes that the lead offending occurred while Mr Hurring was on bail for the earlier offending. The Judge did not uplift for this aggravating feature and the end sentence should be assessed taking this into account.

• [20] Mr Smith adds that the guilty plea credit of 10 per cent was generous given Mr Hurring was convicted of the first incident following a trial and pleaded guilty to the second incident on the eve of trial. For all these reasons, he submits the end sentence was within range even if I take the view the starting point was stern.

Analysis

• [21] There is no tariff case for the offence of threatening to kill.¹² The maximum penalty for that offence is seven years’ imprisonment.¹³

• [22] In Allan, White J identified a number of factors that assist in determining the seriousness of threatening to kill offending.¹⁴ These include the degree of premeditation, the specificity of the threat, the apparent willingness to carry out the threat, the use of a weapon, the level of harm or fear caused to the victim and whether the threat was made directly to the victim.

• [23] In the present case those factors are relevant as follows:

(a) There was a level of premeditation, given Mr Hurring brought the spears over to the house before using them, and then later went back to his house to arm himself with an axe. However, as recognised by the Judge, the level of premeditation is lessened by Mr Hurring’s intoxication and cognitive issues.

¹² Burchell v R [2010] NZCA 314 at [25].

¹³ Crimes Act 1961, s 306.

¹⁴ Allan, above n 7, at [29].

(b) The threats were specific in terms of who they were aimed at, the weapon Mr Hurring intended to use and how he intended to use it.

(c) There was an apparent willingness and ability to carry out the threats given Mr Hurring was physically present and holding the weapon at the time he made them.

(d) The victims were, understandably, very frightened.

(e) The threats were made directly to the victims.

• [24] In addition to those features, Mr Hurring threatened more than one victim, and he retrieved a second weapon after the first was taken from him. Mr Hurring was also capable of carrying out the threats, as opposed to the cases of Allan and Sykes, where the firearms were not capable of being fired (albeit the victims were not aware of that). However, I accept the fear of the victims in those cases, when threatened with a firearm, may well be greater than in the present case.

• [25] In addition to the cases referred to by Mrs Henderson, I have considered two further cases. In Freakley v R, the appellant went to the victim’s house and waited for her to return.¹⁵ When she arrived he pointed a loaded shotgun at her and said “either you’ll die or I’ll die tonight”. Eventually the victim persuaded him to put the firearm down and was able to flee. The Court of Appeal held a starting point of three years’ imprisonment was within the available range.

• [26] In Boyland v Police Simon France J observed that, where a starting point is adopted for threatening to kill along with other lesser offences, all of the offending must be taken into account in assessing seriousness.¹⁶ In that case, the appellant pointed a loaded shotgun at his mother’s face and said “I [sic] going to shoot someone, or I could shoot you.” He then took the weapon with him, still loaded, and drove with it until stopped by police. The Judge considered that tranche of offending justified a starting point of at least two years.¹⁷

¹⁵ Freakley v R [2010] NZCA 497.

¹⁶ Boyland v Police [2015] NZHC 2463 at [9].

¹⁷ At [11].

• [27] In light of those authorities, I believe the starting point of two years and three months was on the high side. A starting point in the range of 18 months to two years would be more consistent with previous cases, noting I consider Sykes perhaps the most analogous case. However, if I take into account the fact the offending occurred while Mr Hurring was on bail for similar offending, I see no reason to adjust the starting point. The six month uplift for the other incident of offending was also appropriate, and took into account totality.

• [28] No issue has been raised with the uplifts or discounts applied by the Judge, nor can I see any reason for questioning them. The sentence was therefore within range and was not manifestly excessive.

Conclusion

• [29] The appeal is dismissed.

Solicitors:

Crown Solicitor, Dunedin

Copy to:

Deborah Henderson, Barrister, Dunedin