Hodge, Timothy Adam v The Queen

[2008] NSWDC 357

CITATION:	Hodge, Timothy Adam v R [2008] NSWDC 357
JUDGMENT DATE:	15 August 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Set aside sentences of Magistrate and instead impose the following sentences : in respect of crime of malicious damage the offender is convicted and fined $500, in respect of the crime of resisting arrest committed on 20 July 2007 he is convicted and fined $750, in respect of the intimidation offence a sentence of 4 months imprisonment in imposed, to be wholly suspended on the condition that he enters into a good behaviour bond for 4 months, in respect of the offence of resisting arrest committed on 17 August 2007 he is sentenced to 50 hours community service, in respect of the offence of assault he is sentenced to 50 hours community service to be served cumulatively.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - malicious damage - resist arrest - intimidating a person - assault - intimidate off-duty police officer - aggravated by victim police officer and on s 9 bond at time of offence - age as significant factor
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 s 20 Crimes (Sentencing Procedure) Act 1999 s 8, s 9, s 21A Crimes Act 1900 s 61
PARTIES:	Timothy Adam Hodge Regina
FILE NUMBER(S):	2008/9976
COUNSEL:	Mr Allen (appellant)
SOLICITORS:	Director of Public Prosecutions

JUDGMENT
1. I am hearing an appeal by Timothy Adam Hodge. His appeal to me is from sentences imposed on him by a Magistrate.

2. The sentences were imposed on 16 June 2008 at the Forbes Local Court. On that day Mr Hodge was sentenced for five crimes. One was malicious damage committed on 31 March 2007. The second was resisting arrest committed on 20 July 2007. The third was intimidating a person committed on 17 August 2007. The fourth was resisting arrest committed on the same day and the fifth was assault committed on 30 September 2007.

3. For all of those crimes the Magistrate sentenced Mr Hodge to imprisonment. The prison sentences varied but the overall result was twelve months imprisonment with a non-parole period of nine months.

4. Briefly what happened is this. So far as the malicious damage was concerned, Mr Hodge was convicted by the Magistrate - after a defended trial - of damaging a petrol bowser at a local service station. There did not appear to be any other aggravating circumstances but the behaviour was immature and unprovoked. He has apparently paid the compensation.

5. The first resist arrest occurred on 20 July 2007. He was drunk and disorderly in public. Police arrived. They tried to calm him down and send him away, he was abusive to them. In particular he singled out a police officer who was a woman and used very abusive language towards her. The police in my opinion acted very tolerantly. At first they arrested him but then when he got away they suggested to his girlfriend that she take him home and they would issue a summons.

6. Not content with that suggestion Mr Hodge took on the police again and continued his verbal abuse. It is not the kind of abuse that anyone in the community should tolerate and in particular the police who were merely trying to do their job that evening. In the end they arrested him and in the course of that arrest he had to be tackled to the ground. He continually thrashed his body about and attempted to lift himself off the ground. He had to be handcuffed and physically placed into the police vehicle.

7. The offence committed on 17 August 2007 - the resist arrest - occurred when police were trying to arrest Mr Hodge after his behaviour which amounted to intimidation which I will return to shortly. When they tried to arrest him he put both feet forward in front of him on the ground in order to resist the efforts of the police in moving him. A struggle occurred and two or three police were required to put him into the custody of the police vehicle.

8. I regard the malicious damage as low in the range of objective seriousness. I regard the two offences of resist arrest as standard offences of resist arrest; they are not serious instances of that crime. As I said the behaviour is not to be condoned and the police in my view acted very reasonably and should not be required to tolerate such behaviour. But the resisting arrest was not accompanied by any particularly aggravating features.

9. The offence of intimidating a person which was also committed on 17 August 2008 is in a different category. The person intimidated was an off-duty police officer which was an aggravating feature under s 21A of the Crimes (Sentencing Procedure) Act 1999. In addition, at the time of committing that offence Mr Hodge was on a bond imposed under s 9 of the same Act for a previous offence of assaulting an officer in the execution of their duty.

10. Although being on the bond was also an aggravating feature of the two resist arrests I regard the aggravation as more serious in the case of the intimidation focused on a particular police officer.

11. The off-duty police officer, Detective Sergeant Howard, was accompanied by his female partner. He reported that Mr Hodge had been verbally harassing him. Both Mr Howard and Mr Hodge argued. Mr Howard and his partner walked away but Mr Hodge remained and continued his verbal abuse of Detective Sergeant Howard. In fact at one stage he called out to him “You’re dead you cunt”. But not long afterwards Detective Sergeant Howard received a telephone call on his personal mobile phone. He recognised the voice of Mr Hodge. Mr Hodge said “You’re a putrid dog, you’re a dog, why don’t you come down here and fight me like your dog, you’re gone.” Detective Sergeant Howard immediately terminated the call and reported the incident.

12. Understandably Detective Sergeant Howard felt threatened and intimidated due to the threat which had been previously made in the street, the fact that Mr Hodge had obtained his personal mobile phone number and the threat of physical violence. I regard the closeness of time between the threat in the street of “You’re dead cunt” and the threat made on the phone which was concluded by the words “You’re gone” to cause in any person a concern for their well being and indeed their life.

13. I regard this as an offence which - because of its aggravating features of being inflicted upon a police officer and whilst he was on conditional liberty for assaulting a police officer - is particularly serious. So far as its objective seriousness is concerned it is within but not far within the middle of the range of objective seriousness.

14. The last offence that Mr Hodge was convicted of was an assault. That occurred on 30 September 2007. A man left a hotel with some companions. Mr Hodge challenged him but the man kept walking. Mr Hodge then pursued the man, verbally abused him. The man who obviously knew Mr Hodge asked what his problem was. Mr Hodge’s response was to grab hold of the man’s shirt but Mr Hodge would not let go. A security officer intervened and the man stepped back but as he did so Mr Hodge swung his left arm and struck the man in the face with a closed fist causing him to stumble back. Hence he was charged with assault under s 61 of the Crimes Act 1900.

15. I have heard evidence which I accept and which I regard as impressive from Mr Hodge’s mother. I do not propose to recount all of her evidence. Mr Hodge is obviously from a close and supportive family. She as his mother has observed his behaviour over the years. He reacted adversely to the death of two friends, one of them a very close friend, in a car accident some years ago. She noticed a change in his mood and behaviour and drinking and behavioural habits.

16. At some time also there was an incident between Mr Hodge and the police. It was relatively minor but provoked a complaint by Mrs Hodge to the Commissioner. The complaint resulted in the initial charge not being proceeded with. So far as Mr Hodge is concerned he was dealt with inappropriately by the police. There followed over some years a good deal of friction between Mr Hodge and the police in Forbes where Mr Hodge lives. With his mother’s encouragement but also on his own initiative, Mr Hodge undertook counselling and this has been quite successful to date.

17. He has had a mixed history of employment but has some skills and has secured employment at various stages which he has kept. One period of employment was interrupted by the fact that he kept becoming the centre of attention by the police. However he expects to obtain employment on a property in Gooloogong not far from Forbes in the near future.

18. There is a pre-sentence report which recommends his suitability for community service orders and eligibility and suitability for periodic detention orders. It notes a need for anger management and focus on alcohol consumption and suggests that he would be suitable for a medium level of supervision.

19. There are also references from respected persons in the community who, I accept, know about his offending behaviour and who point out that he is from a strong and supportive family and, in one case, expresses the opinion that he will mature and prove himself as a result of these adverse experiences. These adverse experiences I might add are crimes committed by him.

20. He has a criminal record. It includes as I said an offence of assaulting an officer in the execution of their duty. That was committed in July 2006 and he received a good behaviour bond in January 2007. He has convictions for goods in custody and a driving conviction as well for driving in a manner dangerous.

21. Mr Hodge was born on 5 November 1987 so that he is not yet twenty-one.

22. Mr Allen who appears for Mr Hodge submits that the matters could be dealt with with a combination of community service orders and bonds under s 9 of the Crimes (Sentencing Procedure) Act.

23. Mr Monaro who appears for the respondent Director of Public Prosecutions acknowledges the fact that the two resist arrests were fairly standard examples of that crime and that the malicious damage was not so serious as to warrant imprisonment. However he pointed out that the intimidation of the off-duty police officer was in another category and I accept that submission. He drew my attention to the two aggravating features to which I have referred.

24. Both legal representatives regarded the assault on the man outside the hotel as a significant crime but not a serious example of that kind of offence.

25. I regard the intimidation as the most serious of the offences, aggravated as it is for the reasons that I have indicated. Because he was already on a good behaviour bond for assaulting the police and because he chose as his victim a police officer, I regard those two aggravating features as serious enough to warrant a sentence of imprisonment.

26. I have considered the alternatives and because of those aggravating features I do not regard them as appropriate. However I regard Mr Hodge’s age as a significant factor. The authorities make it clear that a younger offender should be dealt with by a sentence with more emphasis on the prospects of rehabilitation rather than deterrence and denunciation. This is for a number of reasons but one is well illustrated in this case. It seems to me that because of his youth Mr Hodge reacted immaturely to a number of unfavourably early life experiences - one being very tragic. His immaturity has produced violence and offensive crimes. However, he seems to be on the way to rehabilitation and I regard sentences which will encourage that course of rehabilitation as more appropriate than sentences which involve full-time or part-time custody. For that reason I propose to impose a sentence in due course for the intimidate offence which I will suspend.

27. I regard the malicious damage as a crime which should attract a fine and the first offence of resisting arrest as also one which should attract a fine. However in respect of the second resist arrest, although objectively less serious, it was committed after he had already been charged and indeed pleaded guilty to the first resist arrest. I propose to impose a community service order in respect of that crime and a community service order in respect of the assault.

28. I regard the sentence fixed by the Magistrate for the intimidation - of four months - as appropriate but I will suspend that sentence.

29. Accordingly I determine this appeal against sentence as follows. Under s 20 of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentences of the Magistrate. Instead of those sentences I impose the following sentences:

· In respect of the crime of malicious damage the offender is convicted and fined $500.

· In respect of the crime of resisting arrest committed on 20 July 2007 he is convicted and fined $750.

· In respect of the intimidation offence committed on 17 August 2007 I impose a sentence of imprisonment of four months and I make an order suspending the execution of the whole of that sentence for the whole of the period and I direct that Mr Hodge be released from custody on condition that he enters into a good behaviour bond for four months.

· The conditions of that good behaviour bond are as follows:

(1) That he be of good behaviour.

(2) That he notify the registrar of this court of any change of his residential address.

(3) That he appears in court at any time if called upon to do so.

(4) That he accept supervision from the New South Wales Probation and Parole Service and accept any reasonable recommendations or directions of that Service, particularly as they relate to maintaining current alcohol and drug counselling, intervention and attending additional alcohol and drug counselling or programme; maintaining current anger management counselling interventions and attending upcoming anger management group programmes, monitoring peer relation and impact of these relations on criminal behaviour.

(5) That he reports to the officer of the Probation and Parole Service at Forbes on or before Monday 25 August 2008.

· In respect of the offence of resisting arrest committed on 17 August 2007, instead of imposing a sentence of imprisonment, under s 8 of the Crimes(Sentencing Procedure) Act 1999 I make a Community Service Order directing Mr Hodge to perform community service for fifty hours.

· In respect of the offence of assault committed on 30 September 2007, instead of imposing a sentence of imprisonment, I make a Community Service Order directing the offender to perform community service for fifty hours. Those hours are to be cumulative so that the total number of hours is 100.

Mr Monaro are there any other orders I need to make?

MONARO: No your Honour. I was just concerned whether your Honour can suspend a short sentence.

HIS HONOUR: It’s just got to be under two years.

ALLEN: Yes.

MONARO: Thankyou your Honour nothing further.

HIS HONOUR: Yes s 12 yes. Mr Allen is there anything else?

ALLEN: No.

30. Mr Hodge you have won your appeal. You’ve been successful. Your behaviour has been dreadful but you’ve heard that I’ve taken into account what’s been happening in your life. I’m sure other judges or rather Magistrates made this speech to you before but you’ve just got to pay attention. You’re a young man, you come from a good family. They’re supporting you, it looks as though you’re on the right track but you’ve just got to stay out of trouble. You’ve got to take note of what they’re saying about alcohol and anger management, get yourself back on track and stay away or else you’ll end up in gaol. You heard me say that for a young man your age judges don’t like sending them to gaol, it’s a kind of experience that you’ve now had for a few days and you can tell why. I’ve fined you for the two of the offences but for what you did to the police officer I’ve given you a suspended sentence of four months. Now if you breach that suspended sentence you’ll come back before me or another judge and it is very difficult to avoid gaol, do you understand that?

APPELLANT: (no verbal reply)

The cards are stacked against them with these suspended sentences. If you come back it’s very hard to avoid gaol. For the other - the resist and the assault - I’ve given you Community Service Orders. Pnce again you’ve got to do that, you’ve got to do your 100 hours and if you breach or you don’t then chances are you’ll be brought back and you’ll have to have other sentences considered. Do you understand that?

APPELLANT: Thankyou your Honour.

HIS HONOUR: All right well good luck.

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