Department of Corrections v Hodgson HC Auckland CRI-2009-044-10450

[2011] NZHC 642

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-044-10450

CRI-2011-092-7633

IN THE MATTER OF     an application to cancel sentence of intensive supervision pursuant to s 54K of the Sentencing Act 2002

BETWEEN  DEPARTMENT OF CORRECTIONS Applicant

ANDJONATHAN JAMES HODGSON Respondent

Hearing:         15 June 2011

Counsel:         I M Brookie for Applicant

H D M Lawry for Respondent

Judgment:      15 June 2011

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL:

Meredith Connell (Auckland) for Applicant

HDM Lawry (Auckland) for Respondent

DEPARTMENT OF CORRECTIONS V HODGSON HC AK CRI-2009-044-10450 15 June 2011

Application

[1]      This is an application  by a probation officer for an order cancelling the sentence of intensive supervision imposed by me on Mr Hodgson on 28 September

2010.  The statutory authority is s 54K of the Sentencing Act 2002.  The grounds for the application are that Mr Hodgson is unable to comply, or has failed to comply, with any of the conditions of the sentence.  That aspect is disputed and, although a charge of breach of the conditions of the sentence of intensive supervision has been laid in the District Court, no plea has yet been entered to that charge.  Mr Lawry has addressed me on the circumstances that he submits gives cause to defend the charge. However, what is evident, and this is the basis upon which I will proceed, is that the

programme1  is no longer available and that in itself triggers the need to revisit the

sentence.

Background

[2]      The background to this matter is that Mr Hodgson pleaded guilty to the attempted murder of his mother.  Because of the factors set out in the sentence, I held that intensive supervision was the appropriate way of assisting Mr Hodgson and the community to move forward.   Accordingly, I imposed a sentence of two years’ intensive  supervision  and  200  hours  of  community  work.    Special  conditions included that for the first 12 months he was to reside at Victory Outreach at Kingseat in Papakura.  He was to abide by a 24-hour curfew for the first six months of the sentence.

[3]      I concluded my sentencing remarks as follows:2

The purpose of this sentence then is to give you time and to give the State time to address the difficulties that you have.  That is not going to be easy for you.  The alternative is to be recalled to prison.  I do not think that would do you any good.  I do not think it will answer the needs of this case.  But it is always a fallback position.  This is an opportunity that you are being given and I hope that you embrace it and make the best of it.

1      The Victory Outreach programme, the prisoner’s attendance at which was the basis of the

sentence of Intensive Supervision.

2      R v Hodgson HC Auckland CRI-2009-044-10450, 28 September 2010 at [23].

[4]      I have heard a number of submissions this morning on the reasons why the Victory Outreach programme is no longer available to Mr Hodgson.   The broad factual basis is that Mr Hodgson’s behaviour at the Victory Outreach facility has meant that the programme no longer feels that he can participate in it and, accordingly, he is no longer welcome to be there.

[5]      There are comments in the pre-sentence report which give me concern.  They relate to Mr Hodgson’s mental health condition and his acceptance or otherwise of the culpability of the actions which led him to be subject to the sentence of the Court.

[6]      However, none of that can really be taken into account by me at this stage. The law is clear.  When a person who is sentenced to intensive supervision is unable to complete the term of intensive supervision, the Court has to consider how it would have sentenced him had intensive supervision not been available in the first place. The focus has to be on the sentence which could have been imposed in the first place.  There can be no sanction given for the failure to comply with the sentence of intensive supervision and the resentencing must take into account the relevant circumstances including the fact that it was initially thought that a community-based sentence was applicable.

Re-sentence (remarks to Mr Hodgson)

[7]      In this case I considered that a sentence of two years’ imprisonment would have been appropriate but for the sentence of intensive supervision.  That does not mean that I now simply re-impose the sentence of two years’ imprisonment.  I have to take into account what restrictions have been placed upon you subsequently.  In this regard I note that you have completed six months at Victory Outreach on a 24- hour curfew.  I also note that you have fully completed the 200 hours of community work, which was a part of the original sentence.  Those matters are, in my view, of significance.

[8]      There is no alternative residential programme available to you at the present time. The Crown submits, and Mr Lawry on your behalf accepts, that a short term of

imprisonment is inevitable, and indeed the only option available to me. The Crown’s submissions are that that period should be 20 months’ imprisonment; Mr Lawry’s view is, taking into account all of the efforts that you have made, that 15 months’ imprisonment is more realistic and more fair.

[9]      I agree with Mr Lawry.  Accordingly, your sentence of intensive supervision is cancelled.  I substitute for it a sentence of 15 months’ imprisonment and I impose the following special conditions to take effect on your release:

(1)To  undertake  and  complete  any  counselling  or  programmes  as directed by the supervising parole officer;

(2)Not to have contact with the victim, your mother, without the prior written approval of your probation officer;

(3)Not to have contact, directly or indirectly, with your wife.  However, your wife may, at her behest, have contact with you;

(4)To emphasise the importance of the point, I also direct that you live and work where directed by your supervising parole officer;

[10]     I  consider  it  to  be  of  the  highest  importance  that  you  are  given  the opportunity to complete the mental health therapies that you clearly need.

[11]     What remains is the matter of the charge against you for allegedly breaching the terms of your intensive supervision.

[12]     The District Court has transferred that charge to this Court.   I can well understand why the District Court Judge did that.  As a matter of common sense, it would be best for this Court to be the one to deal with that charge.  However, having looked at the law, although I have to say not having had too much time to do that, I find  myself  in  agreement  with  the Crown.    I do not  consider that  the relevant provisions of the Summary Proceedings Act 1957 permitted the District Court to decline jurisdiction and send that charge to the High Court.  Accordingly, I remit the

charge back to the District Court to be dealt with in the summary jurisdiction.  Stand

down.

Brewer J