Hodges v The Queen - [2011] NZCA 580

IN THE COURT OF APPEAL OF NEW ZEALAND

CA610/2011
[2011] NZCA 580

BETWEEN LAWRENCE IAN HODGES
Appellant

AND THE QUEEN
Respondent

Hearing: 7 November 2011

Court: Ellen France, Miller and Asher JJ

Counsel: R L Thomson for Appellant
B F Fenton for Respondent

Judgment: 18 November 2011 at 10 am

JUDGMENT OF THE COURT

The application for leave to adduce new evidence is granted but the appeal is dismissed.

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

The appellant was convicted after a jury trial of unlawfully getting into a motor vehicle, possession of a precursor substance, possession of equipment capable of being used in the manufacture of controlled drugs and possession of materials capable of being used to manufacture controlled drugs. He was sentenced to a term of imprisonment of 20 months by the trial judge, Judge Moses.[1]
[1] R v Hodges DC Manukau CRI-2010-092-5937, 2 September 2011.
The appellant appeals against sentence. The issue raised by his sentence appeal is whether the fact he has subsequently been diagnosed with cancer means a sentence of home detention should now be substituted.

Factual background

On 7 February 2010, police stopped a stolen car in which the appellant and another man were passengers. The driver of the vehicle drove off and, after a chase, stopped the car and fled. The second passenger also quickly left the scene. The appellant told the police he was hitchhiking and that he did not know the driver. He maintained that explanation at trial and in his pre-sentence report interview.
When police searched the car they found glass chemical equipment such as conical and reaction flasks, measuring jugs, a parr bomb and glass pipes together with bottles of chemicals and a notebook containing handwritten notes relating to the manufacture of illegal drugs and a list of chemicals. The appellant’s fingerprints were located on items in the boot of the vehicle. In light of that and the circumstances in which the appellant said he had been picked up, Judge Moses, who had presided over the trial, described the appellant’s explanation as “rather implausible”.[2]
[2] At [2].
The Judge said the evidence at trial showed that the chemicals taken from the car could have been used to manufacture drugs such as MDMA (ecstasy) or MDA, “either Class A or Class B depending on what drug” was made.[3] It did not appear that the items had been used for manufacture.[4]

The sentencing remarks

[3] At [4].

[4] At [3].

Judge Moses took a starting point of 21 months imprisonment. From that point, he made an uplift of three months to reflect the appellant’s previous drug-related convictions. The most recent of these was in February 2003 when the appellant was sentenced to four years imprisonment on possession and supply charges.
In terms of mitigating factors, the Judge took into account a short period of bail on restrictive conditions and the impact of imprisonment on the appellant’s wife. To recognise these matters, Judge Moses reduced the level of imprisonment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hodges v The Queen

Details

AGLC: Hodges v The Queen [2011] NZCA 580
Case: [2011] NZCA 580
Decision Date: 18 November 2011

CaseChat Overview and Summary

In the appeal case of Hodges v The Queen, Lawrence Ian Hodges, the appellant, sought to appeal against his sentence, arguing that his subsequent diagnosis of cancer warranted a substitution of his sentence of imprisonment with home detention. The case was heard by Ellen France, Miller, and Asher JJ of the Court of Appeal of New Zealand on 7 November 2011, with the judgment delivered on 18 November 2011. The appellant was represented by counsel R L Thomson, and the Crown was represented by B F Fenton.

The primary legal issue the court had to decide was whether the appellant's medical condition, specifically his diagnosis of cancer, should result in the substitution of his sentence of imprisonment with home detention. This issue arose from the appellant's argument that his medical condition met any concerns about personal deterrence, and that the trial judge had erred in his approach to home detention. The court needed to assess whether the new medical information provided a sufficient basis to revisit the sentence imposed by the trial judge.

The court found that the trial judge's approach to home detention was proper, as the judge had appropriately considered the need for personal deterrence and denunciation, and correctly concluded that home detention was not sufficient to meet those needs. The court also found that the appellant's medical condition did not alter the sentencing picture. The court held that the appellant's health could be managed in prison, and there was no evidential basis to conclude that the need for personal deterrence had fallen away. Therefore, the appeal was dismissed, although the court granted leave to adduce further evidence.

In summary, the Court of Appeal dismissed the appeal against sentence but granted leave to adduce further evidence, as the appellant's medical condition did not warrant a substitution of his sentence of imprisonment with home detention.

Orders