Hodgkinson v R
[2012] NZCA 478
•17 October 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA368/2012 [2012] NZCA 478 |
| BETWEEN CHRISTOPHER MICHAEL HODGKINSON |
| AND THE QUEEN |
| Hearing: 9 October 2012 |
| Court: Ellen France, Ronald Young and Andrews JJ |
| Counsel: S A Saunderson-Warner for Appellant |
| Judgment: 17 October 2012 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentence of two years and 11 months imprisonment on the injuring with intent charge is quashed. A sentence of two years and eight months imprisonment, to be served concurrently with the other sentences imposed by the District Court, is substituted. Those other sentences stand.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
The appellant pleaded guilty to charges of injuring with intent to injure, burglary and assault with a weapon. He was sentenced by Judge Phillips to a term of two years and 11 months imprisonment for this offending and for charges laid summarily of wilful damage and possession of cannabis.[1] He appeals against his sentence.
[1] R v Hodgkinson DC Invercargill CRI-2011-025-3364, 13 June 2012.
The primary ground of the sentence appeal is that the starting point adopted was too high given the nature of the injuries to the victim. The other issue on the appeal relates to the uplift for the appellant’s previous convictions.
Factual background
The appellant was one of a group of five who went to an address in Invercargill on 5 October 2011.[2] The events of that night resulted in two men at the address being assaulted and left the occupants fearful.
[2]There was a sixth person in the group but there is limited information about her and any role she played.
It appears that the instigator of these events was the appellant’s brother, David Hodgkinson. David Hodgkinson was the subject of a protection order. The order related to David Hodgkinson’s former partner, Brooke Chalmers. Ms Chalmers had entered into a new relationship with Nicholas Hayes. When David Hodgkinson discovered this he became upset. He breached the protection order by texting Ms Chalmers.
David Hodgkinson, the appellant and the others then travelled to the home of Ms Chalmers and her two young children. The appellant entered the house first. He took with him a knife with a 15 centimetre long blade. Judge Phillips in sentencing the group summarised what happened next as follows:
[5] At the house, [the appellant] enters through a ranchslider. He goes straight to [Mr Hayes] and [Mr Hayes] tries to back off. [Ms Chalmers] sees that [the appellant] has a 15 centimetre long bladed knife in his hand. The second male victim [Riki Sammons] was in the kitchen. [The appellant] is yelling at [Mr Hayes] to come outside. …
[6] … [The appellant] and [Mr Hayes] had a struggle. The struggle was to the extent of where [Mr Hayes] was forced into a corner. He was being hit. [The appellant] was swinging a knife around, punching with his other hand. [Mr Hayes] had to pick up a chair to defend himself. The punches that [the appellant] at that time were delivering were with his free hand, they were with his fist. In the other hand he was carrying a knife. … [The appellant] then leaves. What [Mr Hayes and Mr Sammons] then decide … is that retreat and hiding is the best method of defence. They both hide in the toilet/bathroom area of the house.
The appellant and his brother then went back into the house looking for Mr Hayes and Mr Sammons. They went to the toilet/bathroom area and ascertained that the two male victims were in that room. They attempted to open the toilet door, the two victims holding it shut. As Judge Phillips explained, the appellant and his brother:
[8] … unite and began to batter on the door, putting holes in the door and eventually getting it open. [The appellant] is first in, he goes to [Mr Hayes], assaults him with a number of blows, he falls to the ground and tries to protect himself. David Hodgkinson comes in and he attacks the same victim. They are punching him accordingly. Kurt Lonneker [the third male in the appellant’s group] enters the same area, he punches [Mr Sammons] three times to the back of the head. He goes to the ground. …
The first victim, Mr Hayes, suffered bruising to his wrist and fingers. Mr Sammons received some bumps and bruising to the back of his head.
David Hodgkinson pleaded guilty to burglary, injuring with intent to injure Mr Hayes, and various breaches of the protection order. Mr Lonneker pleaded guilty to injuring with intent to injure Mr Sammons. Tony Beattie-Tainui and Amanda Twining pleaded guilty to a charge of unlawful assembly.
Sentencing remarks
The appellant was sentenced on a similar basis to that applied to his brother on the injuring with intent charge. The Judge took a starting point of two years imprisonment which was uplifted by nine months to take into account the burglary. On a totality basis, a further four months imprisonment was added for the offence of assault with a weapon and then a further one month uplift to take into account the wilful damage and possession of cannabis charges. That led to a starting point of three years two months imprisonment. From that point, the Judge uplifted the starting point by four months for the appellant’s previous convictions. That led to a starting point of three years and six months. From that point, a discount of 15 per cent was given for the guilty plea which had been entered after committal. This approach resulted in an end sentence of two years and 11 months imprisonment.
The appellant’s brother was sentenced to two years seven months imprisonment. Mr Lonneker was sentenced to a term of one year and nine months. Mr Beattie-Tainui and Ms Twining were each sentenced to two months imprisonment.
The appeal
For the appellant, Ms Saunderson-Warner submits that the starting point of two years imprisonment adopted for the charge of injuring with intent is too high when considered against comparable cases given the minor nature of the injuries. It is accepted there are aggravating features of the offending. However, the submission is that they are adequately reflected in the discrete uplift of nine months imprisonment for the burglary charge. No issue is taken with that uplift nor that imposed for the summary offending.
In addition, Ms Saunderson-Warner says that the appellant’s previous convictions did not warrant any uplift.
For the Crown, Mr Davie supports the approach taken by the Judge. Mr Davie accepts that the physical injuries are at the lower end of the scale but says that they are just one factor in the mix.
Discussion
We consider that the starting point of two years imprisonment adopted on the injuring with intent charge was within the available range. Similarly, Ms Saunderson-Warner was right not to challenge the uplifts for the other offending. While, perhaps fortuitously, only minor injuries resulted that is not the only factor the Judge had to evaluate in assessing the gravity of the offending. This Court in R v Harris said that in cases where there is “a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted)”, an offender can “fairly be sentenced primarily by reference to the seriousness of the injury suffered”.[3] However, the Court went on to say that:[4]
Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved.
[3] R v Harris [2008] NZCA 528 at [10].
[4] At [11].
This was serious offending involving, as Judge Phillips noted, a home invasion by a group of people, one of whom (the appellant) was armed with a knife. The Judge said that, for the appellant, the aim was to “deal to” Mr Hayes.[5] An aggravating factor is that, after the initial flurry, the victims hid and yet the appellant and his brother broke down an internal door and resumed the assault. As to the latter point, it appears there may be some confusion in the sentencing remarks over just which victim(s) were locked in the toilet area. However, we do not consider any error in this respect was significant. The incident, not surprisingly, was traumatic, particularly for Ms Chalmers.
[5] At [45].
Against this background, no issue can be taken with the initial starting point.
Nor, given the particular combination of aggravating features identified by the Judge, was the starting point out of line with that adopted in comparable cases. Ms Saunderson-Warner relied on a number of cases to support the argument the starting point was manifestly excessive. For example, reference was made to Ross v R and Schuster v R.[6]
[6]Ross v R [2010] NZCA 306 and Schuster v R [2011] NZCA 343.
This Court in Ross said that on the facts of that case, the starting point of two years imprisonment on a charge of injuring with intent to injure was too high to reflect the injuries alone. The injuries involved in that case were more serious than in the present case, however, that was a case of a single assailant and did not involve a weapon. In addition, the Court said there was no error in adding six months to the starting point to reflect the aggravating features of the offending.
In Schuster, the appellant was found guilty after trial of one charge of burglary and one of injuring with intent. The appellant was one of two men who forcibly entered a house by opening a locked door. The sleeping victim was dragged from his bed and punched repeatedly about the head. As a result, the victim required overnight hospital treatment. His injuries included a perforated eardrum. This Court said it had no concern about the starting point adopted of two years with an uplift of nine months for the burglary offending. In that case the co-offender struck most of the blows. However, the appellant was treated as equally responsible as he was close by and offered support and encouragement. Again, the larger group element was absent and there was no weapon.
For these reasons we consider the starting point adopted was within the available range. We do however agree with the appellant that the four months uplift for the appellant’s previous convictions was not appropriate.
It is important to recall the rationale for the addition to a sentence reflecting previous convictions. This Court said in Beckham v R that:[7]
The rationale for uplifting a prisoner’s sentence to take into account prior criminal history has been explained by this Court in R v Casey and in R v Ward. As Sir Michael Myers CJ explained in Casey, the Court must be careful to see that a sentence of a person who has been previously convicted is not increased merely by reason of those previous convictions. If this occurred, it would result in the prisoner being sentenced again for an offence which he had already expiated. This does not mean that previous convictions must be ignored, particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted. Issues of deterrence and, in some cases, protection of the public may require an uplift for previous offending. Similarly, previous convictions may bear on the issue of character.
[7] Beckham v R [2012] NZCA 290 at [84], citations omitted.
Here, the appellant’s only recent charge relating in even a minimal way to the current violent offending was a charge of speaking threateningly in 2011 for which he was ordered to come up for sentence if called upon. Apart from that, the only potentially relevant charges, of threatening to kill and of possession of an offensive weapon, are dated relating to 1996, 1994 and 1993. In these circumstances in particular there is a concern at an uplift which reflects some 16 per cent of the two year starting point. As this Court has said, it is important that there be some proportionality between the starting point and any uplift.[8]
[8] Tiplady-Koroheke v R [2012] NZCA 477 at [24].
We agree with Mr Davie for the Crown that some uplift is appropriate to reflect the fact that this offending occurred while Mr Hodgkinson was under a sentence of community work. But an uplift of one month would be sufficient for that. When the starting point of two years imprisonment is adopted along with the other uplifts relating to the other offending and with the addition of a one month uplift for the fact this offending occurred whilst the appellant was subject to a sentence of community work, that leaves an end sentence of two years and eight months imprisonment.
Result
For these reasons the appeal against sentence is allowed. The sentence of two years and 11 months imprisonment on the injuring with intent charge is quashed. A sentence of two years and eight months imprisonment, to be served concurrently with the other sentences imposed by the District Court, is substituted. Those other sentences stand.
Solicitors:
Aspinall Joel, Dunedin for Appellant
Crown Law Office, Wellington for Respondent
16
4
0