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.

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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…

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 Hodgkinson v R

Details

AGLC: Hodgkinson v R [2012] NZCA 478
Case: [2012] NZCA 478
Decision Date: 17 October 2012

CaseChat Overview and Summary

The appeal in Hodgkinson v R was brought by Christopher Michael Hodgkinson, who was appealing against his sentence for injuring with intent, burglary, and assault with a weapon. The case was heard by the Court of Appeal of New Zealand, with Ellen France, Ronald Young, and Andrews JJ presiding. The appeal was decided on 17 October 2012, and the court allowed the appeal against the sentence. The primary issue before the court was whether the starting point adopted for the injuring with intent charge was too high, given the minor nature of the injuries to the victim. The court also considered whether the uplift for the appellant's previous convictions was appropriate. The court found that the starting point adopted for the injuring with intent charge was within the available range, considering the nature of the offence and the aggravating features present in the case. However, the court agreed with the appellant that the uplift for previous convictions was not appropriate, given the limited relevance of the previous convictions to the current offending. The court substituted a sentence of two years and eight months imprisonment, to be served concurrently with the other sentences imposed by the District Court. The other sentences remained unchanged.

Orders