R v Hodgson HC Auckland CRI 2009-044-10450

[2010] NZHC 1750

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-044-10450

THE QUEEN

v

JONATHAN JAMES HODGSON

Charge:          Attempted Murder

Plea:               Guilty

Appearances: Claire Ryan for Crown

Howard Lawry for Prisoner

Sentenced:     28 September 2010

2 years Intensive Supervision, with special conditions;

200 hours Community Work

SENTENCING NOTES OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Crown

Duff Lawry Richmond (Auckland) for Prisoner

R V HODGSON HC AK CRI-2009-044-10450 28 September 2010

[1]      Mr Hodgson, you pleaded guilty on the first day of your trial to one count of attempted murder, with the victim being your mother.  The maximum penalty for the crime of attempted murder is 14 years' imprisonment.  That maximum term reflects the two ingredients of the offence, they being that there has to be an intention to kill at the moment that an action is taken pursuant to the intention.

[2]      Before  I proceed to the formal parts of the sentence,  I acknowledge the people who are in Court as your supporters.   I think that you are extraordinarily fortunate, despite the history that you have had with mental health difficulties and the culmination in the attack upon your mother, that you still have such support.

Facts

[3]      Turning briefly to the facts.  On 21 December 2009 you were in a troubled mental condition.  You had attempted suicide in September.  You had, in November, become a father, and as at 21 December your son was five weeks old.

[4]      Your mother had come up from Queenstown to help with the baby.  You had a history of resentment towards your mother.  On the day in question you returned to the place where you were living to find your mother holding your son.   You took your son from her and put him down and then, as you said, you snapped.   You attacked your mother.  You strangled her to the point of unconsciousness, but you desisted when you saw that her face had become purple and swollen and that she looked really bad.

Principles and purposes of sentencing

[5]      The purpose of sentencing is achieving a balance.  It is not intended to make up for what you did in the sense that members of the public might try to see a form of retribution matched to an act of violence.  The purpose of sentencing is to look at all of the factors - the human ones and the needs of society as a whole.  It has to hold

you accountable for the harm that you did; it has to promote a sense of responsibility in you for what you did; it has to acknowledge the harm that you did; it has to provide for your mother's interests; and, on a wider basis, as society's interests are taken into account, to denounce what you did and to impose a sentence that might deter  you and others from similar acts of violence.   Protection of the public is important; protection of your family is important.  But so too is your rehabilitation and reintegration into wider society.  As you will well appreciate, those factors can come into conflict.  It is the reconciling of them that is my task today.

(a)      Factors relevant to the offence

[6]      Looking at the factors that are relevant to the offence, I accept that this was not premeditated and I accept that because you stopped when you saw the damage that you were doing that I can accord that factor real significance.  There are cases of attempted murder where the only thing that prevented the attempt from being carried out to actual murder was the intervention of some third party or some intervening act that prevented the intention from being given full effect.  That is not your case and you are entitled to real credit for that.

(b)      Factors relevant to prisoner

[7]      I give the greatest significance to your mental health issues.  I find that that is the dominant factor in this offending.  I have read the extensive psychiatric reports that have been provided to me very closely.

[8]      I also take into account your previous good character; that you have gone through, successfully, a restorative justice programme.   I accept that you are remorseful  and  I note  your  mother's  wishes,  as  contained  in  the  victim  impact statement.

[9]      You are entitled to some credit for your plea of guilty, although the law limits me to the extent that I can give credit to that because of the late entry of the plea.

[10]     On that basis the law now requires me to calculate a starting point for the sentence which I have to impose.

[11]     The Crown has submitted broadly that the starting point should reflect the top end of band one or the lower end of band two of a case called R v Taueki.[1]   That is a case that handed down a series of descriptions of violent offending and suggested bands of imprisonment that should be applied by Courts for those types of offending. It is a decision that binds me because it is a decision of a Court which is higher than this one.  Taueki is not directly relevant to attempted murder, but I accept that it can

give guidance as a broad place to start.

[1] R v Taueki [2005] 3 NZLR 372 (CA).

[12]     The Crown submits that a starting point in this case should be in the vicinity of three to four years and, looking at the cases that have been cited by the lawyers and cases known to me through my own research, I am satisfied that a starting point of four years' imprisonment would be appropriate in this case.

[13]     Having determined the starting point, I am now required to undertake what is really an arithmetical exercise or judgment translating into arithmetic on the factors that I can take into account on your behalf to reduce that starting point.  Because of your mental health issues I am prepared to discount your sentence by one year; for your good character, six months; for the factors of successful restorative justice, remorse and your mother's wishes, a further four months.  That brings the sentence of imprisonment down to two years and two months.  I am also prepared to give a two months' discount for your plea of guilty, which reduces the overall sentence to two years.

[14]     That is, to a certain extent, an artificial exercise because any of the factors that I have just mentioned could be weighted to greater or lesser effect depending upon judgment.   But, overall, I am satisfied that a sentence of two years' imprisonment is appropriate in these circumstances.

[15]     Now, that is not the end of the matter.  As your lawyer will have told you, because the final sentence on the exercise I have undertaken is two years, the law allows me to look at whether or not that should translate into a non-custodial sentence.

[16]   Both counsel have been talking about intensive supervision.   Intensive supervision is not a sentence that I am entitled to impose just because I think it would be a good idea.  The relevant provision is s 54C in the Sentencing Act 2002, which I will read to you so that you understand the exercise that I have to undertake as a matter of law.  Section 54C says that:

A court may impose a sentence of intensive supervision only if it is satisfied that—

(a)       a sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender; and

(b)       the nature of the offender's rehabilitative or other needs requires the imposition of conditions—

(i)       for a period longer than 12 months; or

(ii)      that are not available through the sentence of supervision.

That is what the law requires me to have regard to.

[17]     Now, in this case I have considered whether home detention would be an appropriate sentence, and I have decided that it is not.  The reason I have decided that it is not is because in my judgment the sentence of intensive supervision is what is required to meet the circumstances of your offending.  In reaching that conclusion I take into account that you have already spent seven months in custody on remand and in my judgment, in the circumstances of this case, that adequately meets the factors of deterrence and denunciation that I have to consider.

[18]     In my view the reports of Dr Sakdalan and Dr Pillai of 11 August 2010 make it clear that although you pose a low risk of re-offending so far as the wider community is concerned, there is a real need for you to undergo programmes that

will  allow  you  in  the  future  to  interact  particularly  with  your  family  members without there being a risk of a repetition of the offending for which you are now being sentenced; and that requires a significant period of time.  There is no quick fix in any of this.

[19]     I note in particular that you appear to be denying an overall intention to kill. But I have had regard to what Mr Lawry said on your behalf and so I treat that as being a factor that points to a need for intensive supervision over a long period of time to enable you to come to terms totally with your own motivations and what happened on this occasion.

[20]     Intensive supervision by itself, however, is a very rare sentence on a charge of attempted murder.  Indeed, intensive supervision coupled with community work is a very rare sentence on a charge of attempted murder.   But in this case I have concluded that the proper sentence to address your offending in this instance, and to provide for the rehabilitative and reintegrative factors set out in the Sentencing Act, is a sentence of intensive supervision for a period of two years and 200 hours of community work.

[21]     I am going to impose special conditions on the intensive supervision because I think that they are necessary to ensure that the purpose of the sentence is best achieved.  The conditions are as follows:

a)        For  the  first  12  months  you  are  to  reside  at  Victory Outreach  at

8/833 Kingseat Road, Kingseat, Papakura, and thereafter to reside at an address to be approved by your probation officer;

b)        You are to attend and engage fully in such programmes at Victory

Outreach as may be directed by the director of Victory Outreach;

c)       You are to abide by a 24 hour curfew for the first six months of your sentence unless you are in the company of Victory Outreach staff members or a person approved by Victory Outreach;

d)       You are to take all medication prescribed for you;

e)       You are to attend such psychiatric or other counselling or assessment as may be directed by your probation officer;

f)        You are to attend any psychological, social, therapeutic, rehabilitative or reintegrative programmes as may be directed by your probation officer;

g)       You are not to contact directly or indirectly your mother or your wife, Rebecca Day, although they may contact and visit you by agreement with Victory Outreach.

[22]     I  direct  that  the  performance  of  community  work  be  subject  to  the requirements of these special conditions and, to the extent possible, in co-ordination with them.

[23]     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.  Stand down.

Brewer J