R v Hodgson HC Timaru CRI-2008-476-001397

[2010] NZHC 2449

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2008-476-001397

REGINA

v

LOGAN WIKI HODGSON

Hearing:         29 March 2010

Counsel:         A R McRae for Crown

C D Savage for Prisoner

Sentence:       29 March 2010

SENTENCE OF PANCKHURST J

Mr Hodgson:

[1]      You are for sentence upon charges of attempted murder and burglary.   On

25 June 2008 you and your victim, Ryan Scarlett, were trainee medics in the New Zealand Army.  At this time you were on an exercise at the Tekapo military camp. Ryan was aged 19 and your bunkmate.  You occupied the top bunk in the room that you shared.  As he commented in the victim impact statement which he read today, you had an apparently normal relationship with one another.   There were no problems.

[2]      It seems you went to bed that night at an early hour, about 9.30 or so, but did not sleep.  At some stage you got up, put on your boots and an overcoat and went to

the toilet block.   You then remained outside listening to music for a period and

R V LOGAN WIKI HODGSON HC TIM CRI-2008-476-001397 29 March 2010

watching the sky.  It was at about 1.00 am that you went back into the bunkroom. You removed your coat.   You got out a Swiss army knife and opened the blade. Ryan Scarlett was asleep on his bunk.   According to your own account you then proceeded to watch him sleeping for a period, and then you determined to carry on with the plan that had been forming in your mind which was to stab and kill him. Indeed your intention was to stab the first blow into his throat, to his larynx, so that his vocal chords were affected and he would be rendered speechless - unable to seek help.

[3]      Fortuitously he stirred and moved at about the point that you were about to strike the first blow.  In the result you struck him to the side of his head.  A second blow as likewise to one side of his head.  He was instinctively aroused and went into a defensive position.  It was as well that he did because he then received eight further blows which struck him either on the arms or to his hands.

[4]      Fortunately, also, he was able to call out.   People from the neighbouring bunkroom heard and you must have become aware that others were about to intervene.  You fled from the bunkroom, clad only in your pants, a t-shirt and boots.

[5]      You then proceeded to walk down the state highway towards Twizel.  It must have been a cold night.  After about 40 minutes you came upon a house where the occupants were absent.  You broke in.  You stole warm civilian clothing, a bag, a sleeping bag and also spare clothing and then you continued the journey you had started on foot.

[6]      The small hours of the morning you apparently spent resting, as best you could, in a stand of trees until about 7.30  am  when  you  began walking again. Approximately 90 minutes later you were observed by police officers who, needless to say, by this point were searching for you.  You lied to them initially, denying your identity but then acknowledging both who you were and the fact of the burglary. You were arrested.  An interview was attempted.  You would not discuss the assault itself, but you outlined your subsequent movements.  You were placed in the cells but there were concerns for your own safety.  As a result of that nurses from a crisis team were brought in to assess you.   To them, over a period of time, you made

comments to the effect that it had been your intention to take your victim’s life, to kill him.  You said if you could kill someone in these circumstances you could kill anyone.  Indeed you expressed frustration at the fact that you had hesitated and that you had not succeeded in your objective.

[7]      As a result of those disclosures to the nursing staff you were spoken to again by a detective.  He asked why had you sought to kill Ryan Scarlett.  Your one word response was “curiosity”.  The Swiss army knife, I note, was taken from the kit of another soldier some little while before these events.  You had roomed with him as well.  You owned a similar knife of your own, but that was located in your sleeping bag.  Why you did not use your own knife is not immediately apparent.

[8]      Your victim sustained a total of 10 stab wounds, the first two to the head, the others as I said to his arms and hands.  These were typical defence injuries.  He was treated initially at Tekapo camp and then taken to Timaru Hospital.   The wounds were sutured and he was otherwise treated and then discharged on the afternoon of that day.

[9]      It  is  the  case  that,  physically,  Ryan  Scarlett  has  mended.    But,  as  was apparent from hearing him read his victim impact statement this afternoon he is still scarred in a psychological sense.  Like you, he has lost his career in the army.  He no longer has the desire to continue.   He also suffered some physical effects over a period of time, a loss of feeling in his finger and the like.  But it is the psychological effects which are long lasting and which I need not detail again in this public setting.

[10]     I note, however, he said this on the final page of that victim impact statement:

I feel lucky in some strange way.   Lucky for the fact that I’m here today alive and well but I know that but for a moment’s hesitation the result could have been completely different.  I feel lucky that I get to live out the rest of my life when I know that result was never Hodgson’s intention for me.

[11]     It is no exaggeration to say that he is haunted by that realisation; that this was your aim at the time of this attack.  That passage and others explain the depth of the effects upon him.

[12]     It is now almost 22 months since these events.   You have been in custody throughout  that  time.    I shall  refer  briefly to  the  reasons  for  this  delay.    At  a relatively early stage you indicated a challenge, through your counsel, to the admissibility of the evidence to be given by the nursing staff.   That matter was considered by another Judge in this court who gave a decision in August 2009 that the evidence was admissible at your trial.  In the meantime, in December 2008, you had written a letter, through Mr Savage, indicating that you would plead guilty to the lesser offence of wounding with intent to cause grievous bodily harm.  When your endeavour to exclude the nurses’ evidence was unsuccessful in this court there was an appeal to the Court of Appeal.  That was not resolved until mid-November 2009.

[13]     Finally, on 4 December 2009, you entered a plea of guilty to the attempted murder charge.  Originally you were to be sentenced in mid-December.  But, in the event, that did not happen.  Fogarty J was so concerned at the circumstances of this offence  that  he  called  for  further  reports  in  an  endeavour  to  get  a  better understanding of  your mental functioning.   I now have those reports, one from Dr Earthrowl,  a  psychiatrist,  dated  10  March  and  another  from  Mr  Prince,  a psychologist, dated 16 March.  I am most grateful to have them and I direct that they be carried to the Corrections file which will be kept as a result of your imprisonment. They provide a history which is relevant to the sentence which I must impose.  I will return to that history in a moment.

[14]     Mr Hodgson, I note you were born in October 1990.  It follows that you were only 17 years of age at the time of your offending in June 2008, about four months short of your 18th birthday.  I also have the benefit of a pre-sentence report that was prepared in December of last year.  You have the advantage that you come from a very good family background.  Your parents remain supportive of you.  The report contains the comment that they found  your involvement in this incident simply incomprehensible.

[15]     You have no previous convictions.   You are described as having been a highly committed soldier.  The pre-sentence report writer, however, considered that the risk that you pose to the community was “unpredictable”, probably moderate to

high, although that is an assessment perhaps best left to the medical experts to whom

I have referred.

[16]     Their reports I consider are consistent in content and also complementary. They add considerably to the picture that I have of you.   Central to them is an account which you have given of sexual abuse, to which you say you were subjected when aged about 10 years.  You have said that on four occasions an older male who was staying at  your home abused  you.   This  was not  reported  at the time nor subsequently, until the first psychiatric examination in late 2008.

[17]     Your  schooling  was  mainly  unremarkable.    There  were,  however,  two incidents of violence which I think should be mentioned.  One involved another male pupil.   Seemingly there was a background to this so that it may not have been something entirely of your making.  Nor may have been gratuitous violence.  The other incident was a verbal threat to kill addressed to a teacher.   You have downplayed this at interview, saying that it has been over-egged and that it was not anywhere near as serious as it was treated at the time.   But it led to your second suspension from school and I doubt, in light of your subsequent history, that it can be dismissed in the manner to which you subscribe.

[18]     All of the reports also confirm certain preoccupations which have marked your adolescent and teenage years.  You have been preoccupied about your physique and physical fitness.   This also resulted in a preoccupation with the martial arts. Thirdly, there is a good deal of material about your interest or preoccupation with music and movies of a violent nature.  All of these matters are well-documented in the material. So, too, is a determined commitment which you have had from a young age to enter and serve in the New Zealand Army.

[19]     By way of summary it seems to me that the experts have identified a list of important considerations which I should mention.  The first is that you had no mental health  history;  nor  sign  of  mental  abnormality  prior  to  these  events.    You  are assessed as being of at least normal, if not above, intelligence.   You are not, and never have been apparently, involved in drugs or alcohol being almost abstinent in that regard.   However, you are considered by both the psychiatrist who examined

you and also the psychologist, to be exhibiting symptoms of post traumatic stress disorder which they can only attribute to the allegations of sexual abuse you suffered as a 10 year old.   Dr Earthrowl also described you as having “engaged in violent fantasy thinking about harming or killing others”.  He thought this was a mechanism by way of response to the abuse, and that it has served as a means to regulate your mood and anger and gain a sense of control.

[20]     In addition, both of the experts consider that there were factors at play in June

2008 at Twizel which suggest why it was, what triggered you to act in the way you did.   You had suffered a knee injury.   This for you was a source of particular frustration.  It prevented you from exercising, something that was a preoccupation. It prevented you from completing an aspect of the training course.  Instead you were engaged in performing what you regarded as purely menial duties.  It is thought you were thereby rendered vulnerable to the influences I have already mentioned.  And, in the result, there was this act of random, wanton, indescribable and extreme violence.

[21]     Dr Earthrowl, in the opinion part of his report at paragraph 6, sets out a number of recommendations for your treatment while in prison.  He thinks, as well, that you would benefit from further educational study during that time.  I commend those recommendations to those who are to be responsible for your care in the time to come.

[22]     What then is the appropriate sentence for this awful crime?   The approach taken by the Crown through Mr McRae was to view the attempted murder in terms of R v Taueki [2005] 3 NZLR 372 (CA). That case is concerned principally with offences of serious violence, typically actions performed with intent to cause grievous bodily harm. But it is also relevant, by analogy, to this crime of attempted murder. By reference to this case Mr McRae argued that your conduct was in the most serious category, what is called band 3, warranted a starting-point in the sentencing exercise of between nine to 14 years, being the maximum for both grievous bodily harm offences and for attempted murder. He pointed to a number of features of this crime. That it is a crime, undoubtedly, of extreme violence; that there was an element of premeditation; that you used the knife as a weapon; that the

attack was deliberately focused on your victim’s head and, of real significance, that

Ryan Scarlett was vulnerable on account of sleep.

[23]     Mr Savage, realistically in my view, felt unable to differ from this assessment or at least the assessment that this is a band 3 offence.  He has, however, contended that some of the features to which I have just referred are not as significant as the Crown might contend.  In the end it matters not, because there can be no escape from the fact that this is an offence in the most serious category identified in Taueki.

[24]     In essence Mr Savage’s approach was not confined to looking at that case, but extended to other cases of attempted murder in an endeavour to set this one in the hierarchy.  He has referred me to the case of R v Churcher CA356/96, 5 March 1997 and to sentencings in this Court in R v Earl HC, 1999, R v Masoe HC Wellington CRI-2006-091-352, 15 September 2006 and R v O’Kane HC Dunedin CRI-2009-

002-190, 2 April 2009.  I have considered all of them.  They are in a sense helpful to the decision I have to make.  But, as has already been said, sentencing in the end must revolve around the unique circumstances of the particular case and certainly this case is no exception.  Its circumstances are, in my view, indeed unique.

[25]     Mr  Savage  accepted  that  a  significant  starting-point  was  required.    He suggested nine years, somewhat less than Mr McRae contended for, but he then argued that there is a need to recognise your immaturity, your age of 17 at the time; that you were, he suggests, labouring under a disability to some degree and also that you have good prospects for rehabilitation.   The other matter about which both counsel agree is that you are entitled to recognition for the plea of guilty which you entered late last year.

[26]     I need to consider these various contentions and I turn to that now.  Is this a case of diminished responsibility?   I am most doubtful as to this.   Your personal background may indicate why you acted in the way you did, but it does not, in my view, diminish your culpability, at least not to any meaningful extent.  It is, however, relevant in another way to which I will come in a moment.

[27]     On the other hand I accept your counsel’s arguments that your age, your absence of previous convictions and the prospects for rehabilitation, which are now real in light of the most recent reports, all warrant recognition.  I shall quantify that recognition shortly.

[28]     Thirdly,  I  accept  as  well,  as  I  must,  in  terms  of  the  cases  that  govern sentencing in this country, that you are entitled to a reduction for your plea of guilty. There is common ground about that, that the reduction should be of the order of

20%.

[29]     What  is  the  appropriate  starting-point?    In  my  view,  Mr  Hodgson,  that starting-point should be 11 years’ imprisonment.  I reduce that figure by 18 months in recognition of your age at the time of the offending; the fact that you were a first offender and to recognise the rehabilitation prospects which are painted in the expert reports.  I then reduce the nine and a half year notional sentence by about 20% which produces an end sentence of seven and a half years’ imprisonment.  That is the term you will serve in relation to the offence of attempted murder.  The burglary attracts a sentence of 12 months imprisonment which will be served on a concurrent basis.

[30]     The Crown additionally seeks a minimum period of imprisonment.   The criteria for ordering you to serve a minimum term are whether that is necessary in order to hold you accountable to denounce your conduct, to deter you and others, and to provide protection to the community.  Ordinarily in my view this is a crime where a minimum term must be imposed.  Indeed the Court of Appeal has said as much on occasion.  Nonetheless, I do not propose to impose a minimum term in your case.  I am influenced by your age, what seems to be the background to your offending and also on account of the positive signs for your rehabilitation which are described in the reports.  In short, I think it is in the public interest that the Parole Board be left with the greatest possible degree of flexibility in considering your case.  What this means, Mr Hodgson, is that your destiny is to some extent in your own hands.  If you make progress in prison, then you will be considered for release by the Parole Board before the expiry of your sentence.   If you do not, you will spend the time there. You may rest assured that the matter which will most exercise the Board will be

whether you continue to represent a risk to the community.    So long as you are assessed to represent a risk to others it is unlikely you will be paroled.

[31]     For the reasons I have given I do not order a minimum non-parole period.  I

leave matters with the Parole Board.

You may stand down.