R v Hopkins

[2015] NZHC 562

NOTE: PUBLICATION OF NAME, ADDRESS, OR OCCUPATION OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-090-001399

[2015] NZHC 562

THE QUEEN

v

JAMES THOMAS HOPKINS

Counsel:

D Dufty for Crown

S Fernando for defendant

Sentencing:

25 March 2015

SENTENCING NOTES OF KATZ J

Solicitors:               Meredith Connell, Crown Solicitor, Auckland Counsel:        S Fernando, Barrister, Auckland

R v HOPKINS [2015] NZHC 562 [25 March 2015]

Introduction

[1]    Mr Hopkins, you have been convicted, following a trial by jury, of wounding your then 18 month old son with intent to cause him grievous bodily harm.  You  have also been convicted of injuring him with intent to injure him. The wounding charge carries a maximum penalty of 14 years’ imprisonment. The injuring charge carries a maximum penalty of five years’ imprisonment.

Facts

[2]    You and your wife, from whom you are now estranged, have three children. Your mother-in-law was the primary caregiver for your children, although the victim, who is your youngest child, appears to have also spent quite a bit of time with you and your wife.

[3]    The victim and your older son were dropped off at your home on the afternoon of Friday 7 March 2014, to stay overnight. The next morning, your wife left the house at about 9:30am with your older child, as she had agreed to help out at a craft stall at the local market. As your youngest son was still sleeping, and you were still in bed, she left him behind with you. For some reason this fairly  innocuous act on her part totally enraged you. You believed that she should have waited for you, so that you could all go to the market together. You sent your wife abusive text messages about having left you behind. She did not respond to these as she had no credit on her phone.

[4]    Your text messages then escalated in their aggressiveness and took on a more sinister tone. At 9:50am you sent a text message to your wife saying:

U just better hope [the victim] still alive when you get back. Temptation 2 break his Fuckn neck right now.

[5]    Eight minutes later, at 9.59am, you sent your wife another text message saying:

He will regret he was even born.

[6]    Within minutes of sending those texts you got your son out of bed and kicked him hard in the stomach while he was lying on the floor. Indeed you kicked him  with such force that you caused a grade 5 laceration to his liver. Similar injuries  have only been described in the medical literature in very traumatic high impact situations such as motor vehicle accidents or when a person has fallen from a multi-storey building. The victim’s spleen was also lacerated, which indicates that you may well have kicked him more than once. The victim almost immediately started to bleed out from his ruptured liver. You were not aware of this, however,  and went outside for a cigarette.

[7]    When you came back inside your son, not surprisingly, was crying as a result of your attack upon him. This further enraged you, and you again assaulted him, this time punching him in the head several times. This caused multiple bruises and abrasions to his face. Indeed the force of your punches was such that you broke a bone in your own hand.

[8]You then sent a further text message to your wife, at 10.29am, saying:

I’m sorry; [the victim] half awake but he’s really restless. And 4  some reason got a blood nose n did u notice the bruise on his face? I’m going to give it 15 minutes if nothing changes I’m going to ring the ambulance.

[9]    Three minutes later, at 10:32am, you called the ambulance. You reported that your son was pale and semi-conscious, with abnormal breathing. You also said that he had a blood nose and abrasions to his face, which you suggested was probably a result of his hitting his head against the wall in his sleep. You repeated this story to the ambulance officers when they arrived. You did not tell them what had really happened, despite the fact that your son was gravely ill. You chose to lie to protect yourself rather than tell the truth to help your son.

[10]   Fortunately, the ambulance officers quickly realised the gravity of the situation. The ambulance was diverted en route to Waitakere Hospital to take your son straight to Starship Hospital. The ambulance officers radioed ahead to ensure that an emergency medical team was on standby at Starship to meet them. The actions of the ambulance officers on that day, combined with the outstanding care

your son received from the emergency team at Starship Hospital, almost certainly saved his life. By the time he arrived at Starship he required an immediate blood transfusion due to the huge blood loss he had suffered from his internal injuries.

[11]   The ambulance officer was justifiably suspicious of the explanation you gave for your son’s injuries. He alerted the medical team at Starship to his concerns, triggering an investigation. Initially you denied any involvement in your son’s injuries. About a week or so later, during your third police interview, you admitted having kicked and punched your son. Even then, however, you provided little detail and minimised your involvement. Although you deserve some credit for finally admitting your actions, I note that it was only after the police had obtained a search warrant and recovered the incriminating text messages that you had sent to your wife.

[12]   Although you admitted kicking and punching your son, you denied that you had intended to injure him or cause him serious harm. Your intent at the time you assaulted him was therefore the key issue at trial. Your lawyer submitted to the jury that you had acted impulsively and on the spur of the moment and had not intended any serious harm. The jury rejected that submission, finding that you did intend to injure your son when you punched him in the head, and that you also intended to cause him serious harm when you kicked him in the stomach.

[13]   Two victim impact statements have been provided to me, one of which has been read out in Court. Your estranged wife states that she worries that your son’s damaged liver will affect him in the future, and hopes that it will not stop him having a full and fun life. She states that your son’s personality has changed as  a result of the assault and that he is now more aggressive. She feels betrayed by your actions which have not only harmed your son, but destroyed your marriage and family. Your wife is now financially dependent on her parents having lost you as the family breadwinner.

[14]   Your mother-in-law has also provided a victim impact statement. She expresses her deep love for the victim and her strong desire to protect him and  ensure he has a normal happy life in her care. Your mother-in-law says that the

victim is more aggressive since the assaults and she worries about his health. Other than that, he is your average two-year-old. She expresses her sadness that your offending has caused a rift between her and your mother, who also has some ongoing involvement with the children, as their grandmother.

[15]   Your mother-in-law cares for all three of your children, as well as her terminally ill husband. She is clearly carrying huge family responsibilities and  would no doubt benefit from as much help as possible with child care. She says, however, that she now finds it really hard to trust other people with the children, because of your actions. She simply cannot understand why you did not call her to come and pick up your son if you were not coping that morning. She says she has always been there for the children, and will continue to be so.

Approach to sentencing

[16]   Mr Hopkins, in sentencing you I must aim to ensure that any sentence I give you engenders in you a sense of responsibility for, and acknowledgement of, the harm that has been caused by your offending. I also take into account the need to denounce and deter similar offending. Children are among the most vulnerable members of our society. In sentencing you I have particular regard to the need to denounce assaults on young children by those entrusted with their care. Children who are attacked by their parents are particularly vulnerable. Parents who abuse  their children take advantage of their special relationship of trust with that child. At only eighteen months old, your son was entirely defenceless. Any sentence I impose must strongly denounce your assaults and also, hopefully, deter others from similar offending.

[17]   The Crown submits that the two charges are essentially a continuation of the same conduct and that they therefore should be considered together when setting a starting point. That is one possible approach. In my view, however, the two assaults are distinct. They were not part of one continuous incident, given that you went outside for a cigarette after the first assault and had time to collect yourself prior to returning inside and further assaulting the victim. I have therefore decided to

consider the charges separately for sentencing purposes, but adjust the overall sentence as necessary to reflect the totality of your offending.

Setting a starting point

[18]   First I must set a starting point. The lead charge is the charge of wounding with intent to cause grievous bodily harm, which carries a maximum penalty up  to 14 years imprisonment. As I have already outlined, this charge relates to your kicking the victim, lacerating his liver and spleen.

[19]   In R v Taueki the Court of Appeal has provided guidance as to how such offending should be sentenced.¹ In particular, the Court of Appeal identified three bands of escalating seriousness. Where any particular case falls within the Taueki bands will generally depend on how many aggravating features are present and the level of seriousness of those aggravating features in a particular case.

[20]In my view there are four relevant Taueki aggravating factors in this case:

(a)Extreme violence: In Taueki, this is described as encompassing not only prolonged violence, but also “unprovoked or gratuitous” violence.² The violence inflicted on the victim here was completely unprovoked and gratuitous. It also involved the use of serious force,  as evidenced by the injuries suffered.

(b)Premeditation: Your text messages indicate that there was at least some element of premeditation involved. Unlike many child abuse cases, this is not a situation where a parent at the end of their tether momentarily loses control and lashes out at a crying child. Rather,  you were angry at your wife and sent her two text messages threatening, in effect, to harm your son. You then proceeded to do just that.

1      R v Taueki [2005] 3 NZLR 372 (CA) at [31].

2      Taueki, above n 3, at [31].

(c)Vulnerability of the victim: The victim was an eighteen month old child. He was totally dependent on you at the time.

(d)Serious injury: You caused life-threatening internal bleeding to the victim, by rupturing his spleen and liver.

[21]   The Crown submits that your offending falls within Band 2 of the guidelines set out in R v Taueki, which provides for a starting point in the five to ten year range. The Crown nominates a starting point within that range of 7 to 8 years  imprisonment, although I note that the Crown takes both assaults into account in setting that starting point.

[22]   Your lawyer submits that a starting point at the higher end of Band 1 in R v Taueki would be appropriate. Band 1 provides a range of 3 to 6 years imprisonment. Your lawyer invites a starting point of 4 years. He submits that the second assault forms part of the same overall incident, and thus no uplifting of the sentence is warranted.

[23]   In your case there is no evidence of any long-term, ongoing brutality toward  a child, as exists in some of the worst cases of child abuse in New Zealand. Equally, however, your offending is not a case of a parent who snaps at repeated crying or other distressing behaviour from a child leading to instantaneous, impulsive  reactions and instantly regretted results. These are the two types of child abuse considered by the Court of Appeal in R v Wilson, in which the court set out general principles regarding child abuse sentencing.³ Your offending lies somewhere between those two extremes.

[24]   The seriousness of each of the four factors I have identified must be assessed to assess your  overall  culpability.⁴  I therefore take  into  account  that  your kick  (or kicks) to the victim’s stomach involved a high degree of force, sufficient to lacerate his liver and spleen. The attack was not, however, prolonged. As I have noted, there was some degree of premeditation in the minutes preceding the attack,

3      R v Wilson [2004] 3 NZLR 606 (CA).

4      Taueki, above n 3, at [42].

but this is not a situation where the attack had been planned for hours or days. Your victim was, however, extremely vulnerable. As recognised in Taueki, children who are attacked by their parents are particularly vulnerable. Parents who abuse their children take advantage  of  their  special  relationship  of  trust  with  that  child.  The defencelessness of the victim and the magnitude of your breach of trust (including your deliberate concealment of your offending from the ambulance officers) are seriously aggravating features.

[25]   The fourth aggravating feature is that you caused life-threatening internal bleeding to the victim, by rupturing his spleen and liver when you kicked him. As I have already noted, if it were not for the skill and rapid response of the ambulance officers and medical team who cared for him it is quite possible that he would have died. In that event you would have faced significantly more serious charges. Fortunately, however, the victim has made a full recovery. I therefore take into account that although his immediate injuries were extremely serious, he is not suffering from any permanent or long lasting injuries.

[26]   Taking all of these matters into account I have concluded that a starting point in the middle of band two of Taueki is appropriate for the grievous bodily harm charge. I accordingly adopt a starting point of seven years six months imprisonment for that charge.

[27]   I now turn to consider the appropriate starting point for the injuring with intent to injure charge, which relates to the incident where you punched the victim around the head. The maximum penalty for that charge is five years imprisonment. In R v Nuku the Court of Appeal set out sentencing guidelines for injuring with intent to injure charges.⁵

5      R v Nuku [2012] NZCA 584 at [38].

[28]   In my view the punching incident falls within band two of Nuku. The most seriously aggravating feature of the offence is that you attacked the head of an already severely injured child, although I accept that you did not realise until afterwards that he was already seriously injured. You punched him with sufficient force to break a bone in your hand. The attack was not prolonged, however. Further the attack did not result in serious injuries in the way that your kick to the victim’s stomach did. There have been no lasting or ongoing effects, and CT scans have revealed that no brain injuries resulted from your attack.

[29]   Having considered a number of cases involving broadly similar offending, I have concluded that, on a standalone basis, the injuring with intent to injure charge would warrant a starting point of two years six months imprisonment, which is within the second band of Nuku.

[30]   Accordingly, if the two offences were considered on a standalone basis, the global starting point would be ten years imprisonment. It is therefore necessary for me to stand back and consider whether such a starting point would adequately reflect the overall totality of your offending. Viewed in that way I am satisfied that some adjustment is required, and that a global starting point of eight years would appropriately reflect the overall level of culpability involved in the offending.

Adjusting the starting point

[31]I now turn to consider what adjustments should be made to the starting point.

[32]   You are 28 years old. Although you had a somewhat troubled start to life,  you were adopted by your aunt and uncle when you were about four and appear to have had a stable and loving upbringing since then.

[33]   Your pre-sentence report indicates that you have expressed regret and shame for your actions and the harm caused to your son and his extended family. You are noted as engaging in many intervention programmes and making progress learning  to manage conflict. To your credit, the report writer saw you as being highly motivated to change.

[34]   You are assessed as being at low risk of reoffending, given your very limited criminal history, your compliance with bail conditions and your engagement with rehabilitation programmes. Somewhat inconsistently, you are considered to have a moderate risk of harming others, given the age of the victim, your relationship to him, and nature of the injuries caused. That risk assessment may have been  based  on the erroneous assumption that you may continue to live with the victim or your other children, which is clearly not the case.

[35]   You have two fairly minor convictions. Neither of them is relevant  for present purposes and I disregard them. You have no previous convictions for violent offending.

[36]   Your counsel submits that you are genuinely remorseful. He notes that you admitted that you committed the acts in question, and proceeded to trial solely on the issue of what your intent was at the relevant time. You were, of course, entitled to  put the issue of your intent to the jury. The jury ultimately found, however, that you did indeed intend to seriously harm your son when you assaulted him. I accept, however, that your somewhat belated admission to the police that you had kicked and punched the victim is relevant, and can be taken into account as a tangible demonstration of remorse.

[37]   Your counsel also submits that you acted responsibly in calling the ambulance and that you were a loving father prior to this incident, with no record of violence against your children. He says that your offending was in part a consequence of the significant pressures you were under at the time, including relationship and financial pressures. He submits that, taking all of these factors into account, a 15 per cent discount is warranted. The Crown has conceded that some “good behaviour” discount may be warranted in light of your previous good behaviour and expressed remorse but submits that it should be at the lower end of the range.

[38]   I have concluded that, taking all of the factors I have outlined into account, a 10 per cent discount is appropriate to reflect your previous good behaviour and remorse.

Result

[39]Mr Hopkins, please stand.

[40]   On the charge of wounding with intent to cause grievous bodily harm you are sentenced to seven years and two months imprisonment. On the charge of injuring with intent to injure you are sentenced to two years and three months imprisonment. The sentences are to be served concurrently.

[41]You may stand down.

Katz J