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…

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.

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Details

Case: [2015] NZHC 562
Decision Date: 25 March 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Katz J presided over the sentencing of James Thomas Hopkins, who had been convicted of wounding his then 18-month-old son with intent to cause grievous bodily harm and injuring him with intent to injure him. The primary legal issues before the court were determining the appropriate starting point for sentencing each offence and adjusting the starting point based on mitigating and aggravating factors. Katz J first established the starting point for the grievous bodily harm charge, considering it within Band 2 of the guidelines in R v Taueki, leading to a starting point of seven years and six months imprisonment. The injuring with intent to injure charge was considered separately, with a starting point of two years and six months imprisonment. Katz J then adjusted the starting point to eight years, reflecting the totality of the offending. Katz J took into account Hopkins' previous good behaviour, remorse, and engagement with rehabilitation programmes, leading to a 10% discount on the starting point. Consequently, Hopkins was sentenced to seven years and two months imprisonment for the grievous bodily harm charge and two years and three months imprisonment for the injuring with intent to injure charge, to be served concurrently.

Orders