TIMOTHY LOUIS CARL HOPKINS v THE QUEEN [1999] NZCA 80 (12 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca35/99

TIMOTHY LOUIS CARL HOPKINS

V

THE QUEEN

Hearing:	12 May 1999
Coram:	Tipping J Doogue J Robertson J
Appearances:	A.G. James for appellant S.P. France for respondent
Judgment:	12 May 1999

judgment of the court DELIVERED BY DOOGUE J

[1] This is an appeal against a sentence of five years' imprisonment imposed in the District Court for the offence of wounding with intent to cause grievous bodily harm.The appellant was one of three co-offenders who pleaded guilty to crimes arising out of a sustained and vicious attack upon the complainant.One of the three, Charles, whose involvement was less, was sentenced to two and a half years' imprisonment for the offence of assault with intent to injure. That reflected a six months' allowance for the plea of guilty off the maximum available sentence of three years' imprisonment.The other co-offender, Wood, was sentenced to six years' imprisonment for wounding with intent to cause grievous bodily harm.The sentencing Judge regarded Wood's culpability as slighter greater than that of the appellant and also took into account that the appellant was a year younger than Wood at the time of the offence.He reached the sentences imposed by taking a starting point of 10 years' imprisonment, making a reduction of two years for age and other reasons in the case of Wood and three years in the case of the appellant and then making a further reduction of two years in each case for the guilty plea.

[2] Wood appealed against his sentence and the appeal was dealt with by this Court on 30 March 1999 (CA 28/99).In a comprehensive judgment of the Court the Chief Justice traversed all the circumstances of the case.As a result, we do not intend to undertake the same exercise here.The Court in Wood's appeal found that, however his sentence was constructed, the sentence imposed of six years' imprisonment could not be criticised.The Court was faced with a disparity argument between Wood and Hopkins.The Court accepted there was a proper basis for distinction between the two and that in terms of R v Rameka [1973] 2 NZLR 592 the difference was neither unjustifiable nor gross.As a result, Wood's appeal failed.

[3] Hopkins in the present appeal submits that the sentence of five years' imprisonment is excessive, particularly having regard to his age of 16 at the time of the offence.In support of that submission counsel for the appellant has traversed a number of matters taken into account by the sentencing Judge and also considered in Wood.One factor not directly addressed either by the sentencing Judge or traversed in Wood and submitted on behalf of the appellant is that he sought assistance for the complainant during the course of the prolonged assault when he feared the complainant was dead.That intervention may have resulted in the complainant's life being saved.However, whatever credit the appellant might have been entitled to in respect of that intervention was negatived or substantially diminished by the fact that when the appellant and Wood returned to the complainant they renewed their assault upon him.

[4] None of the matters advanced on behalf of the appellant, either individually or collectively, would enable this Court to say that the five year sentence of imprisonment imposed upon him was manifestly excessive however the sentence was approached.

[5] There is nevertheless one further aspect of the matter which the Crown accepts must result in a reduction in the sentence imposed.Because Charles and Wood were slightly older than Hopkins, they received credit for time spent on remand under s. 81 Criminal Justice Act 1985.However, because of his age, Hopkins was remanded in Social Welfare custody, and not in a penal institution, from 16 July 1998 to 11 December 1998, a period just a little short of five months.As was noted by this Court in Afu (CA 360/96, 22 October 1996) and earlier cases, a person remanded in a Department of Social Welfare residential centre does not receive a credit under s. 81 Criminal Justice Act 1985 but should receive such a credit.In Afu the Court recommended that the appropriate authorities examine the position and consider the desirability of making a suitable amendment to the statute.To date no such amendment has occurred.We can only renew the plea of the Court in Afu.We direct that a copy of this decision be forwarded to the Secretary for Justice.

[6] The only issue is the term of the reduction which should be made to the sentence, as it is common ground that the sentencing Judge did not have his attention drawn to this factor and made no reduction in respect of it.If justice is to be done between Hopkins and Wood, the reduction of Hopkins' sentence must be of the order of seven to eight months' imprisonment.We accordingly allow the appeal and in place of the term of imprisonment of five years substitute a term of four years and four months' imprisonment.

Solicitors

Brockett James, Christchurch, for appellant

Crown Law Office, Wellington, for respondent