Hodges v R [2011] NZCA 580 (18 November 2011)

Last Updated: 24 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA610/2011 [2011] NZCA 580

BETWEEN LAWRENCE IAN HODGES Appellant

AND THE QUEEN Respondent

Hearing: 7 November 2011

Court: Ellen France, Miller and Asher JJ

Counsel: R L Thomson for Appellant B F Fenton for Respondent

Judgment: 18 November 2011 at 10 am

JUDGMENT OF THE COURT

The application for leave to adduce new evidence is granted but the appeal is dismissed.

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

[1] The appellant was convicted after a jury trial of unlawfully getting into a motor vehicle, possession of a precursor substance, possession of equipment capable of being used in the manufacture of controlled drugs and possession of materials capable of being used to manufacture controlled drugs. He was sentenced to a term of imprisonment of 20 months by the trial judge, Judge Moses.[1]
[2] The appellant appeals against sentence. The issue raised by his sentence appeal is whether the fact he has subsequently been diagnosed with cancer means a sentence of home detention should now be substituted.

Factual background

[3] On 7 February 2010, police stopped a stolen car in which the appellant and another man were passengers. The driver of the vehicle drove off and, after a chase, stopped the car and fled. The second passenger also quickly left the scene. The appellant told the police he was hitchhiking and that he did not know the driver. He maintained that explanation at trial and in his pre-sentence report interview.
[4] When police searched the car they found glass chemical equipment such as conical and reaction flasks, measuring jugs, a parr bomb and glass pipes together with bottles of chemicals and a notebook containing handwritten notes relating to the manufacture of illegal drugs and a list of chemicals. The appellant’s fingerprints were located on items in the boot of the vehicle. In light of that and the circumstances in which the appellant said he had been picked up, Judge Moses, who had presided over the trial, described the appellant’s explanation as “rather implausible”.[2]
[5] The Judge said the evidence at trial showed that the chemicals taken from the car could have been used to manufacture drugs such as MDMA (ecstasy) or MDA, “either Class A or Class B depending on what drug” was made.[3] It did not appear that the items had been used for manufacture.[4]

The sentencing remarks

[6] Judge Moses took a starting point of 21 months imprisonment. From that point, he made an uplift of three months to reflect the appellant’s previous drug-related convictions. The most recent of these was in February 2003 when the appellant was sentenced to four years imprisonment on possession and supply charges.
[7] In terms of mitigating factors, the Judge took into account a short period of bail on restrictive conditions and the impact of imprisonment on the appellant’s wife. To recognise these matters, Judge Moses reduced the level of imprisonment to 20 months.
[8] Judge Moses then considered whether or not to impose a sentence of home detention. The Judge took into account the matters in the pre-sentence report. In favour of home detention was the fact the appellant had full-time employment with his father. On the other side of the ledger, the Judge was concerned at the appellant’s failure to learn from his previous sentence of imprisonment despite undergoing drug and alcohol counselling. The Judge’s assessment of the situation was that the appellant had “lurched back into [his] old ways and old associates”.[5]
[9] Although it was not critical to his decision, the Judge noted there was an issue about the address proposed for home detention. That address was the home he shared with his wife. There was a domestic protection order relating to his wife in force and his wife also has drug convictions. The appellant’s wife was, however, willing to move from the address in order to facilitate a sentence of home detention.
[10] Judge Moses’ conclusion was that home detention would not meet the sentencing purposes namely, personal deterrence and denunciation “particularly in view of [the appellant’s] previous convictions” and his “lack of insight or willingness” to address some of these issues.[6]

The appeal

[11] On appeal, the appellant seeks leave to introduce some medical reports and an affidavit from his father, Iain Hodges.[7] The medical reports show that the appellant was diagnosed with a malignant melanoma which has been excised. Iain Hodges explains that since the appellant was sentenced the appellant’s wife has had to give up their accommodation and has moved elsewhere. He confirms that he could provide his address for a sentence of home detention and provide employment to his son on a full-time basis.
[12] Relying on this material, the primary submission is that the appellant’s medical condition has the effect of meeting any concerns about personal deterrence. Ms Thomson emphasised in this respect that the appellant had served just over two months imprisonment. In addition, although this matter was not pressed, Ms Thomson suggested that the Judge had erred in the approach to home detention.
[13] We deal with the latter point first. In our view, the Judge’s approach on this issue was unimpeachable. The Judge properly turned his mind to the relevant factors. There was a need for personal deterrence and denunciation. The Judge cannot be criticised for his conclusion that home detention was not sufficient to meet those needs.
[14] Turning to the change in the appellant’s health, we consider the new information does not alter the picture. The high point for the appellant is his father’s observation that it would be “preferable” to be in the community for ongoing treatment and monitoring and that if “things take a turn for the worse” it is important that the appellant be with and have his family support. But, as Iain Hodges properly acknowledges, the appellant is able to be treated in prison. This Court has previously said that where a prisoner’s health deteriorates after sentencing, the appropriate regime is generally administrative.[8]
[15] Further, all we know is that the appellant has been diagnosed and has been treated. We have no information as to any future prognosis. As Ms Fenton submits, it is not at all clear what lies ahead. There is no evidential basis for us to conclude that the need for personal deterrence has fallen away.
[16] There is, accordingly, no basis for us to revisit the sentence imposed. If the appellant’s health deteriorates further, there are administrative means of addressing that.[9]

Result

[17] For these reasons, although we grant leave to adduce further evidence, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Hodges DC Manukau CRI-2010-092-5937, 2 September 2011.
[2] At [2].
[3] At [4].
[4] At [3].
[5] At [11].
[6] At [13].

[7] No formal application for leave to adduce was made but we have treated the appellant as having made the necessary application orally. The Crown did not oppose the admission of this evidence.

[8] See, for example, R v Hart CA199/93, 17 November 1993 at 4; R v Tuoro CA44/94, 17 March 1994 at 3; and R v Pomana [2007] NZCA 138 at [22].

[9] Section 41(1)(b) of the Parole Act 2002 empowers the Parole Board to direct the release of an offender on compassionate release if the offender is seriously ill and unlikely to recover. Section 62 of the Corrections Act 2004 deals with temporary release from custody and relevantly provides for temporary release where that will facilitate the compassionate or humane treatment of the prisoner.