R v Hobson [2018] NZDC 20629 (26 September 2018)

Last Updated: 6 July 2019

IN THE DISTRICT COURT AT CHRISTCHURCH

I TE KŌTI-Ā-ROHE KI ŌTAUTAHI

CRI-2017-009-008931

THREE STRIKES WARNING [2018] NZDC 20629

THE QUEEN

v

_{GARY HOBSON}

Hearing:	26 September 2018
Appearances:	C Bernhardt for the Crown R Glover for the Defendant
Judgment:	26 September 2018

_{NOTES OF JUDGE J A FARISH ON SENTENCING}

[1] Mr Hobson I gave you the sentence indication in June this year in relation to the charge of aggravated robbery, I told you at that stage that the starting point was just on five years’ imprisonment and because of your history which is directly relevant, I would have to uplift that sentence by six months to five and a half years’ imprisonment. At that stage, I recognised that you had successfully been on EM bail for over six months in Kaitaia. That had unravelled upon your return to Christchurch and you were then remanded back in custody and I told you then that I would be interested to know why Kaitaia had been so successful for you and I am going to come back to that in a moment. I also said that in relation to what Mr Glover had told me about Dr Porter (that there would be a private report come from Dr Porter outlining

_{the mental health difficulties that you had) and the motivation for your offending on}

R v GARY HOBSON [2018] NZDC 20629 [26 September 2018]

this occasion. At the time I gave you the sentence indication, I told you that I would be able to give you 15 percent credit for a guilty plea and that the end sentence would be somewhere perhaps between three and a half years and four years and that really was reliant on extra material becoming available from those two sources that I have just outlined.

[2] Now, because you pleaded guilty to a serious violent offence, you are now subject to the three strike legislation and the warning that I give you now is so important that you will receive a copy of it in writing and on the front of the warning is what I am going to tell you now but on the rear of the documentation are a list of offences which are deemed serious violent offences. Now for you, it is very important that you read that list because it is just not assaults, there are things such as indecent assault which is deemed a serious violent offence. So, if you were to be convicted after today of another serious violent offence and you were sentenced to a term of imprisonment, you would serve that term without eligibility for parole. If you were convicted of murder after today’s date then you would serve a life sentence, again without the eligibility for parole unless a High Court Judge deems that that was manifestly excessive. In that situation, the sentencing Judge would have to set a minimum period of imprisonment. So that is very important and as I said, you will receive a copy of that in writing before you go back to the prison.

[3] Now, turning back to your offending. Mr Glover explained to me and it is reflected in the presentence report that your motivation for the robbery of the chemist was the fact that you were short in relation to your prescription of Ritalin and your sole motivation was to obtain some more Ritalin. From the other information I gleaned from Dr Porter’s report, you most probably were under a great deal of stress at that time in relation to your relationship which did not appear to be going that well and whether or not what you believed was occurring was correct, it was definitely operating upon you in terms of increasing your stress.

[4] You have had a long history of prescription for Methylphenidate (Ritalin). Dr Harvey Williams prescribed you that medication 15 years ago and it seemed to bring about a change and a settling in terms of your behaviour and I noted at the time that I gave you the sentence indication that there had been quite a significant drop off

in terms of the offending for which you had had quite a significant history of. You had managed to get married, you have managed to hold down a job, you were living in a rural situation and you were actually getting on with your life, but unfortunately, due to a change in doctors, the Ritalin was stopped. When you obtained your new prescription for Ritalin it was at a far lower level and as the stress in terms of your personal circumstances increased, so did your need for Ritalin to try and calm you and you foolishly made this decision to go and rob this pharmacy of the Ritalin. I accept that you appreciate now just how frightened the people, both the pharmacist and the shop assistant, were when you entered. They were not to know you. All you were was a part Māori man; pretty scary, holding them up and they were not to know that you were actually legally prescribed Ritalin at the time, it was the fact that you were low in terms of your prescription.

[5] There is direct relevance in relation to your mental health difficulties and your offending. As I said, I have received a 10-page letter from your sister-in-law and it is very well written and I commend her for the detail of what she has told me. She told me about why Kaitaia worked so well for you. She said it was to do with whanau. She said you settled in very, very well. You have the respect of your family and you give them respect. They are more than willing to assist you and she is hopeful that upon release, you would look to be released to Hope House in Kaitaia which is a three- month reintegration programme and then they would be able to supply you with housing support and also assist you in terms of obtaining employment. So, it was very positive from the perspective of what is available to you upon release, but what she did tell me about was your early contact with not only the criminal justice system but also the mental health system and quite frankly, that system has failed you.

[6] You spent at least three, if not four lengthy periods in mental health hospitals in the North Island and when you were very young you were subject to what would now be described as barbaric treatment in terms of ECT treatment. You went to Australia. At that stage, the diagnosis was possibly schizophrenia or bipolar disorder effected by psychosis caused by drug abuse issues because by the time you were released, not only from the boys’ home but from the mental health hospitals, you were both abusing drugs and alcohol.

[7] Upon going to Australia, you also ended up in mental health institutions again with a diagnosis being either schizophrenia or something of that nature and as I have said, it was not until you met Dr Harvey Williams some 15 years ago that you have actually been reasonably stable in terms of one: the diagnosis; and also, the medication. And the article your sister referred me to is in the nursing journal. Your sister was a nurse and what that article talks about is the co-relation in terms of the limiting amount of mental health beds in terms of institutions and the increase in terms of people with mental health difficulties being in prison and you are evidence of that. It is unfortunate for you Mr Hobson that in the past perhaps, the mental health system has not been as well equipped, if I can put it that way, to deal with the mixed needs that you have had and it has not really, to a certain extent, recognised the complexities of your presentation both in relation to the manner in which you grew up, the fact that you were removed from your family at a reasonably early age, and the fact that your ADHD was most probably misdiagnosed from a very early age which then resulted in the ECT treatment and other medication.

[8] All of this is relevant in relation to s 8 factors under the Sentencing Act 2002 because they are matters that I can look at by way of mitigation. All of those factors I have just listed are all directly relevant in relation to you and your offending and so I can recognise that by giving you some further discounts.

[9] When I last saw you, we were at, I think it was, four years’, four months’ imprisonment. The end sentence that I am going to impose today is one of three years’, seven months’ imprisonment so it is slightly over the three and a half years that I indicated. You will need to go to the Board. You have still some work that you need to do in terms of release but can I encourage you to look at obtaining as much help as you can whilst in custody. You have whanau who are willing to embrace you and support you and Hope House in Kaitaia may be a very good option for you in terms of your release, because this is a residential release programme, so you spend three

months living in at Hope House with whanau coming in and supporting you and then they would look to transition you into your whanau care.

J A Farish

District Court Judge