R v Hughes [2014] NZHC 3208 (12 December 2014)

Last Updated: 15 December 2014

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202(1) OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2013-076-1117 [2014] NZHC 3208

THE QUEEN

v

_{BLAINE ROSS HUGHES}

Hearing:	12 December 2014
Counsel:	A-M McRae for Crown C Clifford for Mr Hughes
Judgment:	12 December 2014

_{SENTENCING NOTES OF HEATH J}

Solicitors:

Crown Solicitor, Timaru

_{Timpany Walton, Timaru}

R v HUGHES [2014] NZHC 3208 [12 December 2014]

Introduction

[1] Blaine Ross Hughes is for sentence today having pleaded guilty to one charge of attempted murder, one of unlawful possession of a firearm, one of possession of an offensive weapon, one of unlawfully taking a motor vehicle, one of theft of a sum in excess of $1,000 and one of burglary. He has already been convicted on each charge and received the necessary three strikes warning.¹

[2] When the sentencing was called this afternoon, I was advised by the escort that Mr Hughes was not prepared to come into Court. I asked the escort to tell Mr Hughes that he was required. Having done so, Mr Hughes again declined to enter the dock. Mr Hughes counsel, Ms Clifford, then spoke to Mr Hughes in the cells. He again refused to attend. In those circumstances, I elected to proceed with the sentencing in his absence; something that Ms Clifford had told him would happen if he did not come into Court on the last occasion.

[3] Initially two other charges were laid: one of kidnapping and one of injuring with reckless disregard. The Crown has elected not to offer evidence in support of those charges. Mr Hughes is discharged on each. On those charges, that has the effect of an acquittal.

[4] The lead offence for sentencing purposes is attempted murder, for which the maximum penalty is 14 years imprisonment. The principal issue with which I must grapple today is whether Mr Hughes should be sentenced to a finite term of imprisonment, or to a term of preventive detention.

Summary of facts

[5] On or about 23 September 2013, Mr Hughes began to work for Point Lumber at Washdyke. Between that date and 4 December 2013, he stole three wire ties, two coils of wire, a watch and a petrol can belonging to Point Lumber. The value of the

_{property was between $1000 and $5000. Those events gave rise to the theft charge.}

1. R v Hughes HC Timaru CRI 2013-076-1117 25 July 2014 Dunningham J (Minute), in respect of what occurred in Court on 22 July 2014.

[6] On the night of 18/19 November 2013, Mr Hughes was on Racecourse Road in Washdyke. He climbed over a fence and into the yard of Washdyke Autos. He smashed the window of a caravan and removed various items of camping equipment, electrical equipment and a .22 rifle from inside the caravan. After those items were placed into a wheelbarrow, he took them to his home, about 700 metres away. Those are the circumstances in which the burglary charge is brought.

[7] At approximately 8.15pm on 3 December 2013, Mr Hughes was on State

Highway 8 in Timaru. He was parked in a vehicle at Sir Basil Arthur Park, about

700 metres away from his home. He had been smoking synthetic cannabis in the vehicle. The circumstances I am about to describe form the basis of the attempted murder charge.

[8] Mr Hughes approached a 13 year old girl who was riding her bicycle north along State Highway 8 adjacent to the park. For some time, he has had ideations about killing people. On seeing this young stranger, those thoughts re-entered his mind.

[9] Mr Hughes engaged the victim in conversation. She left and continued to ride her bike north for about 800 metres before turning around and cycling back towards the park. She saw Mr Hughes standing at the side of the road.

[10] On the first occasion Mr Hughes had asked how far it was to Pleasant Point, as he was to pick up a car from his brother. The victim asked if he would like her to go and get her mother or father to take him to Pleasant Point. He declined the offer. She asked if he had a phone that he could use to contact someone. Mr Hughes said he would get a telephone, and he climbed through a fence to retrieve it from his own vehicle, in the carpark.

[11] The victim continued southwards. When she looked behind she saw that Mr Hughes had re-emerged onto State Highway 8 with a cellphone. He caught up to the victim, pulled her off her bicycle, by putting his arm around her throat and applying significant pressure. That pressure continued for sometime resulting in a loss of consciousness. This 13 year old girl was dragged backwards over a barbed wire

fence into an area of trees and shrubs adjacent to Mr Hughes vehicle, but hidden from the road.

[12] Fortunately, a witness had observed what had happened. She saw Mr Hugehs drag the girl by the neck towards the bushes. The witness took immediate steps to assist the young girl. She noticed a car that was parked at an odd angle. The passenger door was ajar and the keys were in the ignition. She heard screaming. Although she could not see anyone in the bushes, when she moved closer she saw the victim staggering out.

[13] When the witness came to the victim’s aid Mr Hughes had released her and left across State Highway 8. In addition to the physical impact of being dragged from her bike, the victim suffered scratches and bruising to her neck, cuts to her stomach, side and legs from being pulled across the barbed wire fence, in addition to her loss of consciousness. By his plea of guilty to the charge of attempted murder, Mr Hughes acknowledges that he had an actual intent to kill.

[14] Not long after these events, the police located the vehicle. It contained the stolen property from Washdyke Autos, including the .22 rifle.

[15] The police also found a machete on the rear floor of the car, underneath some personal belongings. The discovery of the firearm and the machete gave rise to the charges of unlawful possession of a firearm and possession of an offensive weapon.

[16] On 4 December 2013, Mr Hughes entered the Point Lumber yard in Washdyke. There was a 4 wheel drive vehicle in the yard. He located the keys inside the vehicle and drove away. He did not have permission to take the vehicle. That is the foundation for the charge of unlawfully taking a motor vehicle.

[17] Mr Hughes was located at about 5.50am on Saturday 7 December 2013 in the stolen vehicle. Initially the police were told that Mr Hughes intended to steal her bicycle and that she must have received her injuries when she fell into the fence.

[18] Subsequently and at Mr Hughes request, Mr Hughes explained to the police that he had had previous thoughts of killing people and when he saw the victim those thoughts returned. Mr Hughes told the police that when he pulled the victim off her bicycle and dragged her over the fence he intended to kill her. He gave no further thought to the consequences, if that had happened.

Impact on victim

[19] Both the victim and her mother have provided victim impact statements. Both are present in Court. I acknowledge your presence. I also acknowledge the fact that the victim impact statements were to be read but it was elected not to do so when Mr Hughes decided not to appear in the dock for sentencing.

[20] I should say, for the benefit of the victim and the victim’s mother, that by not using your name I am not intending to cause offence. I am doing so because I want to ensure there is no inadvertent breach of an order which I will make permanent later which will prohibit the publication of the name and any identifying particulars of the victim.

[21] Despite the young girl’s forgiving nature, I have no doubt that her emotional wellbeing will suffer significantly as a result of the offending. She was someone who was chosen at random and became a prospect for Mr Hughes to carry out a homicidal ideation he had formed.

[22] The victim however is a model of resilience. She does not appear to want to let an incident of this type affect her. While she deserves credit for her attitude and spirit, that does not diminish in any way the harm that has been done to her, both physically and emotionally by Mr Hughes.

Personal circumstances

[23] At the time of his offending Mr Hughes was aged 20 years. He is now 21. Notwithstanding his relative youth, he has accumulated some 24 criminal convictions in the District Court since 2011. Relevantly, they include burglary, unlawful taking of motor vehicles and breaches of community based sentences. On

imprisonment on conviction for burglary and unlawful taking of a motor vehicle. These offences were committed while he was subject to post release conditions.

[24] In addition, Mr Hughes has appeared in the Youth Court between 2008 and

2010 when no less than 53 charges were found to be proved. Of those, one was common assault.

Analysis

(a) The choices

[25] If a person is convicted of attempted murder, a qualifying violent offence is committed for the purpose of triggering the preventive detention provisions of the Sentencing Act 2002. In this case, I have been asked by the Crown to impose a sentence of preventive detention.

[26] There are three things of which I must be satisfied. The first is that a qualifying violent offence has been committed. That is proved. The second is that the offender was over the age of 18 years when the offence was committed. That has been proved also. Third, I must be satisfied that the offender is likely to commit another qualifying violent offence if released from prison at the sentence expiry date of any finite sentence that might be imposed. That is the issue with which I am concerned today.

[27] Relevantly, when considering whether to impose a sentence of preventive detention, I must take into account:²

(a) Any pattern of serious offending disclosed by the offender’s history,

(b) The seriousness of the harm to the community caused by the offending,

² Sentencing Act 2002, s 87(4).

future,

(d) The absence of or failure of efforts to address the cause or causes of the offending; and

(e) The principle that a lengthy determinate sentence is preferable to preventive detention, as long as that provides adequate protection for society.

(b) Finite sentence

[28] The need to apply the principle that a lengthy determinate sentence is preferable to preventive detention means that I will consider first what finite sentence would be imposed, if preventive detention were not imposed.

[29] Attempted murder is a grave crime. An intent to cause injury known to the offender to be likely to cause death is not enough.³ There must be an actual intent to kill. Nevertheless, the circumstances in which attempts to murder are made are varied, and there are no guidelines prescribed for the Court to apply on sentencing.

[30] The most serious aggravating factor is the random choice of a victim who had previously engaged in conversation with Mr Hughes. In cases involving violence against a child under the age of 14 years, I am required to take account of the defencelessness and the vulnerability of the victim and any serious psychological effects that the offending may have.⁴

[31] I refer later to the circumstances in which the offending occurred from Mr Hughes’ perspective. The maximum penalty for attempted murder is 14 years imprisonment. Given the aggravating factors relating to the offence I consider that a starting point of eight years imprisonment is justified. I add six months to that to

_{take account of other offending on which he is being sentenced today.}

³ _{R v Allen CA7/88, 23 June 1988.}

⁴ Sentencing Act 2002, s 9A.

[32] A further uplift is required to take account of the extensive criminal history, to which I have referred.

[33] The guilty pleas are the only mitigating factor. Given the time at which they were entered and the fact that the evidence to support an attempted murder charge came from an interview that Mr Hughes requested, I am prepared to allow a credit of

25% for those pleas.

[34] In finite terms, that would result in an effective end sentence of six years and nine months imprisonment. It would be open to impose a minimum non-parole period of up to two-thirds of that sentence.

(c) Should preventive detention be imposed?

[35] I turn now to consider whether, in light of the finite sentence that would otherwise be imposed, a sentence of preventive detention is necessary.

[36] In that regard, I am aware that Mr Hughes is assessed as at high risk of reoffending on release from sentence. Preventive detention is an indefinite sentence. A minimum period of imprisonment is fixed, following which release is at the discretion of the Parole Board. The nature of the sentence means that, if released, the offender remains on parole for the rest of his or her life subject to any conditions that the Parole Board may impose. The offender is at risk of recall if any further offending occurs.

[37] The main purpose of preventive detention is to protect the community from someone who is a danger to them.

[38] My focus is on whether Mr Hughes is likely to commit another qualifying violent offence if released from prison at the sentence expiry date. At best that could be at the end of six years and nine months on my own assessment. Considerations that militate against the imposition of preventive detention include Mr Hughes’ age; namely 20 years at the time of the offence. Against that other factors, one of which is that the Court has no jurisdiction to make an extended supervision order after release, which would otherwise favour a finite sentence.

[39] I have the benefit of reports from health assessors that have been prepared for the purpose of sentencing. The most recent was sought by Dunningham J because of her concern that all relevant information was not yet before the Court.

[40] The information made available by those professionals, and in particular by a psychologist who prepared the supplementary report at the request of Dunningham J, makes chilling reading. I have no doubt that Mr Hughes is at serious risk of committing qualifying violent offences on his release from prison. I do not share the confidence of one report writer who suggests that that risk may not arise immediately on release. I am conscious that in making a risk assessment, I am making a judicial judgment aided by opinions expressed by health professionals.

[41] The following factors, to which the most recent report writer refers, are:

(a) Mr Hughes lacks empathy for those against whom he offends. He has a callous disregard for the rights of others.

(b) In respect of the one time that he has been before the Court on a charge of assault, that related to a teacher. Mr Hughes told the report writer that his teacher deserved to be assaulted and that he had no sympathy for him, notwithstanding the injuries inflicted. The assault was calculated and controlled. Mr Hughes punched the victim twice with sufficient force to fracture his eye socket.

(c) Mr Hughes has described experiencing intermittently a “violent fantasy of strangling a woman to death and hiding her body somewhere”. In speaking to the report writer, he denied this fantasy was distressing, dismissing it as a “normal idea”. It appears that when he was aged 15 years, he made an attempt to carry out that fantasy on a friend, on a girl whom he described as a friend. He reported excitement at the thought of carrying out that exercise. That is not “normal” on any assessment.

(d) Mr Hughes has a tendency to use illicit substances; at the time of the present offending he was using synthetic cannabis. Such substances tend to act as a disinhibiter to criminal conduct. That makes the risk of violent offending more acute.

[42] In speaking with the probation officer when the pre-sentence report was prepared, Mr Hughes explained that the thought of getting away with murder was his main thrill but that the fear in his victim somewhat negated the enjoyment that he could have gained in the commission of his offences. Such comments are disturbing in the extreme.

[43] In addition, despite the fact that Mr Hughes has only been before a Court once on a charge of assault, he is reported to have had a history of violent behaviour both as an adolescent and an adult. Mr Hughes has failed to respond to supervision requirements. He has breached community based sentences. He has offended while subject to release conditions. He has recently stated that he will seek specialist help. However, that does not resonate with me, given the absence of any meaningful attempts to address the causes of his offending in the past and the real risk to members of the community if he were to re-enter without supervisory restrictions.

[44] One other point causes me concern. Mr Hughes’ failure to come into Court to hear what was said by victims and to accept the sentencing publicly is not a good indicator that he will follow through with the actions he has indicated.

[45] I am not satisfied that a finite term of imprisonment will protect the public. It follows that, notwithstanding Mr Hughes’ age, I consider that a sentence of preventive detention is required.

[46] I intend to impose the minimum non-parole period possible, namely one of five years. That will provide some incentive for Mr Hughes to address his underlying psychological problems in an endeavour to obtain a release from prison soon after the five years has expired, albeit subject to conditions of parole for the rest of his life. I incorporate within those comments the need to address issues of substance abuse.

Sentence

[47] I sentence Mr Hughes to a term of preventive detention on the charge of attempted murder with a minimum term of five years imprisonment. On all other charges, he is sentenced to one year’s imprisonment, to run concurrently.

[48] An order is made for the confiscation of Mr Hughes’ motor vehicle a Mazda Neo registration number AMM690. I make an order that emotional harm reparation be paid to the victim in the form of the proceeds of sale of the vehicle.

[49] I make a permanent order prohibiting the publication of the name or identifying particulars of the victim.

[50] I thank everybody for their attendance today.

Addendum

[51] After sentencing in open Court had concluded, the Registrar drew to my attention that the police were, in fact, unsure who was the owner of the motor vehicle. In those circumstances, I issued a Minute through the Registrar in which I cancelled the confiscation and emotional harm reparation orders.⁵ Leave is reserved for the Crown to reapply if such relief (or a forfeiture order) were deemed

_{appropriate at some future time.}

_{P R Heath J}

⁵ See para [48] above.