BETWEEN DRE CHADWICK Appellant AND THE KING Respondent

[2023] NZHC 3654

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-99

[2023] NZHC 3654

BETWEEN

DRE CHADWICK

Appellant

AND

THE KING

Respondent

Hearing:	12 December 2023
Appearances:	MA Dempster and L Davis for the Appellant LK McMaster for the Respondent
Judgment:	13 December 2023

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 13 December 2023 at 11.30am

Registrar/Deputy Registrar

Date……………………………

Solicitors:        McKenna King Dempster, Hamilton

Hamilton Legal, Hamilton

CHADWICK v R [2023] NZHC 3654 [13 December 2023]

Introduction

[1]    Dre Chadwick appeals against the 22 November 2023 decision of Judge R G Marshall sentencing him to five months’ imprisonment on a charge of common assault.1

[2]    Mr Chadwick and a co-defendant, Mr Apiti, were sentenced together after they both pleaded guilty to a charge of common assault.2 Mr Apiti received a sentence of nine months’ supervision.3

Offending

[3]    On 18 March 2023 at 11.30 pm, Mr Chadwick and his (Mongrel Mob) associates were at a bar on Bryant Road in Hamilton. A fight broke out at the bar which involved Mr Chadwick and his associates. The victim, who was a doorman at the bar, intervened to try and stop the fight.

[4]    Mr Chadwick grabbed the victim and pushed him towards the bar counter. He has then swung at the  victim  with  his  right  hand,  punching  him  in  the  head.  Mr Chadwick then grabbed the victim around the back of his head with his left hand. While holding the victim’s head in place, he used his right hand to punch him in the head again.

[5]    Mr Chadwick’s associates, including Mr Apiti, then continued to assault the victim.

[6]    As a result of the entire assault, the victim was knocked unconscious. He sustained extensive bruising to the right side of his face, a facture of the meteor bone near his eyes, a concussion, and a cut to his forehead. It is unknown whether any of those injuries were caused by Mr Chadwick’s offending.

1      R v Chadwick [2023] NZDC 26013 [Sentencing Notes].

2      Crimes Act 1961, s 196; maximum penalty one year imprisonment.

3 Sentencing Notes, above n 1, at [10].

Personal history

[7]    Mr Chadwick is 26 years old. He has 16 prior convictions that include dishonesty and family violence offending. He also has convictions for breaching conditions of supervision in 2020, failing to answer District Court bail in 2020 and 2019, and breaching conditions of intensive supervision in 2017.

District Court decision

[8]    The District Court Judge adopted a starting point of nine months’ imprisonment. He then applied a discount of 25 percent for Mr Chadwick’s guilty plea and a further allowance of five percent to reflect the matters referred to in the pre- sentence report. The end sentence reached was five months’ imprisonment. The Judge concluded that an alternative community-based sentence would not be appropriate due to Mr Chadwick’s recent history of offending while on release conditions and failure to report to Community Corrections.

Appellant submissions

[9]    Ms Dempster, counsel for Mr Chadwick, submits that a sentence of community work and supervision was the least restrictive sentence that was available in the circumstances. Ms Dempster highlights that Mr Chadwick is entitled to the presumption of innocence in relation to the charge of breaching his release conditions. She says that his failure to report was because he had suffered a dog bite that required hospitalisation.

[10]   Ms Dempster also submits that the Judge erred in failing to consider parity between Mr Chadwick and his co-defendants, and in particular, Mr Apiti. She says that Mr Chadwick has a better record of compliance with community-based sentences than Mr Apiti, who the District Court Judge assessed as having a better ability to undertake a community-based sentence. Ms Dempster submits that in light of the pair’s relevant history of non-compliance, the two ought to have received at least the same sentence.

[11]   Ms Dempster therefore submits that the end sentence of imprisonment was manifestly excessive. She says that the correct sentence ought to have been nine months’ supervision plus community work.

Respondent submissions

[12]   Ms McMaster, for the Crown, submits that the Judge correctly observed that Mr Chadwick had offended shortly after his release from custody and while subject to release conditions. In response to the suggestion that Mr Chadwick’s failures to report were the result of a dog bite, Ms McMaster observes that no medical reports have been filed in support of that position, and that the dog bite was some time in March 2023, which would not excuse failing to report some six months later. Ms McMaster also submits that there is nothing before the Court to suggest that Probation was contacted about such an injury preventing reporting in any event.

[13]   Ms McMaster accordingly submits that the Judge was correct to conclude that Mr Chadwick was unlikely to comply with a community-based sentence. In support of that position, she highlights his history of non-compliance with court directions and sentences. She says it is significant that the appellant has never completed a community-based sentence without compliance issues.

[14]   Turning to the issue of parity, Ms McMaster submits that although Mr Apiti also has a history of non-compliance, both his most recent sentence of home detention and the period of post detention conditions were served by him without any identified breaches.

Relevant law

[15]   Mr Chadwick has a right to appeal his sentence under s 224 of the Criminal Procedure Act 2011. This Court is the first appeal Court pursuant to 247 of the Act.

[16]   The approach to sentence appeals is well-settled. This Court must allow the appeal if satisfied that there has been an error in the sentence imposed and that a

different sentence should be imposed.4 The sentence below must be shown to be manifestly excessive or wrong in principle.5

Discussion

[17]   I have found this appeal somewhat difficult, but have concluded that the Judge did not err in the sentence imposed.

[18]   The focus of Ms Dempster’s submissions on the appeal was the suggested lack of parity with Mr Apiti. This was framed both in terms of Mr Apiti having greater culpability than Mr Chadwick, and a poorer history of compliance with community- based sentences.

[19]   In terms of culpability, I do not agree that Mr Apiti had very significantly higher culpability than Mr Chadwick. It was Mr Chadwick who instigated the assault on the victim when, in his employment role, the victim sought to intervene and stop the fight that had developed. Mr Chadwick punched the victim twice to the head, which is serious offending in and of itself. Mr Apiti also punched the victim to the head once, and held the victim down while other co-defendants continued to assault the  victim.   Accordingly,  Mr Apiti’s   culpability  was,  I  accept,  greater  than    Mr Chadwick’s, though as noted, not very significantly so.

[20]   The Judge’s sentencing  notes do not  disclose a starting point  adopted for  Mr Apiti, and it appears from the Judge’s observation “on your part Mr Apiti you were involved in the assault as well but not to the same extent”, that the Judge may have underestimated the extent of Mr Apiti’s involvement. Certainly the Crown’s submissions at sentencing in the District Court envisaged a slightly sterner sentence for Mr Apiti than Mr Chadwick, being one of intensive supervision coupled with community work,  rather  than  supervision  coupled  with  community  work  for  Mr Chadwick.6 It is therefore arguable that Mr Apiti’s sentence was generous.

4      Criminal Procedure Act 2011, s 250(2).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

6      As the Crown notes on the appeal, however, the position taken in the written sentencing submissions for the Crown in the District Court was prior to seeing the pre-sentence report, and the observations in relation to Mr Chadwick’s recent non-compliance with his post-release conditions.

[21]   Turning to each of Mr Chadwick and Mr Apiti’s history of compliance or otherwise with community-based sentences, Ms McMaster accepts that when considering the position as far back as approximately 2016, Mr Apiti has a pattern of non-compliance which is poorer than Mr Chadwick’s (including a breach of community work in October 2020, a failure to answer bail in 2018, and breaches of conditions of supervision and community work in 2017 and 2016). However, there is often little utility in attempting direct comparisons between different offender’s personal   circumstances.   Ultimately   the   Judge   was   required   to   consider   Mr Chadwick’s own position, and make an assessment of his likely compliance with a community-based sentence.7

[22]   Mr Apiti’s last sentence was a sentence of nine months and 14 days’ home detention, and the information before the Court was that he had been fully compliant with that sentence, together with his release conditions. In my view, this does distinguish Mr Apiti’s position from Mr Chadwick’s, where the information before the District Court Judge was that there was ongoing non-compliance by him with his sentence  release conditions.  It was for that reason that the report writer assessed   Mr Chadwick as having a low ability to comply with a community-based sentence.

[23]   On the same day that Mr Chadwick was sentenced in the District Court, he was charged with breach of his release conditions. The charge refers to 19 October 2023 as the date of the offence, which was only a few weeks prior to Mr Chadwick’s sentencing. Mr Chadwick denies the breach and has entered a not guilty plea to the charge. Ms Dempster states that her instructions are that Mr Chadwick was unable to comply with his reporting obligations due to a dog bite suffered in or around March 2023 (for which he was hospitalised), and that he had been told that he did not need to report. Nothing has been put before the Court on the appeal to substantiate these matters however, and the summary of facts which accompanies the charge of breach of release conditions suggests that there was a failure by Mr Chadwick to report from relatively early on in his release conditions. He reported to Community Corrections on 26 January 2023 and was inducted into his release conditions, and required to report every week at the same time until further advised. He then reported on 6 October 2023

7      Sentencing Act 2002, s 17.

and was issued with a further instruction to report on 19 October 2023. The summary states that Mr Chadwick failed to report on 19 October 2023, and then on six consecutive occasions to 16 November 2023. The summary of facts states “the defendant has also been non-compliant in the past”. Accordingly, while this material was not before the Judge at sentencing, it supports the statement in the PAC report that there had been ongoing non-compliance by Mr Chadwick with his conditions of release.

[24]   In this context, I do not consider the Judge erred when he concluded (pursuant to s 17 of the Sentencing Act) that Mr Chadwick was unlikely to comply with a community-based sentence, and in particular a sentence of supervision, which is of course geared around regular reporting. The Judge clearly had the requisite degree of confidence that Mr Apiti could comply with a community-based sentence, given his very recent compliance with a lengthy sentence of home detention. In my view, that provided a sufficient basis for the Judge to distinguish between the two sentences.

[25]   Accordingly, while Mr Chadwick’s sentence might be seen as stern, this was serious offending properly reflected in my view in the starting point of nine months’ imprisonment. An aggravating factor was that the offending occurred only a matter of weeks following Mr Chadwick’s release from custody, and while subject to release conditions. There were reasonable grounds, on the information before the Judge, for the Judge to reach the conclusion that Mr Chadwick was unlikely to comply with a community-based sentence, and accordingly to distinguish his position from that of Mr Apiti.

Result

[26]The appeal is dismissed.

Fitzgerald J