Dashwood v Police
[2020] NZHC 913
•5 May 2020
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-020-002430
[2020] NZHC 913
ROBERT JULIAN DASHWOOD v
NEW ZEALAND POLICE
Hearing: 28 April 2020 Appearances:
D Foster for the Appellant
F E Cleary for the Respondent
Judgment:
5 May 2020
JUDGMENT OF COOKE J
[1] Mr Dashwood pleaded guilty to one charge of assault with intent to injure as a party. 1 He was sentenced to 12 months’ imprisonment on 4 March 2020 in the District Court at Hastings.2 Judge Sygrove directed the sentence to be served cumulative on his existing term of imprisonment for sexual offending.
[2] Mr Dashwood appeals his sentence on the grounds the District Court Judge erred by misconstruing the summary of facts, and uplifted the sentence because he misunderstood Mr Dashwood’s actions.
1 Crimes Act 1961, ss 66 and 193 maximum penalty three years’ imprisonment.
2 New Zealand Police v Dashwood [2020] NZDC 3849.
DASHWOOD v NEW ZEALAND POLICE [2020] NZHC 913 [5 May 2020]
Factual background
[3] Mr Dashwood is 28 years old and a patched member of Black Power. At the time of the offending he was serving a sentence at Hawkes Bay Regional Prison. His co-offenders are also Black Power members. The charges arose from a planned group attack on another inmate. The incident was captured on the Hawkes Bay Regional Prison’s CCTV system. The victim is a fellow inmate and a patched member of the Mongrel Mob.
[4] At approximately 1.30 pm on 9 May 2019 the victim was in wing three of the High Security Unit. Corrections staff unlocked prisoners allowing them to mix. Once Corrections staff had exited the wing Mr Dashwood’s co-offender, Mr Young-Gray, went to the victim’s cell, followed by the victim. The other co-offenders, Messrs Wereta and Arahanga, stood in the corridor a short distance from the cell. The victim was positioned just inside the cell with his back to the door.
[5] Mr Dashwood moved from the corridor to just outside the cell where he remained as lookout. Mr Wereta then entered the cell and punched the victim with a closed fist in the back of the head with sufficient force to cause the complainant to fall forward and onto his bed, face down. Mr Wereta continued to punch the complainant about the head as he lay on the bed. Mr Young-Gray held the victim down.
[6] Mr Arahanga then entered the cell, stepped onto the bed and stomped on the victim’s head and neck as he lay face down on the bed. He stomped on the victim approximately 15 to 20 times. He then punched the victim numerous times around the head area. At some point during the attack Mr Wereta removed the victim’s shoes.
[7] The victim managed to get himself up off the bed and attempted to leave his cell. Messrs Young-Grey, Wereta and Arahanga struggled with him and pulled him back into the cell where the assault continued. While this occurred, Mr Dashwood closed the cell door. Mr Dashwood remained outside the cell door in order to prevent the victim from escaping, or anyone else coming to his aid.
[8] A short time later the victim managed to escape from his cell and into the corridor. The offenders left the cell, Mr Mereta taking the victim’s shoes with him.
[9] The victim refused medical treatment and there are no medical records of his injuries. Corrections staff, however, observed bruising and swelling to his face.
District Court decision
[10] The Judge found this was a “gutless assault” and noted throughout the assault Mr Dashwood remained outside the cell door as lookout, and made no attempt to assist the victim.3 He then observed that “after the assault and beating that the complainant got you closed the cell door with him still inside and you remained outside the cell door in order to prevent him from escaping or anyone else coming to his aid”.4 The Judge concluded Mr Dashwood’s role was equally culpable as his co-offenders.
[11] The Judge adopted a starting point of 18 months’ imprisonment with an uplift of four months for Mr Dashwood’s previous convictions resulting in an end sentence of 22 months. After considering totality the Judge held an end sentence of 12 months’ imprisonment was appropriate.
Approach to appeal
[12] This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that:
(a)For any reason, there is an error in the sentence imposed on conviction; and
(b)A different sentence should be imposed.
[13] A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.5 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.6
3 At [1].
4 At [2].
5 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].
6 Ripia v R [2011] NZCA 101 at [15].
Was there a factual error by the Judge?
[14] Mr Foster for Mr Dashwood submits the Judge misinterpreted the summary of facts in finding that Mr Dashwood remained outside the cell door after the assault to prevent the victim from escaping. Mr Foster points out that, properly interpreted, the summary of facts records that Mr Dashwood standing outside the door while the assault took place, and that he left with the other offenders. Mr Foster argues that this error resulted in the Judge misunderstanding the level of Mr Dashwood’s culpability, which resulted in a manifestly excessive end sentence.
[15] I do not accept that the Judge misunderstood the facts in a way relevant to culpability. The factual circumstances of the offending were relatively straightforward. The Judge correctly identified Mr Dashwood’s role was to act as lookout. He also correctly identified that Mr Dashwood closed the cell door in order to prevent the victim escaping or anyone else coming to his aid. The Judge’s statement that this occurred “after” the assault is a misdescription, but I do not accept the Judge misunderstood the position. It was simply an awkward use of language.
Culpability
[16] Mr Foster further argues the appropriate starting point ought to have been six months imprisonment, referring to R v Penewi which also concerned a group assault on another inmate from a rival gang in prison.7
[17] In my view this case is different as Mr Penewi was not charged as a party to the main offending but solely for his own actions in attempting to kick the victim. The Judge found his actions were “not serious compared to other offending of this type” and the offender “played a relatively minor role in the attack”. Here Mr Dashwood was charged as a party to recognise his role in a planned group attack of a reasonably serious nature.
[18] I accept, however, that it may be appropriate to impose a lesser sentence on an offender guilty as a party if they had a less significant role in the commission of the
7 R v Penewi [2019] NZHC 479.
offence.8 That might be so in relation to someone acting as a lookout rather than an assailant. In R v Betham the defendant faced charges of manslaughter as a party arising from a gang-related attack on a fellow prisoner.9 The Judge was satisfied that Mr Betham did not physically deal any blows but encouraged and assisted in the attack by acting as lookout, and accepted that his involvement was less culpable than his co- offenders adopting a starting point of seven years.10 A starting point of nine years was taken for his co-offender who had participated by remaining in the cell throughout the close attack to provide support and back-up if needed.11
[19] A range of factors may be relevant to assessing whether an offender liable as a party should receive a lesser sentence than the principal offender. If the offence is particularly serious, such as murder or manslaughter, there may be greater culpability attached to committing the principal acts. This may still be so with less serious offending. If the offending is premediated and proceeded as planned, there may be less significance in the differing roles that each played, however. Much depends on the circumstances. For example, if the person guilty as a party primarily orchestrated the offending their culpability might even be greater than the principal offender notwithstanding that they did not themselves commit the assault.
[20] Here the Judge concluded that Mr Dashwood’s role was “as important and culpable as the three other offenders”. He sentenced Messrs Wereta and Arahanga to the same sentence adopting exactly the same uplifts and discounts.12 That approach may be regarded as an available conclusion given this was a premeditated gang related prison beating. For myself I would still see some remaining difference in culpability, but I accept it was open to the Judge to regard the culpability of all the offenders as being equivalent in this kind of case. There is no error in itself in doing so.
8 See Geoff Hall Hall's Sentencing (looseleaf ed, LexisNexis) at APPII.6.1.
9 R v Betham [2016] NZHC 2107.
10 At [81]–[82] and [88]–[89].
11 At [63]–[64] and [70].
12 That is a starting point of 18 months, uplifted to 22 months for previous offending, then reduced to 12 months – Police v Wereta [2019] NZDC 23232, Police v Arahanga [2020] NZDC 3946. Mr Young-Gray was sentenced by a different judge, and his sentence involved other offending, with the prison assault held to warrant a 18 month starting point – Police v Young-Gray [2019] NZDC 26466.
The end sentence
[21] Mr Foster argued that the end sentence was manifestly excessive. The Judge went through a somewhat unusual exercise in reaching the final sentence. He started with 18 months, uplifted for four months for “an appalling history of criminality”, and then reduced the sentence to 12 months’ imprisonment because of “an allowance for totality”.
[22] Totality did not apply in any direct sense here as Mr Dashwood was only being sentenced for a single offence. But it is recognised that the totality principle can be relevant to the imposition of sentences when the defendant is already serving a term of imprisonment. Such sentences are imposed cumulatively on the sentence already being served, as the Judge did here, subject to the application of what can be described as the totality principle. But the Court of Appeal have emphasised that the application of the totality principle in this sense has limited application.13 In Tryselaar the Court of Appeal said:
[18] … Offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response. That would be seriously undermined if sentences for such offending required adjustment to reflect the fact that the offender is already serving a sentence of imprisonment. …
[23] For that reason any adjustment for totality in the present case does not seem to me to be justified. On the other hand an 18 month starting point may be regarded as high given the comparable cases I address below, particularly given that Mr Dashwood acted only as a lookout. Furthermore the Judge gave no discount for a guilty plea as he should have done.
[24] What matters is the end sentence, rather than the process by which it has been reached.14 In addition to R v Penewi,15 the following cases involving prison assaults can be considered by way of comparison.
13 See Tryselaar v R [2012] NZCA 353; R v Connelly [2010] NZCA 52; Kepu v R [2011] NZCA 104.
14 Ripia v R, above n 6.
15 R v Penewi, above n 7.
(a)Kepu v Police:16 The offender and another inmate went to the victim’s cell. The victim was subject to a prolonged assault. He suffered multiple deep stab wounds to his back and torso as well as swelling and bruising to the right temple area. After the assault occurred the appellant and his co-offender left the victim’s cell and attempted to conceal their actions by cleaning themselves and attempting to dispose of clothing and other items. The District Court Judge adopted a starting point of 15 months’ imprisonment. The offender appealed on the grounds the sentence ought to have been concurrent. Muir J considered the offending involved planning and premeditation, that it occurred within the prison environment, serious injury, attack to the head and the fact the attack was prolonged and coordinated. The Judge commented the starting point adopted by the District Court Judge was lenient, and determined that the sentence was not manifestly excessive.
(b)R v Stewart:17 Three defendants were involved in a coordinated attack on a fellow inmate at Hawke’s Bay regional prison. One acted as lookout, guarding the door to the cell where the attack took place and prevented Corrections officers from entering the cell. He was charged as a party with assault with intent to injure. The District Court Judge adopted a starting point of 18 months’ imprisonment for all defendants irrespective of their roles.18 The other two defendants unsuccessfully appealed to the High Court, on the grounds a sentence of home detention should have been imposed.19
(c)Haeata v New Zealand Police:20 While serving a sentence at Rimutaka Prison the appellant attempted to prevent a Corrections officer from moving items of property. In the resulting scuffle the appellant pulled out a makeshift weapon from his pocket – a sock with two pool balls inside. He swung the weapon and forcefully struck the officer with it.
16 Kepu v New Zealand Police [2016] NZHC 2410.
17 R v Stewart [2019] NZDC 24535.
18 At [8].
19 Stewart v R [2020] NZHC 60; and Papa v R [2020] NZHC 80.
20 Haeata v New Zealand Police [2019] NZHC 3268.
The starting point of 18 months’ imprisonment was upheld on appeal to the High Court, but the end sentence adjusted to 12 months’ imprisonment to reflect a discount for the appellant’s youth.
[25] In the present case a starting point of approximately 12 months’ imprisonment, reflecting Mr Dashwood’s lesser participation as a lookout may have been appropriate. An uplift for Mr Dashwood’s significant criminal history along the lines adopted by the Judge would then have been appropriate. A discount for the guilty plea should then have been applied. That would have resulted in an end sentence equivalent to that which the Judge ultimately imposed. In my view the end sentence of 12 months’ imprisonment is not outside the available range, and is not manifestly excessive.
[26]For these reasons the appeal is dismissed.
Cooke J
Solicitors:
Foster Law, Hastings for the Appellant
Crown Solicitor’s Office, Napier for the Respondent
9
0