Dashwood v Police - [2020] NZHC 913

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 913
Decision Date: 5 May 2020

CaseChat Overview and Summary

In Dashwood v Police, the appellant, Mr Dashwood, appealed against his sentence for assault with intent to injure, as a party, which was imposed by the District Court. The offending was a planned attack on another inmate at Hawkes Bay Regional Prison. The District Court Judge found Mr Dashwood’s role in the assault was equally as culpable as his co-offenders and sentenced him to 12 months imprisonment. The primary legal issue in the appeal was whether the District Court Judge erred in his assessment of the appellant’s culpability, which in turn affected the starting point and end sentence. The Court of Appeal found that the Judge did not misunderstand the facts in a way that affected the appellant’s culpability, and that it was open to the Judge to regard the culpability of all the offenders as being equivalent given the premeditated nature of the offence. The Court of Appeal also found that the end sentence was not manifestly excessive. The appeal was dismissed.

Orders