Dawson v Police

[2021] NZHC 2340

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-000068

CRI-2021-463-000069 [2021] NZHC 2340

CHASE DAWSON

v

NEW ZEALAND POLICE

Hearing:	6 September 2021
Appearances:	A Schulze for the Appellant S Bird for the Crown
Judgment:	8 September 2021

JUDGMENT OF WALKER J

This judgment was delivered by me on 8 September 2021 at 3 pm Registrar/Deputy Registrar

DAWSON v NEW ZEALAND POLICE [2021] NZHC 2340 [8 September 2021]

Introduction

[1]                 Chase Dawson appeals his sentence of three years and six months’ imprisonment imposed in the Rotorua District Court on 4 June 2021 in respect of the following charges:

(a)robbery;1

(b)burglary;2

(c)conversion of a vehicle;3

(d)driving while disqualified;4

(e)theft (x 4);5

(f)breach of bail (x 3);6 and

(g)obtaining by deception.7

[2]                 Mr Dawson pleaded guilty to all charges. He argues that the sentence imposed was manifestly excessive. He contends that the starting point of four years’ imprisonment was too high, that a 15 month uplift for the remainder of the charges was excessive bearing in mind the principle of totality and that the 15 per cent allowance for personal mitigating factors was inadequate.

[3]I turn now to the offending.

1      Crimes Act 1961, s 234(1).

2      Section 231(1)(a).

3      Section 226(1)(a).

4      Land Transport Act 1998, s 32(1)(a).

5      Crimes Act, ss 219 and 223(d).

6      Bail Act 2000, s 38(a).

7      Crimes Act, ss 240 and 241.

The offending

[4]                 Mr Dawson does not dispute these facts. I deal principally with the charges of robbery, burglary and conversion as these are the most important for the purposes of the appeal.

[5]                 At approximately 3.00 pm on 17 October 2020, the victim was in his garden at his home address in Rotorua. He was recovering from a recent operation at home. The victim and the defendant are unknown to one another.

[6]                 The victim heard a car driving up his driveway and walked towards the approaching vehicle to investigate. The vehicle stopped and Mr Dawson got out. He was wearing a grey hoodie which was pulled over his head, grey sweatpants, and a red face mask covering his whole face apart from his eyes.

[7]                 Mr Dawson approached the victim and demanded, “Where is it? Give it to us, you have it, you know where it is.” A second person then got out of the vehicle. The victim did not know what Mr Dawson was talking about. Mr Dawson became angry and hit the victim in the head. The victim stumbled from the impact. He was then struck again to the back of his neck/head. This caused him to lose consciousness and fall to the ground. He was then dragged by Mr Dawson and his associate into the garage.

[8]                 The victim was passing in and out of consciousness as he watched Mr Dawson look through his wallet. Mr Dawson took the wallet, the victim’s cell phone and the watch off his wrist.

[9]                 Mr Dawson then walked into the house and saw the victim’s 12 year old stepson. Mr Dawson was surprised and asked the stepson if he had a phone—to which the stepson replied that he did. Mr Dawson took the phone which was located in a bedroom.

[10]             Mr Dawson and his associate took a number of other items from the house. In total they took a television, a cell phone, a power bank, a pair of sunglasses, a wallet containing $60 and 30 grams of tobacco. Mr Dawson and his associate loaded these

items into the victim’s vehicle which was parked in the driveway. They then left separately in the victim’s vehicle and the car that they arrived in.

[11]             The victim’s vehicle and watch were returned to him by Police. The total value of outstanding items is $4,690.

[12]             As to the remainder of the charges, it will suffice for present purposes to say that three of the thefts concerned Mr Dawson driving away from petrol stations without paying for petrol and the obtaining by deception charge involved him failing to pay for one night’s accommodation at a motel. The fourth theft charge related to taking two sets of keys and linen from that motel. The charges of driving while disqualified and breach of bail do not require further elaboration.

District Court decision

[13]             The District Court Judge imposed a starting point of four years’ imprisonment on the lead charge of robbery which he saw effectively as a home invasion. It involved Mr Dawson being disguised, accompanied by another person, and striking the victim in the head causing him to lose consciousness. The Judge considered there was a level of premeditation and planning to the offending. From that starting point he applied an uplift of 15 months for the remaining charges. This equated to a total of 63 months which he then adjusted downwards to 55 months (four years and seven months) to reflect the principle of totality.

[14]             The Judge then  awarded  what  he  described  as  “significant  credit”  for  Mr Dawson’s expressed commitment to leave behind his gang life and rehabilitate. He had also entered guilty pleas at a relatively early stage. The Judge accordingly allowed a discount of 15 per cent for personal mitigating factors and the full 25 per cent for guilty pleas. However, an uplift of six months was then applied to reflect  Mr Dawson’s significant number of previous convictions, including some 25 convictions for dishonesty offending. An additional uplift of three months was applied to recognise that Mr Dawson was on bail when most of the recent offences were committed. This was stated to be in line with the approach of applying mitigating

circumstances to the adjusted starting point and adding on uplifts for previous offending.8

[15]The end sentence imposed was three years and six months’ imprisonment.9

Legal principles

[16]             To succeed on an appeal against sentence the appellant must satisfy the court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 In all other cases, the court must dismiss the appeal.11 It is not for the appellate court to simply substitute its own view for that of the original sentencing judge.12 If the sentence is within the range that can properly be justified by accepted sentencing principles, the court will typically dismiss the appeal.13 It will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.14 The focus is on the final sentence imposed rather than the process by which that sentence was reached.15

Submissions

[17]             Mr Schulze, for Mr Dawson, submits that the District Court Judge’s starting point of four years was coloured by his reading of an earlier iteration of the summary of facts, prepared when Mr Dawson was facing a charge of aggravated robbery. By the time of sentencing he no longer faced that charge and the agreed summary for the purposes of sentencing had been redrafted. Mr Schulze submitted that the correct approach is to have regard to the guideline judgment for aggravated robbery of R v Mako and then to apply a 30 per cent discount to reflect the fact that the offence is not aggravated robbery but robbery. He contended that the cases of Jensen v New Zealand Police16 and Sorensen v R17 are closest to the scenario at hand and that a starting point

8 At [27].

9      Among other concurrent sentences, including a 12 month period of disqualification.

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

11     Section 250(3).

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

13 At [36].

14     At [30]–[35]. See also Te Aho v R [2013] NZCA 47 at [30].

15     Tutakangahau, above n 12, at [36].

16     Jensen v New Zealand Police [2020] NZHC 726 citing Skipper v R [2011] NZCA 250 at [28].

17     Sorensen v R [2020] NZHC 2982.

of two and a half years’ is a more appropriate response to the robbery charge.18 An adjusted starting point of three years would then reflect the interrelated charges of burglary and conversion of a vehicle.

[18]             Mr Schulze submits there is likely to be an element of double counting in the uplifts applied by the Judge. He argues that the uplift of 15 months, once adjusted for totality amounted to an uplift of 11 months despite the fact that the offending was at the lower end of the spectrum and that there appears to be some double counting by the imposition of a further six month uplift for personal aggravating features including conviction history and three months for offending on bail. I note that the three month uplift for offending on bail was not subject to the applicable discounts because it was applied at the second stage of the sentencing analysis, but no issue was taken with the sequence adopted by the Judge.

[19]             Mr Schulze submits that given the nature of the other offending, an effectively cumulative sentence of no more than nine months is warranted.

[20]             Mr Schulze refers to the significant disadvantages and trauma in Mr Dawson’s life warranting a personal mitigation discount. Mr Dawson has a significant drug debt due to methamphetamine use. The offending was a means of  reducing that  debt.  Mr Schulze contends that Mr Dawson’s genuine desire to take stock of his life and deal with his addiction, his commitment to rehabilitate and, importantly, to disassociate from the Head Hunter gang warrants a discount of no less than 20 per cent rather than the 15 per cent afforded by the sentencing Judge. He urges a tangible incentive should be provided for Mr Dawson to see that commitment through.

[21]             From an adjusted starting point of 45 months with discounts totalling 45 per cent, Mr Schulze submits that an uplift of six months is sufficient to reflect both his previous convictions and that the offending occurred whilst on bail. This would result in an end sentence of approximately 26 months’ imprisonment.

18     R v Mako [2000] 2 NZLR 170 (CA); and Smeed v The Police HC Whangarei AP50/00, 24 October 2000.

[22]             Mr Bird, for the Crown, contends that the starting point of four years’ imprisonment was well within range, if not generous. He characterises the offending as a home invasion involving two offenders. He refers to the use of actual violence, confrontation of a vulnerable child and theft of property worth a significant amount. Accepting there is no guideline judgment for robbery, Mr Bird notes that the sentencing guidelines for aggravated robbery remain applicable, subject to adjustment but that adjustment is not to be formulaic or arithmetical based on relative maximum penalties. He submits that in light of the significant aggravating features of this offending a starting pointing point of around seven years would have been appropriate had Mr Dawson faced a charge of aggravated robbery. Taking into account the lower maximum penalty for robbery, a four year starting point was not excessive.

[23]             With respect to the uplift applied for the balance of the offending, Mr Bird contends that the effective uplift was only seven months and therefore close to the submission made by Mr Schulze.19 He submits that the Judge was entitled to uplift the sentence for the dishonesty offending given that it was divorced in time and different in nature to the home invasion on 17 October 2020. As to personal factors, Mr Bird contends that no error  has  been  identified  in  the  Judge’s  treatment  of Mr Dawson’s stated methamphetamine addiction, his background or the extent to which either bore on his culpability. In these circumstances, there is no basis on which to increase the discount of 15 per cent to 20 per cent.

[24]             Mr Bird accordingly submits that the end sentence was not manifestly excessive. He urges the Court to dismiss the appeal.

Discussion

The starting point

[25]             Although the Court’s principal concern on an appeal is the end sentence, it is convenient to discuss each issue advanced by Mr Schulze separately before stepping back and making an overall assessment. There are four:

19     The starting point of 48 months was uplifted to 63 months then reduced to 55 months to reflect totality.

(a)Was the starting point too high?

(b)Did the uplifts involve any double counting or were they otherwise excessive given the nature of the other offences?

(c)Were the discounts for personal circumstances inadequate given what the pre-sentence report and alcohol and drug dependency report revealed about Mr Dawson’s background?

(d)Did the asserted errors lead to an end sentence that was manifestly excessive?

[26]             Mr Schulze places reliance on Sorensen and Jensen. He contends they bear a number of resemblances to the current offending. In Sorensen the starting point adopted by the sentencing Judge was assessed by reference to the Mako guidelines, adjusted for the lesser offence of robbery. The features of the offending were that two offenders entered the victim’s home without permission seeking a confrontation, although the use of weapons was unplanned. The starting point of three and a half years was not the subject of appeal which was instead entirely focused on discounts for mitigating factors. Doogue J nonetheless recorded his agreement that the starting point was appropriate by reference to Mako and the comments in Smeed v The Police.20

[27]             The key point in Smeed which Mr Schulze relies on is that the Court, allowing an appeal against sentence, adopted a starting point for robbery which was 70 per cent of the Court of Appeal’s starting point for aggravated robbery (rounded to the nearest half year) based on the percentage relativity of the maximum penalties.21 The problem with this reliance is that the Court of Appeal made clear in King v R that while the guidelines in Mako are applicable to robbery, arithmetical adjustments are not to be mechanically made to fit the differing maximum penalties at issue.22 This is consistent with the comment in Mako that what is required is an assessment of the true culpability in the circumstances of the particular offending.23

20     Smeed, above n 18.

21 At [13].

22     King v R [2019] NZCA 413 at [19] citing Heteraka v R [2013] NZCA 339 at [24].

23     Mako, above n 18, at [70].

[28]             In terms of the Mako framework, I do not accept Mr Schulze’s submission that the offending in this case resembles robbery of a small retail shop with threats or with a weapon or robbery of a taxi driver where a weapon is presented or violence is involved. I acknowledge that this offending does not readily fit the particular categories described in Mako. I consider however that the most important features were entry onto the victim’s property in a situation of planned confrontation (as suggested by the disguises). The fact that the victim was found, by chance, outside in his garden does not change that complexion. It is little different from forcibly entering the victim’s home. It must also be remembered that, after striking the victim about the head and dragging him into the garage unconscious, Mr Dawson and his co- offender did unlawfully enter the house and there confronted a vulnerable child aged 12.

[29]             It follows that I respectfully endorse the sentencing Judge’s view that this had the hallmarks of a home invasion. As he put it:

[21]  But what I cannot ignore, is that this was effectively a home invasion. It involved the victim being struck in the head, you were accompanied by another person and you had disguised yourself. So, clearly, it was your intention to rob the occupants of this property when you drove up the driveway indicating some level of premeditation and planning.

[30]In short, I see no error in the adoption of a four year starting point.

The uplift for other offending and totality

[31]             I view the uplift for the other offending as seven months rather than the 11 months which Mr Schulze challenges being the difference between the nominal starting point of four years or 48 months and the adjusted starting point of 55 months. This was to take into account the multiple incidents of dishonesty offending which were different in nature and in time to the lead offending.

[32]             The next related question is whether the uplift for previous convictions was justified—those previous convictions spanning from 2012 through to 2019. Some of those convictions led to lengthy sentences of imprisonment. The effective uplift for both previous convictions and offending whilst on bail was nine months. Here I respectfully depart from the Judge’s assessment. I consider that Mr Dawson’s personal

history of addiction is highly relevant here and that the combined uplift of nine months, bearing in mind that the brunt of the uplift is not ameliorated by the discount for personal mitigating factors, is manifestly excessive. I accept that there is a causative link between Mr Dawson’s addiction and his dishonesty offending. Uplifts for offending on bail are justified because they reflect the fact an offender has disregard for the court process. I consider that this is a less influential consideration here when addiction is a reason for the dishonesty offending. I consider that an uplift of six months rather than nine months is appropriate.

Discount for personal mitigating circumstances

[33]             Finally, there is the issue of mitigation. I begin with an acknowledgment of Mr Dawson’s stated intention to turn his life around which I commend. He has identified the necessary steps which displays valuable insight. I have read the pre- sentence report and alcohol and drug assessment report with care. Like many offenders, Mr Dawson’s deprivations have contributed significantly to his addiction which in turn is causative of his offending. However, I accept the Crown’s submission that the sentencing Judge appropriately took this into account, that a 15 per cent discount is significant and that no actual error in the Judge’s reasoning is identified.

Result

[34]             I agree with the sentencing Judge’s conclusion in respect of all issues save the uplifts to reflect prior offending and offending whilst on bail.

[35]             I allow the appeal to that extent only. The sentence of three years and six months is quashed and substituted with a sentence of three years and three months’ imprisonment.

............................................................

Walker J