Dawson v Police

[2020] NZHC 2296

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000106

[2020] NZHC 2296

BETWEEN

WILLIAM EDWARD DAWSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 September 2020
Counsel:	K L Chalmers for the Appellant A Harvey for the Respondent
Judgment:	4 September 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue on 4 September 2020 at 9.30 am.

Registrar/ Deputy Registrar Date:

Solicitors:

Crown Solicitor, Christchurch

DAWSON v NEW ZEALAND POLICE [2020] NZHC 2296 [4 September 2020]

Introduction

[1]    The appellant, Mr Dawson, appeals a sentence of 26 months’ imprisonment imposed by Judge Garland on 26 June 2020.1 The sentence was imposed on him after he pleaded guilty to: two charges of burglary;2 unlawfully using a motor vehicle;3 common assault;4 and presenting a firearm.5

[2]Mr Dawson appeals his sentence, primarily upon the following grounds:

(a)the sentence imposed by the Judge was manifestly excessive;

(b)Mr Dawson should have received a greater discount for his cooperation with police, and a further discrete discount of five per cent for remorse and offer to pay reparation; and

(c)not enough credit was given in respect of guilty pleas entered against the lead charges.

Factual background

The burglary charges

[3]    In relation to the two burglary charges, the location of the premises was a remote rural residential property. The victim and his family were not at home during the period that these two burglaries took place.

[4]    At about 9.00 am on 11 April 2019, Mr Dawson drove to a rural residential area in Loburn, North Canterbury, with the intention of committing a burglary. He arrived at the victim’s property and entered several sheds. He began loading up his motor vehicle with items from the shed, all belonging to the victim, including a gas bottle, a small safe containing ammunition, power tools, and chainsaws. He then used crowbars and a chainsaw to remove a large firearm safe, which was affixed to the shed

1      Police v Dawson [2020] NZDC 12164.

2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.

3      Section 226(1); maximum penalty seven years’ imprisonment.

4      Section 196; maximum penalty one year’s imprisonment.

5      Arms Act 1983, s 52(1); maximum penalty six months’ imprisonment or $10,000 fine.

wall. That safe contained a .22 calibre semi-automatic rifle. He then left, with the property that he had stolen.

[5]    At about 10.00 am on the same day, Mr Dawson returned to the property with an associate, this time driving a larger vehicle. Both men entered a shed on the property, and gathered further items belonging to the victim, loading all the stolen materials into their vehicle. These items included more power tools, a flat screen television, and speakers. Mr Dawson’s associate drove away from the property on the victim’s motorbike. Mr Dawson drove away in the vehicle, with the other stolen property aboard.

[6]    During both burglaries, Mr Dawson hid his appearance by wearing a jacket with a hood up and at times wearing gloves. His associate wore a balaclava. The estimated total value of the property stolen was just under $35,000.

[7]    A search warrant relating to the burglaries was executed on 15 April 2019, at an address which was occupied by a person known to Mr Dawson. That associate assisted the police in recovering a large portion of the stolen property, including the firearm, the motorbike, and a number of other valuable items. The estimated value of the property recovered was $25,657, meaning that the value of the stolen property not recovered is $9,219.93.

[8]    On 19 April 2019, Mr Dawson voluntarily went to the police and admitted to the burglaries.

[9]    In explanation for the alleged offending, Mr Dawson said he was intending to visit someone, however he went to the wrong place. He said he was under the influence of alcohol and could not remember returning to the address.

The motor vehicle charge

[10]   On 8 August 2019, a Subaru Impreza motor vehicle was stolen from an address in Christchurch. On 8 September 2019, Mr Dawson was found driving the stolen vehicle in Christchurch. Significantly, it had the plates changed and showed a different registration plate. Mr Dawson was stopped and spoken to by police. The police

inspected the VIN of the vehicle and realised that the VIN belonged to the stolen vehicle. Mr Dawson claimed that he did not know that the vehicle was stolen.

The firearm and assault charges

[11]   In relation to the assault and firearm offences, Mr Dawson and the victim were known to one another. At the relevant time, Mr Dawson was in a relationship with the victim’s daughter. At about 6.00 am on 14 December 2019, Mr Dawson was at the victim’s home in Oxford. Mr Dawson was having a verbal argument with the victim’s daughter. The victim went inside with her daughter, and picked up the phone to call the police.

[12]   Mr Dawson walked into the house carrying a shotgun. He pulled out the phone cord from the wall so the victim could not call the police, and then he pointed the shotgun at her, holding it at waist height, telling her “don’t call me a black bastard”. Mr Dawson then pushed the victim in the shoulder area, forcing her to walk backwards. The victim’s daughter jumped in between her mother and Mr Dawson to try and protect her mother, telling Mr Dawson not to threaten her mother.

[13]   Mr Dawson then went outside and moved his quad bike around the back of the property, which had a dog sitting on the back. The victim went outside to try and untie the dog, and Mr Dawson told her not to otherwise he would punch her. She continued to walk towards the bike, and Mr Dawson walked towards her and he pushed her in the face with an open palm, knocking her glasses off her face. She stumbled backwards and fell against a hedge which broke her fall. As a result, she did not suffer any injuries, but she was very much shaken.

[14]   In explaining the offending, Mr Dawson said he was not under the influence at that time, and things just got out of control.

The District Court sentencing

[15]   The Judge arrived at an overall starting point of three years’ imprisonment. This was made up of the following notional starting points:

(a)two and a half years’ imprisonment for the two burglary charges;

(b)three months’ imprisonment for the motor vehicle charge; and

(c)three months’ imprisonment for the firearm and assault charges.

[16]   A discount of four months (approximately  11  per  cent)  was  allowed  for Mr Dawson having taken responsibility for the offending, by having presented at the police station. As against that, he was not able to provide the victims with any reparation.

[17]   A further discount of six months was given for Mr Dawson’s guilty pleas, which came eight days before the judge-alone trial, but upon the amendment of two of the “lesser charges”. This was a discount of a little over 18 per cent.

Approach to appeal

[18]   An appellant is able to appeal a sentence imposed as of right.6 The High Court, as the first appeal court, must allow the appeal if satisfied that there was an error in the sentence imposed, and that a different sentence should be imposed.7

[19]   If the sentence under appeal can be properly justified, having regard to the relevant sentencing principles, this Court may not merely substitute its own views for those of the sentencing judge. The exercise of the sentencing judge’s discretion can only be interfered with if the sentence imposed was manifestly excessive.

[20]   Toogood J captured the essence of the test in Larkin v Ministry of Social Development, saying:8

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence was reached.

6      Criminal Procedure Act 2011, s 244.

7      Section 250.

8      Larkin v Ministry of Social Development [2015] NZHC 680 at [26], citing Ripia v R [2011] NZCA 101 at [15].

[21]Similarly, in Tutakangahau v R, the Court of Appeal held that:9

… the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.

[22]   In addition to the identification of error, the applicant must persuade the appeal court that the ultimate sentence imposed was outside the range available to the sentencing judge.

Submissions

Appellant’s submissions

[23]   Ms Chalmers, for Mr Dawson, submitted that the starting point the Judge took on the two lead charges of burglary was out of all proportion to the offending, in that he considered them separately, coming to a cumulative adjusted starting point, which did not accurately reflect the offending. She submitted that the more accurate way to calculate the starting point would be to consider the two burglaries as a whole.

[24]   Secondly, Ms Chalmers submitted that, having regard to the case of Arahanga v R,10 and R v Nguyen,11 the starting point should have been 18 months to two years’ imprisonment for the burglaries. She submitted that despite the value of the property obtained, the burglary should still fall within the lower end of the Arahanga scale.

[25]   Thirdly, Ms Chalmers advocated for a significant discount for Mr Dawson’s cooperation with the police. She submitted that by presenting at the police station and admitting to the offending, Mr Dawson significantly reduced the amount of effort and work which the police would have needed to complete in order to solve the crime. She submitted a discount of approximately 10-15 per cent for this factor alone would have been appropriate.

[26]   Fourthly, Ms Chalmers criticised the fact that the guilty plea discount was based on one set of the charges, and not on the total offending. She submitted the

9      Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [36].

10     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

11     R v Nguyen CA110/01, 2 July 2001.

more accurate way of calculating a guilty plea discount on the totality of the offending would be to base it upon the lead charges or to average it based on all of the charges. She submitted that Mr Dawson should have been entitled to an 18-20 per cent discount.

[27]   Ms Chalmers responsibly conceded that the Judge’s uplift of six months for the remaining offending was appropriate.

[28]   This would  mean  a  start  point  between  24-30  months’  imprisonment.  Ms Chalmers accepted that this in and of itself is not manifestly excessive.

[29]   Ms Chalmers then submitted that Mr Dawson should have been entitled to a discount of approximately 10-15 per cent for his significant cooperation with the police, and a further 5 per cent for his remorse and his offer to pay reparation. She submitted that Mr Dawson should have been entitled to an approximate discount of 18-20 per cent for his guilty pleas.

[30]   Taking into account the Moses v Rmethod,12 this would mean a minimum percentage discount of 33 per cent, resulting in an end sentence of 16-20 months’ imprisonment.

[31]   Ms Chalmers submitted that based on all the above factors, the sentence imposed by the Judge was manifestly excessive and asks this Court to quash that sentence and impose a sentence of 16-20 months’ imprisonment.

Respondent’s submissions

[32]   Mr Harvey, for the respondent, submitted that a starting point of two and a half years’ imprisonment on the two burglary charges was not manifestly excessive, and is consistent with the guidance set out by the Court of Appeal in Arahanga,13 and Nguyen.14

12     Moses v R [2020] NZCA 296.

13     Arahanga v R, above n 10.

14     R v Nguyen, above n 11.

[33]   Mr Harvey also rejected Ms Chalmers’ argument that the Judge essentially double counted the aggravating features of the burglary charges.

[34]   Mr Harvey submitted that a discount of 18-20 per cent was appropriate for Mr Dawson’s guilty pleas.

[35]   In respect of the discount given for cooperation, Mr Harvey said that as this is a little over 11 per cent of the three-year starting point, no amendment is necessary. In fact, he says, it may have been generous in the circumstances.

The starting point

[36]   The starting point of two and a half years’ imprisonment on the two burglary charges is not manifestly excessive, and is consistent with the guidance set out by the Court of Appeal in Arahanga:15

[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

[37]   In Nguyen the Court of Appeal stated that it is necessary for the Court to “consider the combination of factors surrounding the offending conduct” as follows:16

[17]      It is necessary in every case to assess the criminality of the particular offending. As we said in Mako, with reference to aggravated robbery, it is necessary to consider the combination of factors surrounding the offending conduct. In burglary cases, these include the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.

[18]      The range of circumstances in which the offence of burglary can be committed is such that no tariff can be fixed. Entry into private homes generally will have an emotional impact giving rise to a sense of violation and insecurity for the owners that may not arise in the case of commercial premises. The value of goods stolen from commercial premises may be higher.

15     Arahanga v R, above n 10.

16     R v Nguyen, above n 11.

[emphasis added]

Analogous cases

[38]   In Harraway v Police, the appellant appealed against a sentence imposed for a variety of offending, the most serious being one charge of burglary and unlawful possession of a firearm.17 The latter charge related to a .22 calibre rifle which was stolen during the burglary. A starting point of 30 months’ imprisonment was adopted for the burglary charge, which was dealt with globally alongside the firearms charge.18

[39]   The appellant had driven a stolen car from Dunedin to Waimate. There, he was involved in taking two further vehicles, before driving to another address where he took a .22 rifle and ammunition from a farm out-building. From there, he drove back to Dunedin.

[40]   Nation J noted that the offending was pre-meditated and that the property was targeted to obtain a firearm. His Honour also rejected the submission that the offending was significantly less serious because it was of an out-building rather than a dwelling:

[27] The Court of Appeal have said that burglary of a residence is a significant aggravating feature because of the heightened risk of confrontation with the occupants but I do not consider that, for that reason alone, the burglary of a farm out-building should be treated as significantly less serious. From the summary of facts, it would appear Mr Harraway entered the out- building during the day, so there must have been some risk that someone from that farm could have been in the vicinity. Farmers and the owners of other rural buildings are, in a sense, also especially vulnerable as far as burglaries are concerned. They do not normally have such buildings under constant surveillance and must rely on the general honesty of all members of the public and the respect which is normally afforded to their property. In that sense, any burglary of a farm out-building means the offender is taking advantage of a property owner who is particularly vulnerable to burglary and who has to trust everyone in the community to respect their property.

[41]   In Otter v Police, the High Court did not disturb a three-year starting point in respect of two charges of burglary and one charge of obstruction.19

17     Harraway v Police [2018] NZHC 761.

18     Following credits, the burglary attracted a sentence of 24 months’ imprisonment while the firearms charge resulted in 12 months imprisonment to be served concurrently.

19     Otter v Police [2015] NZHC 2857.

[42]   The appellant had worked for the victim as a labourer for about 10 years. The appellant was familiar with the layout of the victim’s property, including a work shed on the property which he had spent many hours working in. The property was semi-rural, and there were no neighbours close by. After a falling out between the appellant and the victim, the appellant planned to burgle the victim’s address. The appellant obtained walkie talkies and a scanner, and went to the address with an associate at night and cut a hole in the back of the shed to gain entry. With his knowledge of the shed, he went to the fuse box and turned off the power. He located two gun safe keys and removed rifles from the safes. He returned the next night and removed more property.

[43]   The appellant stole approximately 10 firearms and a large quantity of ammunition, as well as tools and hunting gear. The value of the property was between

$40,000 and $60,000.

[44]   On appeal, Hinton J held that the aggravating features were the gross breach of trust, and premeditated targeting of the property which he knew to contain firearms and items of significance to the victim beyond financial value. The large number of firearms was aggravating, as was the value of the property. There was damage to the property, and only six of the 10 firearms were recovered.

[45]Hinton J embarked on a comparison of analogous cases:

[16]      In Shierney v Police, three years six months was adopted as the starting point for a burglary of a garage of a residential property. The offender returned to the property several hours later. The owners were overseas. Rifles, ammunition, jewellery and electronic products were stolen. The value was not mentioned in the judgment. The starting point was upheld on appeal, although it was noted to be at the upper end of the available range.20 The factors in Shierney were similar to the offending here.

[17]      Mr Jefferson suggested Shierney could be distinguished because of the large number of prior burglary convictions on the part of Mr Shierney, but that is not a distinguishing feature as it is not relevant to the starting point. Mr Jefferson did seem to acknowledge that.

[18]      In Yukich v R, a starting point of 20 months' imprisonment was upheld on appeal, for the burglary of a rural farm house and shed. Eight shotguns,

20     Shierney v Police [2014] NZHC 2963 at [13] and [23].

three pistols, ammunition and other items were taken. It seems that there was no loss as the offenders were shortly afterwards apprehended by the police.21

[19]      In Miller v Police, the burglary was of commercial premises and three firearms were stolen to the value of $2,500. On appeal, Woodhouse J adopted a starting point of 15 months' imprisonment.22

[20]      In Yukich v Police (a different case to Yukich v R), a burglary of a residential property was involved. Seven firearms and two hunting knives were stolen. The offending was opportunistic, but the offender then disposed of the guns and refused to disclose to whom. A starting point of two years was adopted. On appeal, the Crown conceded that a starting point of 12 months' imprisonment was more appropriate.23 Lang J said, given the concession by the Crown the appeal must be allowed. The case is not helpful as there was no analysis on appeal of whether the starting point was appropriate.

[21]      In Wishnowsky v Police, a spree of seven burglaries of unoccupied residential homes involving the theft of firearms, electronics, jewellery and other property to the total value of $47,000, resulted in a starting point of three years six months' imprisonment. On appeal, that starting point was seen as stern but not unjustified.24

Comparison to the present case

[46]   The starting point of two and a half years in respect of the two burglary charges is not manifestly excessive. Considering both offences in the round, the aggravating features include:

(a)the offending was pre-meditated, particularly on the second entry to the property when he returned with a larger vehicle and an associate to assist him with the theft;

(b)the offending was determined, particularly in relation to the opening of the firearms safe which involved Mr Dawson using crowbars and a chainsaw in order to gain access;

(c)a semi-automatic .22 rifle and ammunition was taken during the offending, after the determined effort set out above;

21     Yukich v R [2010] NZCA 499.

22     Miller v Police [2012] NZHC 3237.

23     Yukich v Police HC Rotorua CRI-2008-463-90, 23 February 2009.

24     Wishnowsky v Police HC Palmerston North CRI-2009-454-26, 14 August 2009.

(d)Mr Dawson hid his appearance with a hood and wore gloves during the offending, and his associate wore a balaclava;

(e)the burglary was of a rural residential location, giving rise to a risk of an encounter with the occupants (as in Harraway, this is not substantially diminished by the targeting of an out-building); and

(f)the value of the property taken was substantial, totalling just under

$35,000 (and $9,219 of this remains outstanding).

[47]   I consider that the starting point adopted by the Judge for the two burglary charges was within an appropriate range. While the offending may not have targeted the firearm, a determined effort was required to take it, which included taking a chainsaw and crowbar to a gun safe. While only a single firearm may have been taken, it appears that this is a matter of good luck, rather than restraint on Mr Dawson’s part.

[48]   I reject Ms Chalmers’ argument that the Judge essentially double counted the aggravating features of the burglary charges. While he identified the specific aggravating features of both charges, he expressly arrived at a global starting point with reference to the totality of the offending.25

The discount calculations

[49]   I note that this appeal was filed before the decision of the Court of Appeal in Moses.26 I take into account the comments of the Court of Appeal in Zhang, which deal with retrospectivity. 27 The methodology for calculating any discounts against a sentence in this appeal should be based upon the guidelines contained within Moses.

Credit for guilty pleas

[50]   Ms Chalmers submitted that a discount of 18-20 per cent is appropriate for Mr Dawson’s guilty pleas. She submitted that while Mr Dawson only pleaded guilty eight days before trial, this was in reality an early plea in the context of the time

25     Police v Dawson, above n 1, at [12].

26     Moses v R, above n 12.

27     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [187]-[199].

required to finalise all of the charges. In particular, she noted Mr Dawson pleaded guilty to the burglary charges in May 2019.

[51]   The six month discount given by the Judge was a little over 18 per cent. Even accepting Ms Chalmers’ explanation of the time it took for Mr Dawson to plead guilty, and if I were minded to give a discount of 20 per cent, the adjustment sought would be little more than tinkering.

Credit for cooperation

[52]   The Judge allowed a discount of four months for Mr Dawson’s cooperation with the prosecution. This is a little over 11 per cent.

[53]   The extent of the cooperation was essentially Mr Dawson presenting at the police station. In particular, Ms Chalmers submitted that Mr Dawson had significantly reduced the amount of work which the police would have needed to complete in order to solve this crime.

[54]   I find that the four month discount was appropriate, and perhaps generous, in the circumstances. While I commend Mr Dawson for going to the police, I note he did not immediately admit to the offending in its entirety. For example, he denied having returned to the address for the second burglary, claiming that he was intoxicated at the time. The Judge rejected this explanation as unlikely.28 I also note that the sentence must reflect the entirety of the offending, including the remaining charges (unlawfully using a motor vehicle, common assault, and presenting a firearm).

[55]   In relation to a further discount for remorse, I find that the Judge was correct not to allow one. The Judge was clearly not persuaded by Mr Dawson’s explanation that he had gone to the wrong address intending to visit someone, or that he was under the influence of alcohol and could not remember returning to the address for the second burglary.29 I also note Mr Dawson has not expressed any remorse about the assault and firearms offending, and the victim’s statement records the serious impact the incident has had on her.

28     Police v Dawson, above n 1, at [11].

29 At [11].

[56]   In line with the above, I agree with the Judge’s conclusion that Mr Dawson did not demonstrate remorse, let alone exceptional remorse to warrant a discount.

Conclusion

[57]   The end sentence of two years and two months’ imprisonment was not manifestly excessive.

[58]   The three year global starting point was appropriate and reflected the serious nature of the offending, which involved repeated entries into a rural residential property, albeit a shed rather than a dwelling. A determined effort was made to steal a firearm, which involved using a chainsaw and a crowbar to break into a gun safe.

[59]   The Judge gave an appropriate discount for the guilty pleas. Although this is the one aspect of the sentence where I may have differed from the decision of the Judge and found a discount of 20 per cent may have been appropriate, this adjustment alone would amount to little more than tinkering.

[60]   The Judge gave an appropriate discount for the level of assistance rendered to the police. Given that Mr Dawson did not acknowledge his role in the second burglary, this discount was generous.

[61]It was appropriate for the Judge not to give a discount for remorse.

Result

[62]The appeal is dismissed.

Doogue J