Dockerty v Police - [2012] NZHC 2500

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2012-442-17 [2012] NZHC 2500

BETWEEN DWAYNE JONATHAN DOCKERTY Appellant

ANDPOLICE Respondent

Hearing: 25 September 2012

Counsel: R W Ord for Appellant
M A O'Donoghue for Respondent

Judgment: 26 September 2012

JUDGMENT OF THE HON JUSTICE KÓS

[1] Dwayne Dockerty was sentenced to 12 months’ imprisonment by a District Court Judge for three assaults. The first was on his partner. He placed her in a headlock, pushed her over, dragged her from her car, and threw her to the ground. The trial Judge rejected Mr Dockerty’s evidence that the headlock was in fact a cuddle. The Judge described that evidence as “ludicrous in the extreme”. Shortly afterwards Mr Dockerty was stopped by a police patrol car. He was arrested and placed in the car to be transported to the police station. He then spat at one of the police constable’s face and head on several occasions. In the back yard of the Nelson police station he bit a sergeant on the arm. The explanation offered was that he was grossly intoxicated, having drunk a lot of bourbon.

[2] Mr Dockerty has numerous convictions for violence: 13 previous convictions for assaulting the police, six previous convictions for resisting the police, four previous convictions for male assaults female, one previous conviction for assault
with intent to injure, one previous conviction of assaulting a person with a firearm or

DOCKERTY v POLICE HC NEL CRI 2012-442-17 [26 September 2012]

airgun, one previous conviction for assaulting a person with a blunt instrument and three previous convictions for common assault.

District Court decision

[3] Mr Dockerty defended the charge of male assaults female, but pleaded guilty to two charges of assaulting police officers. As I have said, the trial Judge rejected the defence offered in the male assaults female charge, and convicted Mr Dockerty.

[4] On 30 July 2012 a different District Court Judge sentenced Mr Dockerty on all three charges to 12 months’ imprisonment (12 months on the male assaults female charge and concurrent terms of three months for each of the police assault charges). Taking the offending together, as it was all connected, the Judge applied a starting point of nine months, applied an uplift of six months for Mr Dockerty’s significant history of violence, and then gave a credit of three months in respect of the guilty pleas to the police assaults (an overall credit of 20 per cent).

Appeal

[5] Mr Dockerty now appeals on the basis that the sentence is manifestly excessive.

[6] For Mr Dockerty, Mr Rob Ord submits that the male against female offending did not warrant a starting point of nine months’ imprisonment. The District Court Judge had viewed the assaults on the police as more serious than the male assaults female. It was more “a scuffle”, in which evidence of harm was said to be completely lacking. Mr Ord submitted that the following concurrent sentence would have been fair: a starting point of three months for the…

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.

Continue reading Dockerty v Police

Details

AGLC: Dockerty v Police [2012] NZHC 2500
Case: [2012] NZHC 2500
Decision Date: 26 September 2012

CaseChat Overview and Summary

Dwayne Jonathan Dockerty has appealed against his sentence for multiple assault charges, arguing that the sentence of 12 months' imprisonment was manifestly excessive. Dockerty had been sentenced for assaulting his partner, spitting at and biting police officers. The District Court Judge had applied a starting point of nine months' imprisonment, increased the sentence by six months due to Dockerty's significant history of violence, and reduced it by three months for guilty pleas on the police assault charges. The Hon Justice Kós found that the starting point of nine months was appropriate given the nature of the offences and Dockerty's criminal history. The court did not find it appropriate to reduce the sentence further, as the appellant had received a greater credit than was justified for his guilty pleas. The appeal was dismissed, and the original sentence upheld.

Orders