Dodd v R - [2013] NZCA 138

IN THE COURT OF APPEAL OF NEW ZEALAND

CA570/2012
[2013] NZCA 138

BETWEEN NICKY BRIAN DODD
Appellant

AND THE QUEEN
Respondent

Hearing: 17 April 2013

Court: Harrison, Allan and Clifford JJ

Counsel: H D M Lawry for Appellant
J E Mildenhall for Respondent

Judgment: 7 May 2013 at 10.15 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Following his pleas of guilty, Nicky Dodd was sentenced in the High Court at Whangarei to a total of seven years imprisonment on conviction for charges of methamphetamine dealing, conspiracy to supply a precursor substance, conspiracy to supply cannabis, cannabis cultivation and robbery.[1] He appeals on the ground that the sentence was manifestly excessive.

Background

[1] R v Dodd [2012] NZHC 2146.

Mr Dodd’s offending fell into two distinct categories. He committed the discrete offence of robbery in August 2009. Mr Dodd had asked a Boyd Norgrove to come to his house to carry out some repairs on a motorbike. Mr Norgrove drove there in a Holden motor vehicle which he had recently sold. While Mr Norgrove was carrying out the repair work in Mr Dodd’s garage, a Samuel Edwards arrived at Mr Dodd’s house. He apparently held a grievance against Mr Norgrove. Mr Edwards met Mr Dodd before the two of them went to the garage. Mr Dodd closed the door behind him and then Mr Edwards started punching Mr Norgrove around the head. There was no suggestion that Mr Dodd participated directly in this violence.
Mr Dodd then directed Mr Norgrove to give him the keys to the Holden car and also to a BMW car which was at Mr Norgrove’s address. Mr Dodd must have accepted, for the purposes of his later plea, that Mr Norgrove complied with the direction under a threat of further violence. On Mr Dodd’s instructions, a third party drove Messrs Edwards and Norgrove to the latter’s home in his Holden. The third party drove away from there in the Holden, taking also some car wheels; Mr Edwards drove off in the BMW. The police later apprehended Mr Dodd in the stolen Holden.
Mr Dodd was charged with aggravated robbery. On 14 November 2011, the day his trial was due to commence in the District Court, the Crown accepted Mr Dodd’s offer to plead guilty to an amended charge of robbery. Mr Edwards pleaded guilty to one charge of wounding with intent to injure. On 18 November 2011 he was sentenced to a term of two years and ten months imprisonment.
Mr Dodd’s drug offending occurred around the same time. The police had undertaken a covert investigation into the activities of a motorcycle gang which was involved in methamphetamine offending in Northland. In accordance with a warrant issued in the High Court, the police intercepted text messages and audio communications passing between a number of people. Messages sent from and to his cell phone revealed Mr Dodd’s participation in drug dealing between July and September…

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 Dodd v R

Details

AGLC: Dodd v R [2013] NZCA 138
Case: [2013] NZCA 138
Decision Date: 7 May 2013

CaseChat Overview and Summary

Nicky Brian Dodd appealed against his sentence of seven years' imprisonment imposed following his guilty pleas to drug dealing, conspiracy to supply precursor substances, conspiracy to supply cannabis, cannabis cultivation, and robbery. The court of appeal dismissed the appeal, finding that the sentence was not manifestly excessive. The appellant's counsel submitted that the sentence was manifestly excessive and that the sentence for drug offending should not have exceeded four years' imprisonment, and the uplift on account of the robbery charge should not have exceeded one year. The court held that the appellant's offending on the supplying and offering to supply charges took him well over the three-year threshold for eligibility for sentencing under Fatu's band two, justifying a starting point of four and a half years' imprisonment. The court also held that the sentence imposed on the appellant for the robbery charge was not manifestly excessive. The court held that the cumulative figure of eight years and one month imprisonment for the appellant's offending could not be faulted, and the Judge's reduction on account of the totality principle was unremarkable. The court held that the result of seven years imprisonment was at the lower end of the available range. The appeal was dismissed accordingly.

Orders