Dodds v Police

[2020] NZHC 886

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-12

[2020] NZHC 886

BETWEEN

HANNAH ALICE DODDS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	28 April 2020
Appearances:	A McKenzie for Appellant (via audio-visual link) S Mallett for Respondent
Judgment:	4 May 2020

JUDGMENT OF MANDER J

This judgment was delivered by me on 4 May 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:     .

DODDS v NEW ZEALAND POLICE [2020] NZHC 886 [4 May 2020]

[1]    Ms Hannah Dodds pleaded guilty to charges of threatening to injure, intentional damage, one charge of failing to stop, and two charges of assaulting a police officer. She was sentenced by Judge Garland to 100 hours’ community work and nine months’ supervision. She was also ordered to pay $160 in reparation and disqualified from driving for six months.1

[2]    Ms Dodds appeals the sentence on the basis the Judge erred in imposing    100 hours’ community work for the sole purpose of general deterrence. She was not mentally well at the time of her offending and it is argued that this punitive element of her sentence was inappropriate.

Background

Threatening and wilful damage

[3]    On the night of 22 January 2019, Ms Dodds messaged her former partner multiple times threatening to “deal to” his new girlfriend, crash into his car, and take his dog unless he “handed over” his new girlfriend. Later Ms Dodds drove to her former partner’s address. She was observed approaching the front door and when it was closed to prevent her gaining entry Ms Dodds became aggressive. She ran towards the door, yelling that she would hurt the victim. She repeatedly yanked at the door in an attempt to open it before punching through and breaking the glass door.

Assault on police and failing to stop

[4]    On 21 April, whilst on bail for the previous offending, Ms Dodds was stopped in her vehicle. The police believed she was suicidal and sought to detain her under the Mental Health Act 1992. Ms Dodds reacted by reversing her vehicle into a police officer, striking him in the knee before then accelerating away. The officer suffered soreness, bruising to his knee and back problems which have taken some time to resolve.

[5]    When the police caught up with Ms Dodds they activated their lights and sirens in an effort to stop her. However, she continued on before abandoning her vehicle and

1      Police v Dodds [2020] NZDC 2238.

fled into bush at a nearby park. Another police officer located Ms Dodds and advised her she was under arrest. She reacted by striking this officer on the side of the head and resisted being handcuffed by kicking and struggling. The officer was left dazed and suffered from a headache that caused her to vomit.

District Court decision

[6]    In sentencing Ms Dodds, Judge Garland acknowledged that her ability to live safely in the community had largely been compromised by her poor mental health and other medical issues, and that her drug use was an additional burden. However, he noted that Ms Dodds had successfully completed sentences of supervision and community work as recently as 2018. The Judge rejected the submission that supervision alone would be adequate. He considered the assaults on police officers were a matter of concern for the community and should be met with a stern response to deter others.

[7]    Judge Garland noted the lead charges were those of assaulting a police officer that carried a maximum term of three  years’ imprisonment.  Taking  into account  Ms Dodds’ previous conviction for assault, and extending full credit for her guilty pleas, 50 hours’ community work was cumulatively imposed on the two lead charges. This was combined with nine months’ supervision for the threatening to injure charge. Special conditions were imposed that required Ms Dodds to attend and complete any recommended interventions for alcohol and drug use, and other programmes.

Approach to appeal

[8]    Appeals against sentence are permitted as of right and proceed by way of rehearing.2 An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal observed in Tutakangahau v R, “... [an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.4

2      Criminal Procedure Act 2011, s 244.

3      Criminal Procedure Act 2011, s 250(2) and (3).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

[9]    It is only appropriate for this Court to substitute its own views if the sentence is “manifestly excessive” and one that cannot be justified upon applying the relevant sentencing principles.5 Because the appellant must satisfy the appellate court that a different sentence should be imposed, the focus must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached.6

The appeal

The argument

[10]   On behalf of Ms Dodds, Mr McKenzie submitted that the imposition of 100 hours’ community work was contrary to principle and had resulted in an erroneous sentence. Counsel submitted that the Judge had only imposed the community work to meet a perceived need to give recognition to the principle of general deterrence. Mr McKenzie maintained that in the circumstances of this case such an approach was inappropriate for several reasons:

(a)The maximum penalty that attaches to a charge of assaulting police already carries a premium in recognition of the person who is the target of the assault. A stern response from the Court is therefore unnecessary; this essentially was a submission that the Court in imposing community work had effectively double-counted an aggravating feature that was intrinsic to the charge itself.

(b)Relying on Zhang v R, it was submitted that where the offender is troubled neither personal nor general deterrence has much relevance in the sentencing exercise.7 Drug addiction may cloud any appreciation of deterrence, so too does significant mental disturbance. Ms Dodds’ irrational actions were directly related to her mental condition at the time, and the principle of general deterrence did not logically bear on such irrational behaviour.

5      Ripia v R [2011] NZCA 101 at [15].

6      Skipper v R [2011] NZCA 250 at [28].

7      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

(c)The District Court’s approach implies a de facto minimum sentence of community work for any assaults on police officers as the Judge’s reasoning would be applicable to any charge of this type. This represents an error of principle.

[11]   Mr McKenzie submitted that when account is taken of Ms Dodds’ personal mitigating circumstances, the imposition of community work had resulted in a sentence that was manifestly excessively.

The response

[12]   After noting the maximum penalty for assaulting a police officer, Mr Mallett submitted that the offending was serious and that both officers suffered injuries or harm. When regard is had to the hierarchy of sentences, the imposition of community work could not be viewed as excessive. Mr Mallett accepted that Ms Dodds suffered from mental health difficulties but that this aspect had properly been taken into account by the sentencing Court. He submitted the sentence was not manifestly excessive because:

(a)Ms Dodds’ guilty plea must be accepted as an acknowledgment of her legal responsibility for the offences. Her mental state was a mitigating factor, however, Ms Dodds understood the nature and quality of her acts when she assaulted the officers.

(b)The pre-sentence report opined that Ms Dodds is “prone to using violence when she is in the presence of police”, and that she is “distrustful of authority, especially the police”. It is suggested she “remains vulnerable to resorting to violence primarily when confronted by police”. It was submitted that Ms Dodds’ anti-police attitude should not be solely attributed to her mental health difficulties and that she must bear responsibility for the consequences of her actions.

(c)The Judge was cognisant of Ms Dodds’ mental health issues and imposed a sentence that she was capable of completing, as she had done in the past.

[13]   Mr Mallet submitted that putting to one side the appropriateness of general deterrence in the instant case, the community work represented a proportionate sentence. However, for completeness, it was argued that the Judge’s reference to a stern response to offending against police officers was not an indication of double- counting but rather a recognition of the general need to denounce offending of this type. While individual deterrence may not be viewed as appropriate, wider considerations of general deterrence remained applicable.

Decision

[14]   There is no tariff for the offence of assault on a police officer, but anything more serious than minor assaults, such as pushing or spitting, can often result in a short term of imprisonment.8 Periods of one to three months’ imprisonment have been imposed for medium level assaults such as kicking and headbutting.9

[15]   The injuries sustained by the two police officers were not serious, but neither should they be considered minor. The second officer suffered a blow to the head (any injury to the head increases the risk of serious injury) and the first officer was effectively the victim of a vehicle that was used as a weapon. He required ongoing rehabilitation. Both police officers were assaulted whilst Ms Dodds was on bail from the earlier charges that arose from an incident that featured elements of violence.

[16]   In considering the aggravating and mitigating factors personal to Ms Dodds, the Court was entitled to take into account her previous conviction for assault. As noted, in large measure Ms Dodds’ violent conduct towards the police officers represented a continuation of her prior conduct towards her former partner and his female associate. However, Ms Dodds suffers from poor mental health. As observed by both the Judge and the pre-sentence report writer, Ms Dodds labours under a chronic “jigsaw” of mental problems and did so at the time of the offending.

8      Kumar v Police [2014] NZHC 1659 at [32] citing R v Taurere HC Whangarei CRI-2011-488-30, 7 July 2011.

9      Taurere, above n 8, citing Taiapa v R [2011] NZCA 48 (three months for assaulting a Police Officer); R v Chiyabi [2008] NZCA 10 (three months for headbutting a police officer); Cooper v Police HC Auckland CRI 2009-404-261, 16 November 2009 (one month’s imprisonment for kicking an officer in the chest and lower body); Rameka v Police HC Whangarei CRI 2010-488- 50, 3 December 2010 (150 hours’ community work for assault charge, no details given); Waata v Police HC Nelson AP10/02, 27 June 2002 ($400 fine for pushing a police officer).

[17]   All things being equal, a sentence of 100 hours of community work was unremarkable. This is illustrated by a brief review of sentences imposed for this type of conduct:

(a)Thompson v Police – resisting police and assaulting a police officer (attempted to knee in groin and spat at): sentenced to 65 hours’ community work.10

(b)Jailane v Police – unlawfully getting into a motor vehicle, assaulting a police officer (spat and kicked): sentenced to 12 months’ supervision and 150 hours’ community work.11

(c)Boggs v Police – intentionally obstructing a police officer and two charges of assaulting a police officer (attempted to kick one officer in the knee and kicked another officer in the forehead causing bruising but no medical attention required): sentenced to 9 months’ supervision and 300 hours’ community work.12

(d)Burchell v Police – assaulting a police officer (kneed in the groin): sentenced to 75 hours’ community work.13

(e)Clarke v Police – assaulting a police officer (spat): sentenced to 80 hours’ community work.14

[18]   Turning to Mr McKenzie’s central submission regarding identifiable error in the District Court’s approach, I accept Mr Mallett’s submission that there ordinarily will be a place for general deterrence where police officers are assaulted in the course of carrying out their duties. It is an approach that has commonly and appropriately been taken in cases of this type.15 Further, there is a foundation to suggest Ms Dodds,

10     Thompson v Police [2019] NZHC 3241.

11     Jailane v Police [2016] NZHC 2423.

12     Boggs v Police [2014] NZHC 123.

13     Burchell v Police [2010] BCL 545 (HC) (full judgment unpublished under Criminal Records (Clean Slate) Act 2004).

14     Clarke v Police [2015] NZHC 259.

15     Boggs v Police, above n 12, at [41]; Clarke, above n 14, at [57].

despite her mental health, has a general “anti-police attitude” that indicates she must take at least some personal responsibility for her conduct and that some element of deterrence remains a legitimate consideration. That said, Ms Dodds’ deteriorating mental health was the central reason for the police’s intervention and their efforts to detain her at the time the assaults occurred. That must bear on her level of culpability and brings into question the relevance of deterrence.

[19]   In Zhang, the Court of Appeal discussed the rationale behind the principles of both individual and general deterrence, albeit in the context of methamphetamine dealing. A distinction is to be drawn between individual rather than general deterrence where factors personal to the offender are in play. In responding to the submission that the increasing severity of punishment for methamphetamine offending is unlikely to reduce rates of that type of offending, it was observed that the issue of deterrence is more complex:16

... it is wrong to wholly detach deterrence from denunciation, accountability and community protection when responding to a crime as harmful as dealing in methamphetamine. That deterrence is in issue at all, given the gravity of the harm, is first and foremost a product of the enormous profitability of the methamphetamine trade. That cannot in itself be a reason to moderate sentencing. The contrary might reasonably be observed. Deterrence is also put in issue is where the offender is vulnerable, by reason (for instance) of addiction, mental health disability, economic deprivation, duress or undue influence. That consideration reduces the relevance of individual, rather than general, deterrence. It is not a consideration of general application, compelling moderation of sentencing in all cases. In the usual way, post- Taueki, it raises an issue for consideration after objective offending sentence starting points are considered (at stage one) when (at stage two) considerations personal to the offender are considered.

[20]   The personal circumstances of the offender may also undermine the relevance of general deterrence:17

... the principle of general deterrence is said to be based on a theory of “rational choice”. That is, that the offender may weigh up the pros (profit and pleasure) and cons (detection and punishment) in choosing whether or not to offend... But the principle of rational choice is less relevant, and general deterrence is less likely, where that rational choice is constrained by mental disorder (so that the choice may not be rational at all), addiction, poverty, duress or other supervening vulnerability...

16     Zhang v R, above n 7, at [90].

17 At [92].

[21]   It must be acknowledged that the Court of Appeal’s comments in Zhang specifically related to the approach to be taken by a sentencing court to methamphetamine-related offending. That is far removed from the type of offending with which this appeal is concerned. However, it is apparent that, whatever the type of offending, care is required when applying sentencing considerations such as deterrence in the circumstances of any particular case. In particular, where the offender has vulnerabilities that may bear on the criminal conduct for which the person is before the court. In such cases a question will arise as to whether it is appropriate to include a more punitive element to mark the need for deterrence, be it individual or general.

[22]   To the extent that the sentencing Judge’s comments in this instance, that offenders can expect a stern response from the Court to deter others from doing the same, could be interpreted as exhibiting a stock response that ignores the individual circumstances of the offender, I accept Mr McKenzie’s submission has merit. However, I do not consider such an interpretation reflects the approach actually taken by Judge Garland.

[23]   Ms Dodds’  mental  health  difficulties  were  taken  into  account.   While  Mr McKenzie may contest the need for any punitive element, I am satisfied the 100 hours’ community work represented an appropriately calibrated response. Notwithstanding the state of her mental health there remained a level of personal responsibility that Ms Dodds was required to accept for her conduct. To the extent that element of the sentence may have erroneously been justified by too great an emphasis on the need for deterrence, I do not consider that undermines the overall legitimacy of the sentence imposed.

[24]   As already noted, the appellate court’s focus will be on whether the ultimate sentence is beyond the legitimate range available to the sentencing Judge. Even where error is identified in the approach taken to the sentencing exercise, in the absence of convincing this Court that a different sentence should be imposed, the appeal will not succeed. In my assessment, appropriate allowance was made for Ms Dodds’ extenuating personal circumstances and that the sentence reflected the allowance to be made for her mental health difficulties.

Result

[25]For these reasons, the appeal is dismissed.

Solicitors:

Andrew John McKenzie, Barrister, Christchurch Crown Solicitors Office, Christchurch