Dodds v The Queen

[2016] NZHC 3003

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000339 [2016] NZHC 3003

BETWEEN

ETHAN DANE DODDS

Appellant

AND

THE QUEEN Respondent

Hearing:	12 December 2016
Counsel:	J W Mackey for Appellant P J L Arnold for Respondent
Judgment:	12 December 2016

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 12 December 2016 at 4 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

J W Mackey, Auckland.

Meredith Connell, Auckland.

DODDS v THE QUEEN [2016] NZHC 3003 [12 December 2016]

The issue

[1]      This is a sentence appeal against a term of three years and five months’ imprisonment in relation to a variety of charges: burglary, injuring with intent to injure, assault with a weapon, assault with intent to rob, unlawfully getting into a motor vehicle, and possession of utensils.1    The offences were committed over two incidents, 12 days apart.  The primary issue is the availability of the global starting point adopted at first instance.

Background

[2]      On 16 March 2016 the appellant went to a motel unit to steal property from its occupant.   He did not know the victim, who hid in the bathroom when the appellant knocked on the door. The appellant then knocked on the bathroom window before kicking in the front door pane to gain entry.  Once inside, he grabbed a large fan and threw it at the victim.   The victim picked up a shard of glass to defend herself and struck out at the appellant, wounding him on the arm.   The appellant responded by punching her twice to the face.  The appellant then stole the victim’s handbag in which was her passport, international driver’s licence, a Rolex watch, jewellery and other personal items.

[3]      The victim suffered facial fractures and swelling and bruising to her left eye. She required surgery for the injury to her hand (sustained when she picked up the piece of glass).  I understand her property was not recovered.  It was worth almost

$37,000.

[4]      The appellant suffered injury to his leg when he kicked in the front door. When found by the Police, he had a methamphetamine pipe on him (the possession of utensils charge).

[5]      On  28  March  2016  the  appellant  went  to  a  superette.    He  was  still  on crutches.  The appellant asked the store attendant for directions, and when the victim offered to help, the appellant produced a piece of paper and a pocket knife.   The

appellant pointed the knife at the victim.  He demanded money.  The victim began

1      R v Dodds [2016] NZDC 18318.

shouting.   The appellant  attempted to take the cash register, but abandoned the robbery when the victim picked up a stick.  The appellant fled in a waiting car which had been stolen the day before (the unlawfully entering a car charge).   He was

17 years old.

[6]      Judge Tremewan adopted a starting point of three years for the  burglary charge in relation to the motel, which Her Honour uplifted by a year for the other offending in connection with that incident.  In relation to the robbery on 28 March, the Judge considered a four year starting point would have been appropriate for that offending in isolation.  But having regard to the totality principle, the Judge settled on a global six year starting point.

[7]      The Judge afforded the appellant a discount of 25 percent for his youth, rehabilitative efforts (while in custody), and in recognition of diminished culpability vis-à-vis foetal alcohol spectrum disorder (FASD).  The Judge afforded an additional

25 percent discount for the appellant’s guilty pleas.  As observed, the final sentence was three years and five months’ imprisonment.

The appellant’s case

[8]      For the appellant, Mr Mackey submitted the 16 March offending ought not to

have attracted a starting point of more than two years’ imprisonment; so too the

28 March robbery.   It followed the overall starting point was much too high.  The appellant also submitted the Judge gave inadequate discounts for mitigating features, and placed undue weight on the appellant’s Youth Court record.   Mr Mackey submitted the appellant ought to have been treated as a first offender.

Analysis

[9]      The starting point for the first set of offences is unassailable, however one approaches it.  A single residential burglary can attract a starting point of between

18 months’ and two and a half years’ imprisonment.2  While a motel unit may engage

a slightly lesser expectation of privacy than a home and so a slightly lesser starting

point, the appellant’s violent entry to the premises and related violence against the

victim made this a bad instance of burglary calling for a much higher starting point.

[10]     Analysed as an offence of violence, the case easily falls within band two of Nuku v R,3 for which starting points of up to three years’ imprisonment are appropriate.   And it may well fall within band four of that case, which permits starting points up to the statutory maximum.  The offending was premeditated, the victim suffered serious injury, and the assault involved an attack to the head.  As a lone  female,  the  victim  was  vulnerable.    Presumably that  is  why the  appellant

targeted her. And, there was a home invasion element.

[11]     So,  whether  considered  as  a  burglary  aggravated  by  serious  violence  or violent offending aggravated by burglary, a four year starting point was easily reached; both aspects of the offending had to be considered.

[12]     In relation to the robbery on 28 March, Mako v R observes:4

A further  example  can  be  given  taking another  combination  of  features typical of many aggravated robberies.  This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway.   The shopkeeper is confronted by one person with face covered. There is no actual violence.  A small sum of money is taken.  The starting point should be around four years.   Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.

[13]     This offending came hard on the heels of the first set.  The appellant was also on bail for those offences.  But his face was not covered, and he posed much less of a threat than would otherwise be the case by a knife-wielder—because he was on crutches.  Nothing was taken (albeit because the victim resisted).  For these reasons, I consider the correct starting point for this offending ought not to have been greater than three years and three months’ imprisonment.

[14]     The Judge adopted a global starting point of six years’ imprisonment.  For the Crown, Mr Arnold defended this figure on the basis that even if the starting point for the 28 March offending was too high, overall, six years’ imprisonment was not.  He submitted the 16 March starting point was well within range, and so any later excess was evened out. As observed earlier, the 16 March starting point is unassailable, but that adopted for the later offending is a little severe.  Having regard to the totality principle, I consider the overall starting point should not have exceeded five and a half years’ imprisonment.

[15]     The  Judge  adopted  a  25  percent  discount  for  the  appellant’s  youth, rehabilitative efforts and FASD.  I am not persuaded the appellant ought to have been afforded anything other than modest discount for his youth, assuming any discount was  appropriate.    Significant  discounts  can,  of  course,  be  given  for this  factor. However, it depends on the circumstances of the offence, the role of the offender,

and prospects of reform.  Or, as the Court of Appeal observed in Mako:5

Youth and the prospects of rehabilitation may be mitigating factors. Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences.  As noted in the  judgment  of  the  Full  Court  of  the  High  Court  in  Cooper  a  high proportion of aggravated robberies in this country are committed by teenagers.  In some cases young offenders may have been directed by others who  are  older.    It  would  only encourage  that  practice  to  impose  lower sentences unless there are real prospects of rehabilitation and unlikelihood of reoffending.

However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both  to  the  offender  and  society  in  a  significantly  reduced  sentence. Whether this is so in a particular case requires a realistic assessment which gives  proper  weight  to  the  fact  that  aggravated  robbery  even  when committed by an immature offender, remains serious violent offending.

[16]     Here, the Judge was troubled by the appellant’s youth record.  Mr Mackey’s

submission undue weight was given to this is unsustainable:

(a)      The appellant has 32 Youth Court notations.

5      Mako v R, above n 4, at [65]–[66].

(b)These include notations for aggravated robbery, assault with intent to rob, assault (x 4), and burglary (x 3).

[17]     So too the startling proposition the appellant should have been treated as a first offender.  In R v Ross,6  the Court of Appeal confirmed Youth Court notations may be taken into account in assessing the level of youth discount.   And, unsurprisingly, that Court has confirmed youth history is relevant to sentencing.7

The appellant’s Youth Court history precluded any significant discount.

[18]     Now foetal alcohol spectrum disorder.   It is common ground the appellant suffers FASD.  Dr Valerie McGinn, an expert in this area, considers there is a link between the appellant’s offending and the condition, albeit FASD does not excuse criminality.  But Dr McGinn also considers the appellant “is at high risk of behaving inappropriately  in  entering  the  revolving  door  of  the  justice  system”.    I  infer Dr McGinn means the appellant has a high risk of committing further offences which will require the Courts’ attention.  Consequently, the appellant’s condition is the very type that trouble Courts.  On the one hand, it diminishes his culpability because it affects self-regulation and hinders judgment.  But on the other, it heightens the risk of re-offending, in turn giving rise to an issue of public protection.

[19]     I am not persuaded the Judge erred in affording a 25 percent discount for FASD,  youth  and  rehabilitative  efforts.    The  last  is  highly  discretionary  as  a mitigating factor.8   The second warranted little if any relief.  It follows much of the discount must have been directed at FASD which, as observed, presented the Judge with an all too common sentencing dilemma.  I detect no reversible error here.

[20]     The Judge afforded the appellant 25 percent discount for his pleas of guilty on the basis they were entered at the first available opportunity.  Applying the same discounts to what ought to have been the starting point produces a sentence of three

years and one month’s imprisonment.

6      R v Ross [2013] NZCA 263.

7      Geros v R [2011] NZCA 122 at [16].

8      Sharma v R [2015] NZCA 486 at [24].

[21]     Appeal Courts have repeatedly said they will not “tinker” with sentences. This admonition reflects the discretion inherent to sentencing.   A four month deduction is not tinkering, at least when the appellant is young.

[22]   The appeal is allowed.   The sentence of three years and five months’ imprisonment is quashed.  A sentence of three years and one month’s imprisonment is substituted on the charges of burglary, injuring with intent, assault with a weapon and assault with intent to rob.  The concurrent terms in relation to the other charges remain unchanged.

……………………………..

Downs J