Dugdale v The Queen - [2014] NZCA 248

IN THE COURT OF APPEAL OF NEW ZEALAND

CA93/2014
[2014] NZCA 248

BETWEEN	ANDREW JOHN DUGDALE Appellant
AND	THE QUEEN Respondent

Hearing:	28 May 2014
Court:	Miller, Ronald Young and Simon France JJ
Counsel:	T Epati for Appellant M J Lillico for Respondent
Judgment:	17 June 2014 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of two years, three months’ imprisonment is quashed and a sentence of two years’ imprisonment is imposed concurrently on both charges of injuring with intent to injure.

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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

Mr Dugdale was sentenced to two years and three months’ imprisonment by Judge Adeane in the Gisborne District Court after he pleaded guilty to two counts of injuring with intent and assaulting a police officer.[1] In this appeal Mr Dugdale submits that the Judge wrongly refused to discount the starting sentence for his remorse, his youth, the concerted rehabilitative efforts he made after he was charged and his restrictive bail conditions. He complains that less deserving co‑offenders were given discounts for some or all of these factors but he was given no such discount.

Background facts

[1]R v Dugdale DC Gisborne CRI-2013-016-884, 19 February 2014. In the interests of clarity, this decision will refer to the appellant as Mr Dugdale, and to his brother as Mr Matthew Dugdale.

Mr Dugdale was driving a car in Gisborne on the evening of 12 April 2013 with three passengers: his older brother Matthew, Jordan Hall and Murray Sheridan. Mr Dugdale stopped the vehicle near a man who was walking on foot in central Gisborne. Two of those in the car jumped out and immediately attacked the man, kicking him in the head and the upper body. The victim had a metal plate in his skull from a previous incident and so was particularly conscious of protecting his head during the assault. Mr Dugdale left the car and stood near where the others were assaulting the victim. The victim suffered injuries to his arm (including a broken wrist), back and shoulder, as well as to his jaw and cheekbone.
The second incident occurred later that same evening. One of the four offenders, Mr Hall, attacked a patron in a bar. A security guard grabbed Mr Hall and attempted to eject him from the bar. The other offenders intervened and knocked the security guard to the ground. For his part, Mr Dugdale acknowledges he then kicked the security guard’s body twice while he was on the ground. Others in the group launched a further more serious attack including kicking the security guard in the head. Later, Mr Matthew Dugdale stomped and kicked the security guard on the head while wearing steel-capped boots. The security guard suffered serious injuries requiring skull reconstruction and was hospitalised. When Mr Dugdale was arrested by the police he kicked a constable on his left leg.
Initially Mr Dugdale was charged with wounding with intent to cause grievous bodily harm…

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 Dugdale v The Queen

Details

AGLC: Dugdale v The Queen [2014] NZCA 248
Case: [2014] NZCA 248
Decision Date: 17 June 2014 at 10.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Dugdale v The Queen involved Andrew John Dugdale, the appellant, appealing against his sentence, with the Crown being the respondent. The appellant was sentenced to two years and three months’ imprisonment by Judge Adeane in the Gisborne District Court, following his guilty pleas to two counts of injuring with intent and assaulting a police officer. The appellant argued that the sentencing judge wrongly refused to discount the starting sentence for his remorse, youth, rehabilitative efforts after being charged, and his restrictive bail conditions. The appeal court was required to decide whether the appellant's arguments were valid and if the sentence was appropriate.

The court found that the sentencing judge was wrong to reject discounts for remorse, youth, and restrictive bail conditions. The appellant had shown genuine remorse through letters of apology to the victims and expressed interest in a restorative justice process. The probation officer also noted that the appellant had shown genuine remorse. The court accepted that the appellant was entitled to a discount for remorse, as well as a modest discount for his relative youth, as he was younger than his co-offenders and had fewer previous convictions. Furthermore, the court found that the appellant's restrictive bail conditions could justify a modest reduction in sentence. The court allowed the appeal against sentence to the extent that a further 10% deduction for those mitigating factors was given. The sentence of two years, three months’ imprisonment was quashed, and a sentence of two years’ imprisonment was imposed concurrently on both charges of injuring with intent to injure.

The final orders of the court were as follows: The appeal against sentence is allowed. The sentence of two years, three months’ imprisonment is quashed and a sentence of two years’ imprisonment is imposed concurrently on both charges of injuring with intent to injure.

Orders