Dugdale v The Queen
[2014] NZCA 248
•17 June 2014 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA93/2014 [2014] NZCA 248 |
| BETWEEN | ANDREW JOHN DUGDALE |
| AND | THE QUEEN |
| Hearing: | 28 May 2014 |
Court: | Miller, Ronald Young and Simon France JJ |
Counsel: | T Epati for Appellant |
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 with respect to both incidents.[2] An amended indictment was ultimately filed by the Crown which contained two counts of injuring with intent to cause grievous bodily harm;[3] and alternative counts of injuring with intent to injure.[4] Before trial Mr Dugdale pleaded guilty to the alternative counts of injuring with intent to injure. The Crown offered no evidence on the more serious counts. He also pleaded guilty to the assault on a police officer.
[2]Crimes Act 1961, s 188(1).
[3]Section 189(1).
[4]Section 189(2).
Prior to sentencing there was a dispute between the Crown and defence as to whether Mr Dugdale had been directly involved in the first assault by kicking the victim. Eventually the Crown accepted that Mr Dugdale had not kicked the victim but by his presence he was encouraging the others in what they had done.
The sentencing of Mr Dugdale’s co‑offenders is of significance in this case given the appeal grounds. Two of the three co‑offenders (Mr Sheridan and Mr Matthew Dugdale) were sentenced by a different Judge prior to Mr Dugdale.[5] Both sought and were given sentence indications.
[5]See R v Sheridan DC Gisborne CRI-2013-016-884, 7 November 2013 and R v [Matthew] Dugdale DC Napier CRI-2013-016-884, 22 November 2013.
Mr Sheridan, like Mr Dugdale, also pleaded guilty to two counts of injuring with intent to injure. A total starting point of four years’ imprisonment was adopted to reflect Mr Sheridan’s involvement in the offending. The Judge decided not to uplift the starting point for Mr Sheridan’s previous convictions, which included sentences of imprisonment for violent offending. The Judge concluded that at 23 years of age Mr Sheridan was still relatively young and any youth discount would be effectively cancelled out by any uplift for his previous convictions. The Judge gave a full discount of 25 per cent for Mr Sheridan’s guilty plea together with a further allowance of 7.5 per cent for remorse. The remorse consisted of a letter written to the Court advising that he was remorseful for his offending and that Mr Sheridan had reflected on what he had done while he had been awaiting sentence.
Mr Matthew Dugdale pleaded guilty to two counts of injuring with intent to injure with respect to the first incident, one count of wounding with intent to cause grievous bodily harm with respect to the second incident and one count of male assaults female. The Judge decided a starting point of five years and eight months’ imprisonment was appropriate.
Mr Matthew Dugdale has a long list of previous convictions and he has previously been imprisoned for violent offending. The Judge decided, however, not to uplift his start sentence for a “bad list of convictions” because at 23 years of age he was still relatively young and any uplift would be cancelled out by a discount for youth. The Judge accepted he was remorseful and applied a 7.5 per cent deduction for remorse. The remorse was evident from a letter to the Court and an expressed willingness to undertake a restorative justice process. A final sentence of three years and 11 months’ imprisonment was imposed.
In the District Court at the sentencing of the present appellant
Judge Adeane refused to give any discount from the start sentence apart from the guilty plea. The Judge said:[4] The matters are serious on any view of it and anyone participating needs to expect that that will be the Court’s view. Something has been made of Mr Dugdale’s youth, lack of previous convictions, and the fact that he may have been led along by other offenders. The short point, however, Mr Dugdale, is that these other offenders are well‑known to you, a brother and cousins. They enjoy a reputation which they have worked hard to acquire as “violent hell‑raisers” in this community. You knew perfectly well what you were getting into, you knew perfectly well the kind of activities which would be chosen for the evening’s entertainment, and that is exactly what followed.
[5] It may be that you are a bit younger, it may be that you have got fewer convictions, but you are charged as a party, and in fact you made yourself party to the activities of a group of conspicuous violently, irresponsible young men. Your share of responsibility may not be quite as high as theirs, but nevertheless you have a share which you must accept.
[6] So far as time spent on restrictive bail conditions is concerned, different Judges have different views. You have been ultimately convicted of the same charges with which you were originally brought before the Court. There is no question of lesser charges being promptly admitted. You have been on bail where you might have been in custody. In my view, given that your guilt has subsequently been established by your plea, it would be a curious system that allowed you credit for some restrictions when you were given liberty at a time when otherwise, if you had earlier admitted your offending, you would not have been at liberty at all.
Appellant’s submissions
Mr Dugdale submits that the Judge was wrong to reject discounts for remorse, youth, concerted rehabilitative steps and restrictive bail conditions. Mr Dugdale’s two co‑offenders were given discounts for both genuine remorse and youth. Mr Dugdale was younger than either of the two co‑offenders and had also shown genuine remorse.
Counsel submitted that Mr Dugdale had illustrated a very real effort to change his life following the offending. He had obtained and maintained full‑time employment. His employer spoke highly of him.
As to restrictive bail conditions, Mr Dugdale was originally released on bail on 16 April 2013. He was bailed to an isolated rural address two hours from Gisborne. From that date until 22 November 2013 bail conditions required him to comply with a curfew outside of his work hours, to not associate with his co‑defendants, to not consume alcohol and allowed him only very limited rights of travel to Gisborne. Between November 2013 and sentencing in February 2014, his curfew was lifted.
Discussion
Remorse
We accept that Mr Dugdale is entitled to have a sense of injustice about the way in which the sentencing Judge refused to take into account his expressions of remorse and his youth compared with his co‑offenders.
As to remorse, Mr Dugdale offered and then later wrote letters of apology to each of the victims. He said he was interested in taking part in a restorative justice process. The probation officer noted that after discussing what Mr Dugdale could have done to prevent the offending, he was satisfied Mr Dugdale had shown genuine remorse. There was every reason, therefore, to accept that Mr Dugdale was remorseful. The Crown acknowledges this is a case where a discount for remorse might have been given.
In the circumstances we consider the Judge was wrong not to give Mr Dugdale some discount from his starting sentence for remorse.
Youth
Both Mr Sheridan and Mr Matthew Dugdale were more than two years older than Mr Dugdale, both being 23 years of age when the offending occurred. A discount for youth was somewhat surprising given their age and their long history of offending. Mr Dugdale turned 21 years of age five weeks before the offending. He had four previous convictions, none serious. That was significantly fewer than his co‑offenders. Given the discount afforded to his co‑offenders for youth, in the circumstances, we consider some modest discount for Mr Dugdale’s relative youth was appropriate.
Concerted rehabilitative steps
We accept that Mr Dugdale is to be commended for the effort he made in obtaining and keeping employment during his remand but we do not think a further discount from his start sentence is justified for this.
Bail
We accept that a seven month curfew together with other restrictive bail conditions lasting 10 months could also justify a modest reduction in sentence.
The Judge rejected a deduction for restrictive bail conditions based in part on the proposition that Mr Dugdale had ultimately pleaded guilty to the same charges that were originally brought before the Court. That claim is not correct. Mr Dugdale faced far more serious charges when he was initially brought before the Court and ultimately pleaded guilty to significantly less serious charges.
Further, the Judge said:[6]
it would be a curious system that allowed you credit for some restrictions when you were given liberty at a time when otherwise, if you had earlier admitted your offending, you would not have been at liberty at all.
[6]At [6].
We do not accept that analysis. If Mr Dugdale had initially been remanded in custody before his plea, then the period he had spent in custody would be taken into account in the calculation of the total time he was required to spend in custody.
Overall we are satisfied that a further 10 per cent deduction from his start sentence for remorse, youth and restrictive bail conditions adequately reflects Mr Dugdale’s position and recognises the importance of treating co‑offenders similarly where the facts justify such an approach.
The starting sentence for Mr Dugdale was three years’ imprisonment. That is not challenged. A 10 per cent deduction is (erring in Mr Dugdale’s favour) a four month reduction to 32 months’ imprisonment. Applying the 25 per cent deduction for his guilty plea, that leaves a final sentence of two years’ imprisonment. That means Mr Dugdale is eligible to be considered for home detention.
Counsel for Mr Dugdale urged us to impose a sentence of home detention. She submitted the following factors were relevant to such a decision:
(a)there had been no breach of bail during the 10 months Mr Dugdale had been on bail;
(b)Mr Dugdale had obtained and maintained employment;
(c)a home detention address was available with Mr Dugdale’s mother;
(d)Mr Dugdale had made efforts to distance himself from his co‑offenders; and
(e)Mr Dugdale had only one previous offence of violence which appeared to have been relatively minor.
We are not prepared to grant Mr Dugdale home detention. The two year sentence of imprisonment is at the top end of sentences that can be considered for home detention. This counts against granting home detention.
We consider the start sentences for Messrs Dugdale, Matthew Dugdale and Sheridan were right at the bottom of the range of sentences for this offending. While Mr Dugdale’s involvement, particularly in the first incident, may have been less than some of his co‑offenders, all four offenders participated in two violent attacks without the slightest provocation. Both involved serious injury with kicking or punching victims in the head when they were on the ground. In the second incident Mr Dugdale acknowledges kicking the victim while he was lying on the ground. We are satisfied the seriousness of the offending would not be reflected in a sentence of home detention.
Result
In summary, we are satisfied that the Judge was wrong to refuse discounts for remorse, youth (in the particular circumstances) and bail. A further 10 per cent deduction for those mitigating factors is therefore given. To that extent the appeal is allowed. The sentence of two years, three months’ imprisonment is quashed and instead a sentence of two years’ imprisonment is imposed. We do not consider this is an appropriate case for the imposition of home detention.
Solicitors:
Crown Law Office, Wellington