Dunlea v Police

[2020] NZHC 984

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000008

[2020] NZHC 984

BETWEEN

MICHAEL JOSEPH DUNLEA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 May 2020
Appearances:	S A Saunderson-Warner for Appellant R D Smith for Respondent
Judgment:	13 May 2020

JUDGMENT OF GENDALL J

This judgment was delivered by me on 13 May 2020 at 2:15 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DUNLEA v NEW ZEALAND POLICE [2020] NZHC 984 [13 May 2020]

Introduction

[1]    This is an appeal against sentence. The appellant, Mr Dunlea, was sentenced in the District Court at Dunedin on 11 March 2020  to 29 months’ imprisonment  (two years and five months) on a range of charges: charges of threatening to do grievous bodily harm (x 2), assault with a weapon, unlawfully taking a motor vehicle, possession of an offensive weapon, theft and wilful damage. Mr Dunlea appeals that sentence.

Facts

[2]    On 13 November 2019 Mr Dunlea, who was employed at the time as a farm manager, arrived at an address in Clydevale to speak to a work colleague, one of the victims in this matter, who will be referred to as Mr R.1 Mr Dunlea was intoxicated and asked where his partner was. He then left that address in his partner’s vehicle and drove to his home address.

[3]    Mr Dunlea’s partner had taken one of her children to a neighbours’ house for fear Mr Dunlea would come home intoxicated and cause an incident. Mr R had driven to the address out of concern for what Mr Dunlea might do next. An argument ensued. Mr R was able to overpower Mr Dunlea and hold him to the ground, in an attempt to keep him calm.

[4]    Mr Dunlea asked where the children were. When told they were inside he said, “get them out here before I kill the lot of them”. He went inside, woke the children, and put them in his partner’s vehicle. A short time later he drove to the neighbours’ house looking for his partner.

[5]    At the neighbours’ house Mr Dunlea knocked on the door and shouted obscenities to the Philippino occupants. The words used were both racist and obscene. Mr R had followed Mr Dunlea to the house. Mr Dunlea confronted him and then punched him twice with two blows connecting with Mr R’s face.

1      The redacted names in this memo are consistent with the District Court decision.

[6]    The District Court judgment records Mr Dunlea then retrieved an empty beer bottle from his partner’s vehicle, smashed the bottom half on a fence and approached Mr R. He held the bottle about one centimetre from Mr R’s stomach and said, “you’ve got one chance to tell the truth or I’m going to fucken stab you”. He then turned to his partner and said, “have you ever seen anyone be stabbed before?” He raised the bottle to Mr R’s face, then ran the sharp end down his chest and said, “I’m just going to give you a wee mark.”

[7]    Mr Dunlea threw the bottle at Mr R’s vehicle, cracking the windscreen. He kicked the front driver’s sidelight, causing it to break.  Mr R confronted him, and   Mr Dunlea punched him in the face cutting his eyebrow. He then smashed the side mirror of Mr R’s vehicle and attempted to kick Mr R numerous times. No blows connected. Mr Dunlea was wearing steel cap boots.

[8]    Mr Dunlea’s employers arrived and police were called. Mr Dunlea drove away in Mr R’s vehicle with three of his partner’s children. He travelled to Mr R’s address.

[9]    Mr Dunlea entered the garage at Mr R’s address, attempting to take a motor- cross bike that he had partial ownership of. Mr R’s 16 year old son, the second victim, came out. Mr Dunlea stood inches from him and said, “if you don’t stay inside I’ll smash your face in.” Fearing for his safety, Mr R’s son locked the door, went into his bedroom and escaped via the window, running across a paddock to a neighbouring property.

[10]   When Mr R arrived back at the house, Mr Dunlea threatened him. Attempting to de-escalate the situation Mr R walked away from his address.  Mr Dunlea took  Mr R’s vehicle and went to his own home.

[11]   Mr Dunlea took Mr R’s cell phone and wallet containing $35 cash. There was significant damage to the interior and exterior of Mr R’s motor vehicle.

[12]   Police arrived at Mr Dunlea’s address. Mr Dunlea approached the attending officer welding a metal bar. He continued to threaten the officer while police back up

was called. Mr Dunlea piled children’s toys and his partner’s property at the front of the property then set it alight. He also attempted to set Mr R’s vehicle alight.

[13]   Mr R suffered a cut to his right eye and a small scratch to his stomach. In explanation of his conduct Mr Dunlea stated that “people should just not upset me, they know what happens when I get rowdy.”

District Court decision

[14]   In his District Court decision Judge Large considered the assault with a weapon and threatening to do grievous bodily harm (GBH) to Mr R to be the lead offending.2 The Judge adopted a starting sentence of two years’ imprisonment. He then uplifted this sentence by three months for the second threat to do GBH, three months for unlawful taking of the motor vehicle, and a further one month in respect of each of the other three charges. This brought the starting sentence to one of two years and nine months’ imprisonment.

[15]   Judge Large applied a three month uplift to reflect Mr Dunlea’s previous offending. He then applied a seven month discount for guilty pleas. This brought the end sentence to 29 months’ imprisonment (two years and five months). The Judge considered it was up to the Parole Board to set the terms of Mr Dunlea’s release.

Principles on appeal

[16]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. A n appeal against sentence may only be allowed by this Court if it is satisfied that 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 mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence

2      Police v Dunlea [2020] NZDC 4802.

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

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

being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5

Submissions

Appellant’s submissions

[17]   Ms Saunderson-Warner, counsel for Mr Dunlea, submits the sentence is manifestly excessive due to insufficient credit for mitigating factors being applied. Further, Ms Saunderson-Warner contends Judge Large miscalculated the credit for guilty plea. No issue is taken with the starting point adopted.

[18]   She refers to the appellant’s personal mitigating factors here relating to addiction, childhood deprivation and mental health. Specifically Ms Saunderson- Warner notes: Mr Dunlea was overwhelmed by work pressures; had been contacted by his de facto stepfather who regularly beat him as a child; was subject to regular violence as a child and witnessed his sister nearly being killed; his father was chronically ill; he acknowledges he has a drinking problem; is willing to get counselling and attend rehabilitative programmes; struggles with mental health; is diagnosed with PTSD and bipolar disorder; and has previously had suicidal ideation.

[19]   Ms Saunderson-Warner reports that Mr Dunlea was exposed to violence from a young age. When he was four years old his mother began a relationship with a gang member who lived in the family home. Mr Dunlea was subject to regular physical and psychological violence. At age 10 he was removed from his mother’s care for six months. When he was returned, the violence continued. He was removed from his mother’s care again and placed with his father for a year. His father, however, was a recovering alcoholic. Mr Dunlea was, again, placed back into the care of his mother. He reports being beaten daily, including with weapons. When his sister was four years old Mr Dunlea witnessed her being suffocated and nearly dying. He also witnessed his mother being beaten regularly.

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

[20]   Unsurprisingly, Mr Dunlea’s education suffered. He attended four primary schools, was excluded from intermediate and then excluded from high school after only two years. He has no qualifications and reports he is dyslexic.

[21]   Ms Saunderson-Warner reports Mr Dunlea was diagnosed with bipolar disorder in 2018 and he says medication made his condition worse. He suffered from very low mood and suicidal ideation. He moved to South Otago and obtained farm work and attempted to get counselling in attempt to make a fresh start. Mr Dunlea accepts he is an alcoholic and he says he relapsed the day of the offending.

[22]   The decision of the Court of  Appeal  in  Zhang  v  R  is  referred  to  here.6 Ms Saunderson-Warner submitted that exposure to violence as a child is a form of deprivation that is causatively linked to the offending in this case. She maintains that it is not necessary, in this case, for the information on deprivation to come via a cultural report.

[23]   Addiction is  a  relevant  factor  here.  While  a  discount  in  the  realm  of  30 per cent, like in Zhang, is not suggested here, Ms Saunderson-Warner contends that Mr Dunlea’s alcohol addiction should not have been ignored. Further, it is submitted the mental health issues that Mr Dunlea suffers are all linked and relevant to the manner in which he offended. Ms Saunderson-Warner says a global discount of 15 per cent is appropriate.

[24]   She then notes quite properly that Judge Large made a mathematical error in calculating the guilty plea discount. A discount of 25 per cent, from a starting point of 36 months, should have been nine months, not the seven month discount the Judge allowed. And she maintained that, in any event, a full 25 per cent discount is appropriate.

Respondent’s submissions

[25]   Mr Smith, counsel for the respondent, suggests the starting points adopted by Judge Large were low, given the overall circumstances of the offending. Mr Smith

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

further submits there was no material evidence presented to the Judge that allowed credit for mitigating factors.

[26]   Mr Smith referred me to Faaleaga v R in which the Court of Appeal considered sentence starting points for charges of threatening to kill or do GBH.7 The Court considered a consistent pattern in sentencing for charges of this nature was challenging.8 Mr Smith submits the threats made by Mr Dunlea here were allied closely to the actual violence and damage to the victim’s property. Mr Dunlea deliberately smashed the bottle to illustrate its lethality. That offending occurred too in close proximity to the victim’s home.

[27]   Mr Smith maintains the starting point of two years imprisonment for the threat and actual violence was low, given Mr Dunlea’s culpability.

[28]   The credit for mitigating factors sought by Mr Dunlea’s counsel, Mr Smith says, is not substantiated by evidence, or to the extent that there may be some relevant evidence provided, it is not deserving of credit.

[29]   Mr Smith notes that Judge Large acknowledged that Mr Dunlea explained the offending arose out of him being under stress. He submits that by Mr Dunlea minimising both his intoxication and the extent of the offending, he has shown limited insight into his offending. Further, while he has had the benefit of rehabilitative programmes in the past, he has not taken advantage of them.

[30]   Overall, it is accepted for the respondent that Mr Dunlea’s disadvantaged background may be deserving of some credit, even though it is entirely self-reported. Mr Smith says, however, the medical issues raised are not causative of the offending, in the sense of being operative at the time. Further, the medical issues would not render imprisonment disproportionately severe.

7      Faaleaga v R [2011] NZCA 495.

8 At [9].

[31]   The matters that Mr Dunlea now seeks credit for, according to the Crown, overlap to a considerable degree which gives rise to a risk of more substantial discounts being given than would otherwise have been appropriate.

[32]   Finally, Mr Smith contends that Judge Large actually intended to give a seven month discount for guilty plea, which is almost 20 per cent. Mr Smith considers Judge Large explained that he was not allowing full credit for guilty plea, most prominently because of the strength of the prosecution case.

Analysis

Guilty plea discount

[33]   As I have noted, Ms Saunderson-Warner submitted that Judge Large made a mathematical error in deducting the 25 per cent discount for guilty pleas. The relevant passages of the judgment are as follows:9

[35]      … I do not think I can give you any credits other than for your guilty plea. On a purely mathematical basis, 25 percent, on 36 months is a little over seven months.

[36]      The Hessell v R which authorises the Court to take into account guilty pleas, does not specify that the credit to be given must be 25 percent. It says it can be up to 25 percent, so the allowance for guilty pleas is not a simple mathematical exercise.

[37]       Here your guilty pleas would have almost been inevitable because the weight of the evidence would have been overwhelming, I deduct seven months for your guilty plea, which brings me to a sentence of 29 months’ imprisonment.

(emphasis added)

[34]   There is some room for ambiguity in these three paragraphs. But I consider, first, the fact that Judge Large stated a discount of 25 per cent, on 36 months, equated to a seven month discount, and then he went and applied that seven month discount does support the view that the Judge’s intention was to give a full 25 per cent discount for the guilty pleas. That full 25 per cent discount equates to nine months, not a seven month discount.

9      R v Dunlea, above n 2. Emphasis added.

[35]   The Court of Appeal guidance on the issue provides that if it is clear that the mathematical error resulted in a sentence that is more severe than that which the Judge intended to impose, it must be corrected.10 In making a determination on that matter, this Court is required to conduct the sentencing exercise afresh to determine whether the end sentence was manifestly excessive, and a different sentence should have been imposed.

Starting point

[36]   My approach to the notional starting point for the lead offending differs from that of Judge Large. However, I do reach the same overall starting point of two years and nine months’ imprisonment. For completeness, I include my analysis below.

[37]   I consider the lead offending to be the first charge of threatening to do GBH, to Mr R. There is no tariff decision as the circumstances under which such threats are made vary greatly. Indeed, comparison to other cases has been viewed as offering limited assistance in setting the starting point, due to the heavily fact dependent nature of the charge.11 The following cases are illustrative of that point:

(a)Newton v Police where a starting point of two years’ imprisonment for threatening to kill was held to be appropriate.12

(b)Taylor v Police where a starting point of 18 months’ imprisonment for threatening to kill was adopted.13

(c)Police v Hutchinson where a starting point of 14 months’ imprisonment for threatening to do grievous bodily harm to a member of Parliament was adopted.14

10     Ferris-Bromley v R [2017] NZCA 115 at [15].

11     Newton v Police [2019] NZHC 1923 at [26].

12 At [27].

13     Taylor v Police [2014] NZHC 1139.

14     Police v Hutchinson [2017] NZDC 20522.

[38]   In my view, the aggravating factors relevant to the offence here are the actual violence, the use of a weapon15 and the proximity of the threat. There are no mitigating factors relevant to the offence. Threatening to cause GBH is a serious offence, the maximum penalty is seven years’ imprisonment. I consider the use of the broken glass bottle as a weapon and the proximity of the threat to Mr R to be serious aggravating factors. In my view, a starting point of 18 months’ imprisonment on the lead charge of GBH was appropriate.

Further uplifts

[39]   I consider an uplift of three months for the second charge of threatening to cause GBH, to Mr R’s son, to be appropriate. The charge of assault with a weapon, namely a broken glass bottle, is also serious. This charge carries a maximum penalty of five years’ imprisonment. For this charge I apply an uplift of six months’ imprisonment. I apply a three months uplift for the unlawful taking of a motor vehicle, and one month in respect of each charge of possession of an offensive weapon, theft and wilful damage. This leaves the total starting point of 33 months’ imprisonment.

The sentence is summarised in table format below:

Description	Date	Starting point
Threatening to do GBH	13 November 2019	18 months
Uplift for threatening to do GBH		+ 3 months
Uplift of assault with a weapon		+ 6 months
Uplift for unlawfully taking motor vehicle		+ 3 months
Uplift for possession of an offensive weapon		+ 1 month
Uplift for theft		+ 1 month
Uplift for wilful damage		+1 month
Starting point		33 months (two years and nine months)

15 Sentencing Act 2002, s 9(1)(a).

[40]   In respect of personal aggravating factors, I agree with Judge Large that an uplift of three months to reflect Mr Dunlea’s previous convictions is appropriate. This history involved two convictions for injuring with intent to injure, reckless disregard and six charges of threatening to kill. This bring the starting sentence, before mitigating factors are deducted, to 36 months’ imprisonment (three years).

Mitigating factors

[41]   The mitigating factors as they relate to Mr Dunlea are his guilty plea. In addition, Ms Saunderson-Warner submits a global discount for addiction and deprivation is justified here.

Addiction

[42]   Firstly, I note the effect of voluntary consumption of alcohol, at the time of offending, cannot be taken into account as a mitigating factor.16 The Court of Appeal in Zhang v R held that where there is a causal nexus between the offending and the appellant’s addiction issues a discrete discount may be warranted.17 This ought to be based on “persuasive evidence, as opposed to mere self-reporting.”18 Where that addiction is non-causative it will be of little mitigatory relevance.19 The pre-sentence report dated 24 February 2020 states Mr Dunlea acknowledges he has trouble with alcohol. He has previously completed six months in a Drug Treatment Unit. The report links Mr Dunlea’s impulsive behaviour and alcohol abuse to the extreme response that lead to the events in this case. I acknowledge, however, that the report contains a degree of self-reporting. In my view, Mr Dunlea has failed to satisfy the Court that there is a sufficient causal nexus between his addiction and the offending. As such, a discrete discount is not justified.  For completeness, I note the principles of rehabilitation and reintegration in sentencing may be engaged in relation to addiction issues. While I do not consider that a discrete discount in sentencing is warranted here, I note it would desirable, and Mr Dunlea would benefit from, addiction treatment in the future.

16     Sentencing Act, s 9(3).

17     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [147]-[148].

18 At [148].

19 At [147].

Deprivation

[43]   Social, cultural or economic deprivation with a clear nexus to the offending may  be  a  mitigating  factor  in  sentencing.20  Ms  Saunderson-Warner  submits   Mr Dunlea has mental health issues which stem from his childhood trauma and deprivation. This position is supported by the pre-sentence report dated 24 February 2020. This records that Mr Dunlea witnessed, and was regularly subjected to, serious violence throughout his childhood.

[44]   Having given the report and the circumstances of this case careful consideration, I do not consider a discount for deprivation to be available. There is not a sufficiently clear nexus between the offending in this case, and the deprivation that Mr Dunlea has suffered as a result of his childhood experiences.

[45]   Furthermore, I note the report states Mr Dunlea minimised the violence, claiming much of the summary of facts was untrue. I accept Mr Smith’s submission here that Mr Dunlea appears to lack insight into his offending.

[46]   I consider Mr Dunlea’s early guilty pleas warrant a discount of 25 per cent. While the evidence against him may have been overwhelming, he did plead guilty promptly and is thus entitled to significant discount as a reflection of the value of early guilty pleas.

[47]   Applying this full 25 per cent discount for the guilty pleas which I accept Judge Large had in mind here (despite the mathematical error he clearly made in this case) this amounting to some nine months, the appropriate final sentence here is one of 27 months’ imprisonment (two years and three months). In any event, this is an appropriate end sentence if the sentencing exercise here were to be conducted afresh. And it is some two months less than the sentence which was imposed of 29 months’ imprisonment.

20 At [162].

Conclusion

[48]    To the extent I have noted above, this  appeal is  allowed.  The sentence of  29 months (two years  and  five  months)  is  quashed.  In  its  place  a  sentence  of 27 months (two years and three months) is substituted.

...................................................

Gendall J

Solicitors:
RBP Law, Dunedin

Copy to:
Sarah Saunderson-Warner, Barrister, Dunedin