Dunn v Police HC Napier CRI-2011-441-000023
[2011] NZHC 1096
•5 September 2011
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2011-441-000023
THOMAS JOHN DUNN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 31 August 2011
Counsel: RD Stone for Appellant
J Lucas for Respondent
Judgment: 5 September 2011
JUDGMENT OF ASHER J
This judgment was delivered by me on Monday, 5 September 2011 at 4.45pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Souness Stone Law Partnership, PO Box 975, Hastings 4156.
Crown Solicitor, DX MP70017. Napier 4140. Email: [email protected]
DUNN V NZ POLICE HC NAP CRI-2011-441-000023 5 September 2011
[1] Thomas John Dunn appeals his sentence on a number of charges. On 7 June
2011 he was convicted and sentenced on the following offences:
3 November 2010 – driving while disqualified (third or subsequent); 31 January 2011 – burglary;
22 February 2011 – assault with intent to injure;
8 March 2011 – driving while disqualified (third or subsequent), dangerous driving, failing to stop, unlawfully taking a motor vehicle;
and
20 March 2011 – wilful damage.
[2] Judge Mackintosh ultimately sentenced Mr Dunn on all charges to three years’ imprisonment with an accompanying small sentence of reparation and concurrent sentences in relation to the less serious charges. On the driving while disqualified charges, each of which carried a maximum sentence of imprisonment of two years’ imprisonment, she adopted a starting point of two years’ imprisonment with a discount of 25 per cent for the guilty pleas, a total therefore of 18 months. On the burglary she took a starting point of 18 months, uplifted for previous convictions to two years’ imprisonment and then with a 25 per cent discount reduced to 18 months’ imprisonment again. It would appear, although this is not expressly stated, that sentence of 18 months also included the penalty for the assault with intent to injure charge. She also sentenced Mr Dunn “On the other matters other than the dangerous driving which has a three month imprisonment penalty” to one years’ imprisonment, to be concurrent. Mr Dunn was disqualified from driving for a further period of two years.
[3] Mr Stone for the appellant submits that the sentence was, in the circumstances, manifestly excessive. In particular he submits that the starting point for the driving while disqualified offence was too high. This was the primary focus of the appeal, although he also was critical in written submissions of the starting
point fixed for the burglary offending. It also appeared to be part of the submission that on the totality principle the end sentence was manifestly excessive.
[4] This is an appeal under s 115 of the Summary Proceedings Act 1957. The appellant must show that the ultimate sentence was “clearly excessive or … inappropriate”.[1]
[1] Summary Proceedings Act 1957, s 121(3)(b).
[5] In assessing the submissions it is necessary to deal with each head of offending separately.
The driving offending
[6] On 3 November 2010 Mr Dunn was observed driving a late model Honda motor vehicle with multiple passengers. The vehicle was stopped by the Police for a routine check. It was ascertained that Mr Dunn was disqualified from holding or obtaining a driver licence.
[7] On 8 March 2011 the defendant was observed driving a stolen Nissan motor vehicle in Upper Queen Street, Auckland. Police activated their red and blue flashing lights and attempted to stop him. Mr Dunn accelerated away reaching speeds of between 80 and 90 kilometres per hour through one intersection governed by traffic lights. He drove aggressively through the inner city streets showing disregard for other road users. He entered the Symonds Street and Karangahape Road intersection of speeds of up to 80 to 90 kilometres per hour at a time when numerous pedestrians were attempting to cross the intersection. Outside Auckland University he crossed the centre line into the opposite lane. The Police abandoned the pursuit of the car because of the danger posed to the public and located the defendant shortly after. In explanation Mr Dunn said that he took the Nissan from the carpark knowing that it was stolen and that he did not stop because he was scared.
[8] Mr Dunn, although he is only 24 years old, has some history of serious driving offending. This not only includes some convictions for driving while
disqualified, but offences of operating a motor vehicle recklessly, failing to stop when followed by the Police and failing to stop after a non-injury crash. The driving in this particular case was very bad and it seems to have been pure good luck that no one was hurt. Mr Dunn shows a total lack of recognition of his responsibility to abide by disqualification orders and to drive in a manner that does not endanger the public.
[9] Mr Stone asked for his offending to be seen in the context of him driving badly to avoid apprehension. He observed that there was no alcohol involved. I do not see this factor as mitigating the offending. If there had been other aggravating factors, there would have been further charges and a greater potential penalty.
[10] Nevertheless, I consider that it was a severe approach to adopt the maximum starting point of two years’ imprisonment. There could be seen to have been an uplift for his previous driving record but it was not particularly bad. It is possible to imagine worse driving, and more aggravating factors. However, for reasons that I will outline I do not need to determine whether the sentence was so out of line as to warrant intervention on appeal.
The burglary
[11] Mr Dunn and an associate went to the rear of a residential property and smashed a bathroom window that allowed them access. They climbed inside and located a Playstation, three model cars, two car stereos, a cellphone and a wrist watch in a bedroom. They stole all these items valued at $2,967.02. This caused considerable grief to the owners.
[12] The maximum sentence available was 10 years’ imprisonment. The starting point reached by the Judge was 18 months, uplifted by six months to two years because of previous serious dishonesty offending.
[13] I consider that a starting point of 18 months was open to the Judge. The uplift of six months for the previous bad record was entirely justified. Mr Dunn, at the age of 24, has accumulated no less than 25 previous convictions for dishonesty
offences. Some are burglary offences although many involve theft and the taking of motor vehicles. An uplift of six months in those circumstances was modest. The end sentence of two years on these charges fixed by the Judge was entirely justified. She then allowed a discount of 25 per cent for the guilty plea.
The violence offending
[14] On 22 February 2011 Mr Dunn was a passenger in a vehicle driving in Hastings. He saw the victim walking along the road. He knew the victim and had previously assaulted him seriously and been imprisoned for that assault. Mr Dunn got out of the car and approached the victim. After a brief conversation he punched him twice in the head. The victim tried to run away across the road. Mr Dunn chased him and tackled him causing a graze to the victim’s knee. When the victim was lying face down with Mr Dunn on top of him, Mr Dunn began punching him in head. He did so approximately 12 to 16 times before kneeing him in the right side of the head. Mr Dunn then stood up. The victim curled up into a ball with his hands and arms protecting his head. The defendant kicked him three or four times in the head before an unknown member of the public pulled him away. The victim got up and ran away and called the Police
[15] The victim received bruising to his head and body and grazes to his right knee. He suffered headaches for several days after the offence. Needless to say he is afraid and traumatised by the events.
[16] The Judge appears to have included the sentence for the violence offending in the burglary sentence. However, it would have been preferable for the violence offending to have been dealt with separately. The maximum penalty on the charge of assault with intent to injure is three years’ imprisonment. It has to be said that if anything Mr Dunn was undercharged in relation to this offending. Of its type as a s
193 offence, it has to be seen as of the most serious type. Applying the guidelines in R v Harris to this sort of offending (which applied to the more serious offence of injuring with intent) it might well fall within band two where sentences of up to two
years’ imprisonment can be justified.[2] There are particular aggravating features, including the intentional nature of the assault, the ongoing pursuit of the victim even when he was in a vulnerable position, and the kicking to the head. On these charges, as a separate matter, a starting point of 18 months to two years’ imprisonment could well have been justified.
[2] R v Harris [2008] NZCA 528 at [10].
[17] A significant uplift on the starting point for sentence was warranted because of the aggravating feature that this was a second assault on the victim. On the previous assault he had been sentenced to three months’ imprisonment. When he carried out the assault in question he had not long been released. He had flagrantly chosen to reject any lessons from the first sentencing. That previous offending is a significant aggravating feature and would warrant at least a six month uplift. So the sentence on the assault charge before a deduction for the guilty plea should have been in the vicinity of two years’ imprisonment. In fact, there appears to have been no separate penalty imposed for this offending.
The other charges
[18] From the notes on the information sheet it would appear that on the charge of dishonestly and without claim of right taking the Nissan motor vehicle Mr Dunn was sentenced to one years’ imprisonment. This is not challenged. On the driving in a dangerous manner he was sentenced to three months’ imprisonment to be concurrent. He was also charged relating to his intentionally slashing the tyres of another person’s vehicle in a drug-related incident. It is not clear what sentence was imposed on the wilful damage charge that followed. On the dishonest taking and wilful damage charges on their own, a cumulative sentence of three months’ imprisonment would have been warranted.
The offending – an overview
[19] It was open to the Judge to impose a sentence of up to 18 months on the driving charges, of 18 months increased to two years because of previous dishonesty
offending on the burglary charge, of two years’ imprisonment on the assault with intent to injure, and one year’s imprisonment on the car conversion and three months’ imprisonment on the wilful damage. This is before a consideration of what sentences should be cumulative or concurrent, or a calculation of what is appropriate on a totality basis. The total comes to six years and nine months’ imprisonment as a starting point.
[20] Each of the offences is of a different kind. In terms of s 84(1) of the Sentencing Act 2002 cumulative sentences were therefore appropriate. There is perhaps some connection between the theft of the motor vehicle and the driving of the motor vehicle in that the driving occurred in that vehicle, but the kind of offending is in essence different.
[21] In terms of s 85(2) it is necessary to ask whether if cumulative sentences of imprisonment are imposed on all these charges, whether individually or in combination with concurrent sentences, they result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. In general terms, this offending was grave. There is a real need to denounce and deter those who are engaged in a spree of utter lawlessness. Shortly before this spree of offending Mr Dunn had been released from prison. Prison had not deterred him. There is no doubt he constituted a grave danger to society acting the way he did through this period.
[22] However, taking into account the totality principle a significant deduction was necessary. A sentence of four to five years’ imprisonment could have been in the range.
[23] The pre-sentence report does not help Mr Dunn at all. He does not accept that he is criminally minded or violent by nature and seems to have a complete lack of remorse or insight into this behaviour. He is assessed as having a high risk of re- offending.
The end sentence
[24] In the end the Judge sentenced Mr Dunn to three years’ imprisonment. It can be seen from the analysis that has been carried out that this was a light sentence. The difference is in the lack of a specific penalty of imprisonment on the assault with intent to injure charge. There has been no challenge to the sentence from the Crown and I am not minded to intervene of my own volition. However, it must be said that Mr Dunn is extremely fortunate to have only been sentenced to three years’ imprisonment. Far from the sentence being manifestly excessive, it was in my view very light.
Result
[25] The appeal is dismissed.
……………………………..
Asher J
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