R v Dallison
[2023] NZHC 976
•28 April 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-009-5239
CRI-2022-009-6143 [2023] NZHC 976
THE KING v
IAN WILLIAM DALLISON
Hearing: 28 April 2023 Counsel:
C T Hislop for Crown
P L Borich KC for Defendant
Sentence:
28 April 2023
SENTENCING NOTES OF ISAC J
Introduction
[1] Mr Dallison, you appear for sentence today having pleaded guilty to charges of:
(a)attempted murder;1
(b)wounding with intent to injure;2 and
1 Crimes Act 1961, s 173, maximum penalty of 14 years’ imprisonment.
2 Section 188(2), maximum penalty of seven years’ imprisonment.
R v DALLISON [2023] NZHC 976 [28 April 2023]
(c)three representative charges of unlawful possession of pistols, restricted weapons and prohibited magazines.3
[2] The maximum penalty for attempted murder is 14 years’ imprisonment. The maximum penalty for the wounding and firearms charges are seven and three years’ imprisonment respectively.
[3] I wish to acknowledge the victims of your offending and their bravery. As you have heard, they continue to struggle with the physical and emotional harm that you caused them.
The offending
[4]I will begin by setting out the facts of your offending.4
[5] You were a tenant in commercial premises owned by one of the victims from which you operated a private surgery as an ophthalmologist.
[6] You became indebted to your landlord as a result of failing to pay rent and, as a result, he had been obliged to bring bankruptcy proceedings against you in the High Court. A hearing of the bankruptcy petition was scheduled to take place in the morning of 4 August 2022—the day of your offending.
[7] The day before the bankruptcy hearing—3 August—you used your personal laptop to access Google Maps. Over a period of four minutes, you researched the location of the victims’ home. Later the same evening and over a period of 20 minutes your cell phone polled in the suburb where they were living.
[8] You were then declared bankrupt in the morning of 4 August. In the early afternoon you again used Google Maps to locate the victims’ home. Then, at 6.45 pm, you loaded your car with nine firearms—all of which appear to have been pistols or
3 Arms Act 1983, s 50(1)(a) and (b), maximum penalty of three years’ imprisonment and a $4,000 fine, and s 50B, maximum penalty of two years’ imprisonment.
4 Previously Mr Dallison had taken issue with two aspects of the Crown summary of facts. But, having heard from his counsel, it has been unnecessary to conduct a separate hearing to determine them.
concealable weapons—and 167 rounds of ammunition. Several of the firearms you knew you could not lawfully possess. The firearms included a loaded Ruger .22 semi-automatic pistol, a Maglite torch shotgun with ammunition, two Mag pen guns, one with a silencer.
[9] You then set-off for the victims’ home. En route you stopped at a service station and then at a supermarket to purchase D-Cell batteries. The batteries were needed to make the Maglite torch shotgun capable of firing. It is also clear that you had a round of ammunition in the torch and that you armed the weapon by inserting the batteries into it.
[10] On arrival you parked a distance from the victims’ home. You then armed yourself with the loaded Ruger pistol and put spare shotgun rounds as well as a spare magazine with 10 rounds in your jacket pocket.
[11] Having done so, you walked to the victims’ home. Shortly after 7.30 pm, you entered through the main door at the rear of the house and walked into the kitchen, where your former landlord and his partner were eating dinner.
[12] You then fired the pistol at the first victim intending to kill him. The round narrowly missed his head, lodging in the door frame over his right shoulder. You then shifted aim and pointed the pistol at the victim’s chest and, from approximately two-and-a-half metres, pulled the trigger a second time. But on this occasion the firearm jammed and the round did not discharge.
[13] Both victims then rushed at you. A violent struggle ensued for control of the firearm. It is no exaggeration to say Mr Dallison that the victims were fighting for their lives. During the struggle you used your finger to gouge one of the victim’s eyes. That injury appears to have caused lasting damage to his eyesight. You also pistol whipped his partner four or five times to the back of her head, wounding and concussing her.
[14] Neighbours heard her screams and cries for help. They entered the address and were able to restrain you and you were finally disarmed.
[15] Your offending appears to be inexplicable Mr Dallison. You appear for sentence for attempted murder at the age of 66, and as a former senior and respected member of the medical profession. Unlike many defendants who come before the Court, you have had a privileged life.
[16] You graduated with a degree in medicine in 1980 and went on to qualify as an ophthalmologist. From 2000 you had a successful private practice in this city. The business flourished in the following decade, and you enjoyed a substantial income and comfortable lifestyle. However, due to a combination of factors, including impacts of the Christchurch earthquakes, and decreasing global demand for laser eye treatment, it seems that the profitability of the practice decreased significantly as time went on.
[17] Unable to rebuild your commercial premises following the earthquakes, you sold the land to one of the victims to redevelop it and entered into a long-term commercial lease with him. However, the practice continued to struggle financially and was unable to meet its operating expenses. By the end of 2020, the business had accrued a not insignificant rental debt, and you were eventually evicted from the premises.
[18] Your financial situation did not improve. You had a period of months without any work. A report tells me that you felt immense stress from the financial pressures, and anger at losing the things that you had worked hard to achieve. Ultimately, you were made bankrupt for the outstanding rent even though you could easily have paid it from the substantial capital you had accumulated over your career, and had been advised by family and professional advisers to do so. That you chose not to reflects that you had, quite wrongly, begun to blame the victim for your own financial misfortune, and had an overdeveloped and irrational sense of grievance.
[19] Only you Mr Dallison know the reasons for what followed, but one explanation for your offending lies in the report of a clinical and forensic psychologist provided by your counsel for sentencing. The report suggests that while the offending presents as a major departure from your normal character, other aspects of your thinking, emotions and behaviour leading up to it presented well-established patterns. In particular, the report writer concluded that you do not take kindly to anyone with
whom you have a financial dispute—be it former spouses, family or business partners. In such situations you are said to become arrogant, irrational, angry and uncompromising. Some might describe such behaviour as entitled.
[20] The psychologist found no clinical evidence of a mental illness or personality disorder, or difficulties with substances, that might be relevant as a personal mitigating factor.
Starting point
[21] I now turn to the first stage of the sentencing process, which is to set a starting point for the offending. That starting point will then be adjusted to take into account your personal circumstances at the second stage.
[22] In R v Taueki, the Court of Appeal established sentencing bands for grievous bodily harm offending.5 The courts have often turned to that decision to assist the sentencing exercise for attempted murder. It provides a framework against which the starting point can be checked.
[23] In my view, the present offending falls into Band 3 of Taueki, which attracts a starting point between nine and 14 years’ imprisonment. I reach that view because the offending contains at least three serious aggravating features.
[24]In your case I consider the following aggravating features were present:
(a)A high degree of premeditation: You began preparing to attack the victims the day before the offending. This included undertaking online research to locate their home and travelling to their suburb the night before. The number of concealable firearms and ammunition, and the purchase of batteries for the Maglite torch indicate a mature plan inconsistent with a sudden loss of control.
5 R v Taueki [2005] 3 NZLR 372 (CA), (2005) 21 CRNZ 769.
(b)Home invasion: You entered the victims’ home in the early evening while they were eating dinner. The courts have consistently regarded intrusion into the safety of the home to commit crimes of violence as a serious aggravating factor.
(c)Use of a firearm: It goes without saying that a firearm is a lethal weapon easily capable of causing immediate death or serious injury.
(d)The vulnerability of the victims: Both were unarmed. Your former landlord was 75 years of age — a good deal older than you, Mr Dallison. His partner was an unarmed woman who during the struggle for control of the weapon was struck repeatedly by you to the head with it.
(e)Targeting the head: Both victims had serious injuries to their heads, suggesting that the violence you used was meant to cause them serious harm.
(f)Serious violence: Both victims suffered significant injury. It is an especially aggravating feature that as an ophthalmologist you would target the victim’s eye, causing him what may be a permanent disability.
(g)Motivation for revenge: It seems obvious given the relevant facts that you attacked the victims out of vengence as a result of your bankruptcy.
[25] In approaching the appropriate starting point I have considered a number of previous decisions referred to by the Crown and your previous counsel.6 You had previously submitted that a starting point of nine to 10 years’ imprisonment should result from a case comparison. By contrast, the Crown submitted that an overall starting point of 12 years’ imprisonment is appropriate. This was comprised of
6 R v Lyttleton HC Auckland CRI 2008-044-9465, 31 March 2010; R v Shaw CA308/97, 5 March 1998; R v Jackson HC Whanganui CRI-2006-083-1891, 7 February 2007; R v Nicol [2014] NZHC 2110; R v Wenzlick [2021] NZHC 320; R v Dick-Karetai [2022] NZHC 1536; R v Wyant [2015] 3076; R v Mackay [2021] NZHC 3360; and R v Vaioleti [2013] NZHC 3358.
11 years’ for the charge of attempted murder and wounding, with an uplift of one year for the firearms charges.
[26] The most relevant cases in my view are R v Lyttleton, R v Shaw, R v Jackson and R v Nicol. All four cases involved sentencing for attempted murder involving the use of a firearm. Home invasion and two victims—a husband and wife—were also present in Lyttleton. There was also a high degree of premeditation and persistence in the offending, which resonate in your offending Mr Dallison. Unlike the present case, life-threatening wounds were caused to one person, although she was not the victim of the attempted murder, and the seriousness of her injuries were not intended by the defendant.7
[27] Nicol, Shaw and Jackson involved shootings outside the home. And in Shaw, it appears that although the victim was shot at point-blank range the bullet miraculously failed to enter his body, and did not therefore cause any physical injury. The Court of Appeal did not disturb the trial Judge’s starting point of 10 years’ imprisonment. As the Court there emphasised, while attempted murder encompasses a wide range of situations, including those where there has been no injury to the victim, the gravamen of the offence is an intention to kill, and the physical acts meant to bring that intent to fruition. Similarly in Jackson, a shotgun was fired at the victim through the rear window of a vehicle he was in. His injuries were minor. The starting points adopted in these cases ranged from 10 years’ imprisonment (Lyttleton and Shaw) to 11 years’ imprisonment (Jackson and Nicol).
[28] In the present case, serious and possibly permanent injury was caused to one of the victim’s eyes. The fact that he was not killed by the round you discharged at him was a matter of blind luck. I do not consider that where a defendant aims and fires a loaded firearm at another person meaning to kill them, the fact that their purpose was not achieved, or did not result in serious injury, is a matter that can be called in aid of a lower starting point. The starting points adopted in Nicol, Shaw and Jackson are consistent with that view.
7 The charge that encompassed the shotgun wound to the female victim was causing grievous bodily harm with intent to injure.
[29] Overall, an appropriate starting point reflecting the totality of your offending is 10-and-a-half years’ imprisonment. This reflects the serious harm to two victims, but acknowledges that the unlawful possession and use of firearms were an integral element of both the attempted murder and wounding charges and should not be double counted.
Adjustments for personal factors
[30] I now turn to consider the adjustments that need to be made to the starting point to reflect your personal circumstances.
Guilty plea
[31] First, both the Crown and your counsel submit that you are entitled to a full 25 per cent discount for your early guilty pleas. I agree. I also accept the Crown’s submission that no discrete uplift is warranted for your limited and historic previous convictions.
Previous good character
[32] The next factor to consider is whether, as Mr Borich submits, a reduction is also required to reflect your previous good character and what he describes as your fall from grace, particularly given your age. He says that following decades of work as a medical specialist you have lost your freedom, profession, status and a good proportion of your remaining years to prison. Mr Borich also points to a large number of references from your family, friends and colleagues who speak of a kind, friendly and good-natured person. The underlying theme of those letters is that your offending was completely out of character. I readily accept those views.
[33] Mr Dallison, there is no doubt that your current position represents a ruinous end to a long career and a loss of standing in the community. Your previous conviction for assault was over thirty years ago, so for the purpose of sentencing you today I accept that you deserve credit for the responsible life that you led until your offending.8
8 Discounts for previous good character reflect that a fall from grace is punishment in itself, and a greater potential for rehabilitation and reduced likelihood of reoffending: Taylor v R [2017] NZCA 574 at [24]; R v Findlay [2007] NZCA 553 at [91]; R v Fahey CA184/00, 2 November 2000;
At the same time, however, the Court cannot lose sight of the fact that you do come from a privileged background and unlike many defendants you were equipped to deal with the issues you were facing. These factors must temper the extent of any discount that might be awarded for previous good character.9
[34] Overall, I consider you are entitled to a discount of 10 per cent on account of your previous standing and good character.
Impact of sentence on defendant
[35] Next, Mr Borich submits that the conditions attaching to your detention, which involve isolation from other prisoners and, to a lesser extent, those conditions given your age, warrant a further discount.10
[36] I do not consider it is appropriate to treat conditions of detention as a mitigating factor. Many prisoners experience similar or more restrictive conditions than you. And while it is true that you face imprisonment in your 60s, there is no indication that you suffer from ill health or a condition that would otherwise make a term of imprisonment at your age disproportionate or unduly severe.
Remorse
[37] Finally, Mr Borich submits that the combination of your guilty plea, willingness to undertake rehabilitative treatment in prison, and what he says is the commencement of the process of acceptance by you of what you have done warrants a further discrete discount for remorse.
B (CA182/2018) v R [2019] NZCA 18 at [72]; and Manawaiti v R [2013] NZCA 88.
9 The courts have observed that an offender who has had certain privileges—such as natural intelligence, a high standard of education, a supportive family and a good upbringing—is more culpable than an offender from a more deprived background, and is less deserving of a discount for previous good character: R v Bailey [1988] 1 NZLR 109 at 121; Faleaogo v Police HC Auckland AP190/89, 6 October 1989 at 8; Ravlich v Police (1989) 4 CRNZ 160 at 162; and R v McLean [2001] NZHC 367 at [26].
10 The Court must take into account any particular circumstances of the offender which would mean that imprisonment would have a disproportionately severe effect on them: Hastie v R [2011] NZCA 498 at [40]; and Sentencing Act, s 8(h). Whether a discount is appropriate and the amount of a discount is a matter of fact and degree that turns on the particular facts of a case: M (CA91/2012) v R [2013] NZCA 325 at [54].
[38] Unfortunately Mr Dallison, the material provided to the Court indicates that further credit for remorse would be inappropriate.11 Indeed, there are indications— which the Crown has referred to—that you feel little or no remorse for what you have done and continue to blame one of the victims for your predicament.
Net adjustment for personal factors
[39] Overall, then, I have identified personal discounts totalling 35 per cent from the starting point of 10 years and six months’ imprisonment. That reduces the sentence to six years and 10 months’ imprisonment before any adjustment for totality.
[40] Standing back and considering the seriousness of your offending, I cannot see room for further discount. I have gone as far as principle and parity allows.
Minimum period of imprisonment
[41] The Crown did not seek a minimum non-parole period under s 86 of the Sentencing Act 2002. Given your age, the absence of any relevant previous offending and the fact that these offences are clearly out of character, I am satisfied that a minimum period of imprisonment is not required. The Parole Board is well qualified to make the appropriate assessment of the risk, if any, you may present on release.
End sentence
[42]So Mr Dallison I will now ask you to stand please.
[43] On the charge of attempted murder, you are sentenced to six years and 10 months’ imprisonment.
[44] On the charge of wounding with intent to injure, you are sentenced to two years’ imprisonment.
[45] On each of the firearms charges, you are sentenced to 12 months’ imprisonment.
11 Moses v R [2020] NZCA 296 , [2020] 3 NZLR 583 at [24]; and Hessell v R [2010] NZSC 135,
[2011] 1 NZLR 607 at [64].
[46] All of these sentences are concurrent, so the maximum sentence you will serve is six years and ten months’ imprisonment.
[47] I make an order for the destruction of the firearms and ammunition identified in the schedule to the Crown’s submissions.
[48]Thank you Mr Dallison. Please stand down.
Isac J
Solicitors:
Crown Solicitor, Wellington for Crown
Walker Street Chambers, Christchurch for Defendant
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