R v Dalrymple - [2015] NZHC 2391

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2014-016-0008 [2015] NZHC 2391

THE QUEEN

v

BARBARA DALRYMPLE

Hearing: 1 October 2015

Appearances:

C R Walker for Crown
E R Fairbrother QC for Defendant

Sentence:

1 October 2015

SENTENCING REMARKS OF LANG J

R v DALRYMPLE [2015] NZHC 2391 [1 October 2015]

[1] Ms Dalrymple, you appear for sentence today having been found guilty by a jury on a charge of aggravated robbery and three charges of being an accessory after the fact to a wounding with intent to injure.

[2] The maximum penalty on the charge of aggravated robbery is 14 years imprisonment. The maximum penalty on the other charges is five years imprisonment.

The facts

[3] All of the charges arise as a result of events that occurred over Easter Weekend in 2014. At that time you were involved in a relationship with Mr Troy McHugh. It appears that one of the signal features of the relationship was the consumption of drugs, including methamphetamine. Mr McHugh, at that time, was also involved as a drug dealer, principally selling cannabis.

[4] The evidence at trial disclosed that during the days leading up to Easter Weekend, Mr McHugh was in Auckland selling cannabis. Text message traffic between Mr McHugh and yourself during this period revealed several texts that appear to relate to drugs. In particular, you sent Mr McHugh a text telling him that a certain quantity of drugs had been sold recently from a particular address in Gisborne with which he was familiar. That address was occupied by Mr Jermaine Whatuira.

[5] On the evening of 19 and 20 April 2014 you were with Mr McHugh. Receipts produced at the trial show that you purchased food at fast–food restaurants in Gisborne around midnight. Then shortly before 1.00 am Mr McHugh sent a text to an associate who lived in the country. The text told the associate, Mr Epiha, that he was on his way out to see him. Mr Epiha said that when Mr McHugh arrived he wanted to uplift a firearm and ammunition that Mr Epiha had been storing on Mr McHugh’s behalf.

[6] Mr Epiha said that after Mr McHugh had uplifted a .22 rifle and ammunition, he got back into the passenger seat of the vehicle in which he had arrived. I infer

from this that another person was driving the vehicle. The jury’s verdicts make it

clear that you must have been that person.

[7] Within two hours after this, you drove Mr McHugh to Mr Whatuira’s address. Your vehicle was observed outside on the street. Mr McHugh went into the address carrying the firearm. He was also partially disguised.

[8] The Crown accepts that you could not have known of the tragic events that were about to occur inside the address. Mr McHugh went into the address and demanded drugs and money from Mr Whatuira. Also present in the room with Mr Whatuira was a visitor, Mr Witere. Mr McHugh could not have known…

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 R v Dalrymple

Details

AGLC: R v Dalrymple [2015] NZHC 2391
Case: [2015] NZHC 2391
Decision Date: 1 October 2015

CaseChat Overview and Summary

The defendant, Barbara Dalrymple, was sentenced by the High Court of New Zealand in Gisborne for her involvement in a series of serious criminal activities, including aggravated robbery and being an accessory after the fact to a wounding with intent. Dalrymple had been found guilty by a jury of the charges arising from events that occurred during Easter Weekend in 2014. These events involved a planned robbery of a house in Gisborne, during which a firearm was used, resulting in the death of an individual. Dalrymple's role included driving her accomplice to and from the scene of the crime and assisting in the disposal of incriminating evidence.

The primary legal issues before the court were determining an appropriate starting point for sentencing on the charge of aggravated robbery, deciding on the uplift for the charges of being an accessory after the fact to wounding, and assessing the overall sentence in light of mitigating factors and the principles of totality. The court had to balance the principles of deterrence and denunciation with those of rehabilitation and reintegration, taking into account the Sentencing Act 2002.

The court began by considering the appropriate starting point for the charge of aggravated robbery, weighing the arguments presented by both the Crown and the defence. The Crown argued for a starting point of up to seven years imprisonment, citing the precedent set by R v Mako. The court acknowledged the precedent but also considered Dalrymple's lesser role in the crime compared to her accomplice. Ultimately, the court determined a starting point of four and a half years, reflecting her significant involvement but adjusting for her reduced culpability. For the charges of being an accessory after the fact, the court applied an uplift of two years, considering her proactive role in assisting her accomplice and the serious nature of her actions in disposing of evidence. The court then assessed the total sentence, applying principles of totality and reducing the sentence by nine months to ensure it was proportionate to her overall culpability. Mitigating factors, including her expressed remorse, good character, prospects for rehabilitation, and personal circumstances, were considered, resulting in a total discount of one year and three months. Consequently, Dalrymple was sentenced to four years and six months' imprisonment for the charge of aggravated robbery and 18 months' imprisonment for each of the accessory charges, to be served concurrently.

Orders