R v Dalrymple
[2015] NZHC 2391
•1 October 2015
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 DefendantSentence:
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 that Mr Witere was going to be at the address. Nor could you.
[9] Mr McHugh discharged the firearm virtually immediately after entering the room. The bullet passed through a couch on which Mr Whatuira was sitting and then passed through a wall and boundary fence. At that point Mr Witere asked Mr McHugh if he was really going to point the gun at them. Mr McHugh then pointed the gun at Mr Witere and pulled the trigger. The bullet struck Mr Witere between the eyes and in the forehead, leaving him with a fatal wound. Mr McHugh then escaped from the property, taking with him drugs and cash, whilst Mr Whatuira escaped through a window.
[10] You may not have been aware of what had happened until Mr McHugh returned to the car. But you must certainly have known when he returned that he had fired the rifle at Mr Witere and had hit him.
[11] The evidence suggests that at or about this point, Mr McHugh got out of the clothing he was wearing and put on fresh clothing. You then drove Mr Witere to an associate’s address. That associate was Mr Hedge. He recalls waking up when he heard knocking at the door. Through the window, he could hear two voices – one male and female. The jury’s verdict makes it clear that you were the female and that you had driven Mr McHugh to Mr Hedge’s address.
[12] Unknown to Mr Hedge, Mr McHugh took this opportunity to throw the rifle over the back fence of Mr Hedge’s property. Mr McHugh then spoke to Mr Hedge’s flatmate before the two of you left the scene.
[13] You and Mr McHugh were both arrested some hours later on the morning of
20 April 2014. The police could not prove that you had any involvement in the events at Mr Whatuira’s house and you were released at about 10.00 am that morning. From that point on, the evidence confirms that you had no opportunity to speak to Mr McHugh. As a result, you must be taken to have been acting on your own initiative during that period.
[14] On the morning of the following day you went back to Mr Hedge’s address. He had no idea at this time that the firearm had been left at his address. You told him that he needed to dispose of “that thing” that was over his back fence. When you referred to “that thing” you made a motion with your hand, similar to cocking a pistol. Mr Hedge took from this exchange that you wanted him to dispose of a firearm that was over the back fence of his property.
[15] After you left the address, Mr Hedge went to the back fence and discovered the .22 rifle lying in the area where you had said it would be. He then took the rifle to an associate’s house, where it was hidden. The police did not discover the firearm until approximately three months later, when Mr Hedge acknowledged his part in these events.
[16] After Mr Hedge returned from taking the firearm to his associate’s address, he found you in his driveway. You were carrying two bags containing clothing and shoes. You told Mr Hedge that you wanted him to dispose of these items. Mr Hedge travelled to Auckland later that day. During the return journey from Auckland, he threw the contents of the plastic bags out the window of his moving vehicle. He said that the bags contained clothing, shoes and .22 ammunition.
[17] The Crown relied on the evidence of Mr Hedge at trial in order to prove your involvement in these incidents. The Crown also called a Mr Austin, whose address
you visited approximately two weeks after the incident. It seems that you and Mr
Austin sat up all night consuming drugs and conversing.
[18] Some of these conversations were recorded by Mr Austin through his computer, and were played to the jury at trial. They make it clear that at that point you were anxious to “stand up for your man” and you expressed concern about the firearm that had been left at Mr Hedge’s property. I know that you consider the conversations were taken out of context. But in my view they demonstrate that you were still fully committed to Mr McHugh at that time, and you were anxious that the firearm not be discovered. There was also discussion between you and Mr Austin to the effect that you were concerned because Mr McHugh had not worn gloves when he went to Mr Whatuira’s property. There is even a suggestion in the evidence that you were considering going back to the property to wipe down the fingerprints.
[19] All of these things demonstrate that you were fully involved in both the robbery and the efforts that were made subsequently to cover it up.
[20] You have never accepted responsibility for your part in this offending. You maintain that you were not in the vehicle that went to Mr Epiha’s address to uplift the weapon, and you maintain that you were not the person who drove Mr McHugh to and from Mr Whatuira’s address.
[21] At trial, acting no doubt on your instructions, your counsel also challenged the evidence of Mr Hedge and Mr Austin on the basis that they were incorrect, or not telling the truth, in describing their interactions with you during the days that followed the incident leading to Mr Witere’s death.
Sentencing Act 2002
[22] In any case involving offending of this seriousness, issues of deterrence and denunciation are important. Although the Court must impose a sentence that provides for the rehabilitation of the offender and his or her reintegration into the community, it must also pass a sentence that is consistent with those imposed in other broadly similar cases. I say “broadly similar” because no two cases are ever the same.
Starting point
Aggravated robbery
[23] This is an important issue when I come to consider the starting point to be adopted in relation to the charge of aggravated robbery. The Crown and your counsel are a long way apart regarding this issue. The Crown submits that a starting point of up to seven years imprisonment should be imposed.
[24] Your counsel submits that the Court should find itself in a position to impose an end sentence of two years imprisonment so that a sentence of home detention can be considered. The Court would obviously need to adopt a starting point considerably lower than that suggested by the Crown to be able to impose that end sentence.
[25] The Crown relies on the decision of the Court of Appeal in R v Mako.1 Your counsel points out that this case was decided before the Sentencing Act 2002 was passed. He submits that Mako must now be viewed in light of the purposes and principles contained in the Sentencing Act. I accept that submission so far as it goes, but to the best of my knowledge Mako remains the guideline judgment of the Court of Appeal in cases involving aggravated robbery. It is routinely applied up and down the country every day when courts sentence persons who have been convicted of aggravated robbery. For that reason I am bound, in my view, to apply the principles and guidelines set out in Mako.
[26] The Crown relies on a passage from the Court of Appeal’s judgment as justifying a starting-point of at least seven years imprisonment. This passage reads as follows:
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, with violence against victims, where weapons are brandished even if no serious injuries are inflicted, would require a starting-point of seven years or more. Where a private house is entered the starting-point would be increased under the home invasion provisions to around 10 years.
1 R v Mako [2000] 2 NZLR 170 (CA).
[27] The home invasion provisions to which the Court of Appeal was referring in this passage have now been repealed, but the invasion of a private home is still regarded as a significant aggravating factor in any case of aggravated robbery.
[28] When sentencing Mr McHugh earlier today, I imposed a sentence of seven years imprisonment in relation to the charge of aggravated robbery. I considered that that was an appropriate sentence having regard to the principles contained in Mako, but making an adjustment for the fact that this offending did not involve a home invasion by more than one intruder.
[29] The Crown accepts that a starting-point of less than seven years imprisonment is appropriate in your case because you played a very different role to that of Mr McHugh. Nevertheless, Mr Walker submits that no great distinction should be made between the two of you. He submits that any reduction to reflect your reduced role in the offending should be modest.
[30] In order to assess your culpability I need to stand back and reflect on what it involved. First, it clearly involved the willingness to engage in a planned robbery of a house at night. It involved driving to a rural location to uplift a weapon. It then involved driving Mr McHugh back to the house where the robbery was to take place.
[31] The Crown submits that you must have known that the firearm was loaded or that Mr McHugh had ammunition in his possession. I do not consider that I can appropriately draw that inference. If the Crown had believed that it could prove that you knew of the existence of the ammunition, then no doubt it would have charged you as a party to Mr Witere’s murder because the killing of a human being was a clearly foreseeable consequence of an armed robbery involving a loaded firearm. The fact that the Crown never alleged that you had any criminal involvement in Mr Witere’s death means, in my view, that the Crown accepted that it could not prove that you knew the firearm was loaded. Nevertheless, there is no evidence to say categorically that you did not know it was loaded. The position therefore is that although you cannot be said to have known the firearm was loaded, you must have at least taken the risk that Mr McHugh had ammunition with him.
[32] I consider that your involvement in the ways that I have described mean that a significant sentence is required. It could certainly not be a sentence in the vicinity of three or so years, as I took your counsel to suggest. The fact that I have assessed Mr McHugh’s culpability as warranting a sentence of seven years imprisonment means that a significant adjustment is also required, however, to reflect the fact that he knew that he was taking a loaded weapon into the address with the probable intention of using it when you cannot be demonstrated to have had that knowledge.
[33] Taking those factors into account, I select a starting point of four and half years imprisonment on the charge of aggravated robbery.
Accessory after the fact
[34] The next issue is the uplift that needs to be applied in respect of the charges of being an accessory after the fact to wounding. The Crown did not charge you as an accessory after the fact to murder because it could not prove that you knew for certain that Mr Witere was dead at the time you drove Mr McHugh away from the address and then disposed of the firearm and clothing. This means that the charge that you face carries a penalty of five years imprisonment, whereas accessory after the fact to murder would have carried a sentence of seven years imprisonment.
[35] Several issues are relevant when fixing the uplift to be applied in relation to these charges. The first is that you were prepared, on no fewer than three occasions, to assist Mr McHugh either to leave the scene or to dispose of incriminating evidence, even where he was not exerting any direct influence over you. Secondly, two of the charges reflect the fact that you removed and disposed of property that could well have been of real value for forensic purposes. The firearm was obviously an important factor in the prosecution’s case. It was missing for approximately three months as a result of your actions. The clothing and ammunition have never been found. They were scattered to the winds by Mr Hedge on his return trip from Auckland. Both of those also had obvious evidential value.
[36] The Crown points out that the Judge who sentenced Mr Hedge adopted a starting-point of 18 months’ imprisonment to reflect his culpability in disposing of
the firearm and the other items.2 I consider that your offending is more serious than his because you were the instigator of the offending. Mr Hedge would never have become involved if you had not turned up at his place and told him to dispose of all the items. I consider that this offending warrants an uplift of two years imprisonment.
Totality
[37] Because I am imposing an uplift to another sentence, I need to stand back and consider whether or not the sentence should be reduced to take account of totality principles. This means that I need to be sure that the sentence I impose is not out of all proportion to the overall culpability of your offending.
[38] When I do that, I consider that a sentence of six and a half years imprisonment is slightly high. I propose to reduce that by nine months to reflect totality principles. This leaves me with a starting-point of five years nine months imprisonment before taking into account mitigating factors.
Mitigating factors
Remorse
[39] One of the mitigating factors that can be taken into account is that of remorse. You leave both your counsel and the Court in a difficult position regarding the issue of remorse. I say this because of your continued denial of your offending. One of the key components of remorse is acceptance of responsibility for offending and insight into its consequences. An offender who does not accept a jury’s verdict cannot be said to have insight into the offending or to have taken responsibility for it. Nevertheless, you have written a lengthy letter to the Court in which you express your heartfelt sorrow and remorse for the family of Mr Witere, who have suffered loss as a result of the incident in respect of which you clearly had some involvement. I find that I am able to take that into account but not to the extent that I would have in the event that you had been prepared to accept that you were the person who
committed the offences of which you have been found guilty.
2 R v Hedge [2014] NZHC 2892.
[40] I therefore propose to apply a discount of three months to reflect remorse.
Good character and rehabilitation
[41] There are two other mitigating factors in respect of which I also propose to apply a discount. The first of these is your previous good character, together with your prospects of rehabilitation. I have received numerous testimonials from relatives, friends and acquaintances who have known you in the past. They make it clear that you have been a good person in the past and that you have many fine qualities. That is demonstrated by the fact that, at the age of 39 years, you have never come before the Courts until now.
[42] It appears obvious that this offending has come about as a result of your involvement with Mr McHugh. That, in turn, has resulted in your becoming involved in a circle of acquaintances who consume drugs on a regular basis. The effect of that type of lifestyle is shown by the types of decision that you made on this particular night and the days that followed. It is a testimonial to the misery that drugs such as methamphetamine cause in many ways in our society.
[43] The Courts regularly recognise that previous good character is a mitigating factor that can be taken into account when imposing sentence. You are entitled to credit for the fact that you led a blameless life for approximately 37 years. Provided you acknowledge your offending and commit yourself to rehabilitation, there is no reason why you cannot play a useful part in the community in the future.
[44] I propose to apply a discount of six months to reflect these factors.
Personal circumstances
[45] The final factor in respect of which I propose to apply a discount relates to your personal circumstances. Originally the trial was due to commence in February 2015. That trial had to be aborted for reasons that I do not need to go into for present purposes. It was then rescheduled to commence on 20 July 2015. The difficulty with this change in arrangement, so far as you are concerned, is that by the
time of the trial you were in a very advanced state of pregnancy. That would not have been the case had the trial proceeded in February 2015.
[46] Once you were found guilty, you were remanded in custody for sentencing today. Difficulties then arose in arranging for transport to the Auckland Women’s Correctional Institute. Further difficulties arose when it was discovered that the prison authorities would not allow you to be admitted to the maternity unit because of the fact that you have been convicted of an offence that is subject to the “three strikes” legislation. Apparently the prison authorities take the view that persons convicted of such offences pose an unacceptable risk, both to others in the maternity unit and also to their children. As a result, another Judge of this Court granted you compassionate bail so that you were able to give birth to your child outside the prison environment. You have been on bail since that time.
[47] The relevance of this for present purposes is that at the conclusion of sentencing today you will be taken back to prison, your child will not be allowed to travel with you, and you will not be allowed to reside in the maternity unit with your child. You will only see your baby daughter on occasions when she is brought from Gisborne to Auckland.
[48] The Courts have recognised that in some situations offenders may find it more difficult to serve prison sentences than would ordinarily be the case. Common examples are persons who have a physical or mental infirmity that will make it more difficult to serve their sentence. Another example is where a foreign national will be required to serve a sentence in a prison in New Zealand when he or she does not speak English. The Courts recognise that a person in that position will find it more difficult to serve the sentence than would otherwise be the case.
[49] I consider that this is an issue the Court can recognise in concrete terms in the present case, because I have no doubt that you are going to find it much more difficult to serve your sentence by reason of the fact that you are separated from your baby daughter. I propose to allow a discount of six months to reflect that factor.
[50] This means I am left with discounts of one year three months from an end starting-point of five years nine months. It therefore means that you will be required to serve an effective term of imprisonment of four years six months.
Sentence
[51] On the charge of aggravated robbery you are sentenced to serve four years
and six months’ imprisonment.
[52] On each of the remaining charges you are sentenced to 18 months’
imprisonment.
[53] All of the sentences are to be served concurrently.
Lang J
Solicitors:
Crown Solicitor, Napier
Counsel:E R Fairbrother QC
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