R v Dodds
[2024] NZHC 1419
•31 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-090-001966
[2024] NZHC 1419
THE KING v
ETHAN DANE DODDS
Hearing: 31 May 2024 Appearances:
B D Tantrum and C Purdon for Crown
A J Maxwell-Scott and S Shanahan for Defendant
Sentence:
31 May 2024
SENTENCING REMARKS OF LANG J
Solicitors/counsel:
Meredith Connell, Office of the Crown Solicitor, Auckland Bloem & Associates/A J Maxwell-Scott, Auckland
R v ETHAN DODDS [2024] NZHC 1419 [31 May 2024]
[1] Mr Dodds, you appear for sentence having been found guilty by a jury on a charge of murder. Shortly prior to the commencement of the trial you entered a guilty plea to a charge of being in unlawful possession of a firearm.
[2] There is no dispute that you must receive a sentence of life imprisonment. The principal issue I am required to determine today is the length of the minimum term of imprisonment that you will be required to serve before being eligible to apply for parole.
Factual background
[3] I propose to sentence you on the basis of the facts as I find them to be, having been the Judge who presided over your trial.
[4] The victim of your offending was Mr Benjamin McIntosh. You knew who he was although it appears you had not met him before the events that led to his death on the morning of 3 June 2022.
[5] Mr McIntosh died after receiving a single gunshot wound that you inflicted on him using a .22 calibre rifle. The bullet initially entered his shoulder before leaving his upper torso and striking him in the head. It then lodged in his brain, causing a fatal injury.
[6] At the time you shot Mr McIntosh, he was seated in the driver’s seat of his vehicle. His vehicle was parked in the parking area at a park in West Auckland. Mr McIntosh had arrived there at about 7.50 am on 3 June 2022 in the belief that he was to sell to your co-defendant, Mr Julius Te Hivaka, a quantity of drugs. The evidence at trial confirms that Mr McIntosh was a relatively low-level drug dealer. However, in the hours before the events that led to his shooting, he had won a significant sum of money on a gaming machine. The evidence at trial satisfies me that you became aware of this at some stage during the previous evening. During this period, you and Mr Te Hivaka had spent a considerable amount of time in each other’s company and also in the company of your other co-defendant, Ms Tamirah Baker. Mr Te Hivaka and Ms Baker knew Mr McIntosh had won some money and I have no doubt that one of them gave you this information.
[7] A CCTV camera at your mother’s address captured you and Mr Te Hivaka returning to your mother’s address in Hillsborough at 5.18 am on 3 June 2022. You then spent approximately an hour at that address. By this stage Mr Te Hivaka had been in contact with Mr McIntosh and at some stage arrangements were made for him to meet with Mr McIntosh at the park later that morning.
[8] You and Mr Te Hivaka left your mother’s address at approximately 6.20 am. You were carrying a bag as you got into your brother’s vehicle. At trial you said you then drove to where you were living in Massey, before driving to the park. Your brother’s vehicle is captured on a CCTV camera arriving at the park at approximately
7.30 am.
[9] The same CCTV camera captured Mr McIntosh’s vehicle arriving at the entrance to the park at approximately 7.50 am. The camera then shows your brother’s vehicle leaving the park approximately 10 minutes later. During the intervening period, you had fatally wounded Mr McIntosh with a firearm you had taken to the park. Extensive efforts by emergency services and hospital staff over the next two days were unable to save his life.
[10] After leaving the park Mr Te Hivaka dropped you off at your mother’s address in Hillsborough and then drove away in your brother’s vehicle. Two minutes later you, your mother and your brother left the address in your mother’s vehicle and drove to Cambridge. You remained at a motel in Cambridge until late that night, when you returned to Auckland where you met up with Mr Te Hivaka and Ms Baker.
[11] You and Ms Baker subsequently stole two vehicles and drove one of them to Northland, where you remained staying with her relatives for several days. You were both eventually arrested on 9 June 2022 following a prolonged police pursuit. On that date you and Ms Baker had returned to the address where you had been staying and saw police cars there. Ms Baker then immediately sped away from the address, pursued by the police. She refused to stop despite several measures taken by the police to force her to do so. The police were eventually forced to stop the vehicle by running it off the road. When the police searched the vehicle, they discovered the .22 firearm that you had used to shoot Mr McIntosh in the back of the vehicle.
[12] At trial, the Crown alleged that you and Mr Te Hivaka had formulated a plan to rob Mr McIntosh of money and drugs and that Mr Te Hivaka lured him to the park for that purpose. You then fatally wounded Mr McIntosh during the robbery. When the police subsequently searched Mr McIntosh’s vehicle they did not find any cash or drugs inside it. Later that morning, however, you were in contact with Mr Te Hivaka and told him that if he did not hurry up you intended to consume his half share of the bag. I take this to be a bag of drugs.
[13] You gave evidence at the trial. You said you had travelled to the park with Mr Te Hivaka because you knew he was going to “score”. However, you denied the existence of any plan to rob Mr McIntosh of drugs and/or money. You said you had acquired the firearm that you took to the park some months earlier for protection after unknown persons had discharged shots at your house. You said you stored it at your mother’s address. You also said that before you left your mother’s address to go to the park you emptied the bullets out of the firearm and then put the unloaded firearm in a bag that you took with you when you left your mother’s address. You said that nobody else in the house, including Mr Te Hivaka, knew what you were doing with the firearm.
[14] I do not accept that you believed the firearm was unloaded when you went to the park. Neither did the jury. That is because they found that you and Mr Te Hivaka both knew that a reckless shooting was a probable consequence of carrying out the plan to rob Mr McIntosh. They could not have reached that conclusion unless they were sure you knew that you were taking a loaded firearm to the park.
[15] You also said that you took the firearm to the park because you wished to teach Mr McIntosh a lesson. You said you had heard that he had threatened somebody’s relatives and you decided that you would show him that that was not a good idea. I reject your evidence on this issue, as I am sure did the jury. I am satisfied beyond reasonable doubt that you took the firearm to the park with the intention of using it to scare Mr McIntosh into handing over any drugs and cash that he might have in his possession.
[16] I cannot be sure as to the exact sequence of events that led to Mr McIntosh being shot. You and Mr Te Hivaka both said that Mr Te Hivaka left your vehicle first
and went over to Mr McIntosh’s vehicle, where he got into the front passenger seat. That may well be correct. You said that you then got out of your vehicle and approached Mr McIntosh’s vehicle whilst concealing the firearm behind you. You said that you got into the back seat of the vehicle and started talking to Mr McIntosh. This may also be correct given the fact that your fingerprints were found in this area.
[17] You told the jury that after you produced the firearm Mr McIntosh made a movement towards it and it discharged. Your evidence was quite vague as to exactly how this occurred. The jury’s verdict makes it clear, however, that they were satisfied beyond reasonable doubt that you intentionally discharged the firearm.
[18] I consider it most likely that some form of struggle occurred after you entered Mr McIntosh’s vehicle and produced the firearm. At this point, you intentionally discharged the firearm in Mr McIntosh’s direction. However, the Crown did not contend at trial that you intended to kill Mr McIntosh. Rather, it alleged that you were reckless because you knew that you could kill him when you discharged the firearm but carried on regardless.
[19] The Crown also alleged that when you discharged the firearm you intended to cause Mr McIntosh grievous bodily injury for the purpose of enabling you to commit the offence of robbery. For present purposes, it does not matter which of the two alternatives the jury chose. However, it seems from one of the questions that the jury asked during their deliberations that they concluded you had agreed with Mr Te Hivaka to rob Mr McIntosh and to assist each other in doing so. I proceed on the basis that this is the likely route by which the jury found you guilty.
[20] You said that after you had shot Mr McIntosh you and Mr Te Hivaka immediately got out of Mr McIntosh’s vehicle and returned to your brother’s vehicle, which was parked nearby. Mr Te Hivaka then drove you away from the park. You said that before you left Mr McIntosh’s vehicle you took a bag Mr McIntosh regularly carried on his person. This contained drugs and, in all likelihood, cash.
[21] You said you threw the drugs out the window as you travelled to Cambridge in your mother’s vehicle. I do not believe that explanation. I consider it likely that these were the drugs that you were talking about to Mr Te Hivaka later the same day.
[22] Before sentencing, I received five victim statements from members of Mr Intosh’s family. During the hearing today, these were read in open Court. I consider these statements detail in graphic terms the devastating effect your offending has had on Mr McIntosh and his family. They have been left without a loved son, brother, father, nephew and family member. He will never get to see his young child grew up. He will never get to see his partner in future years and the effect on this family has been immeasurable.
Is s 104 of the Sentencing Act 2002 engaged?
[23] In any case where the Court imposes a sentence of life imprisonment on a charge of murder, it must also specify the minimum term of imprisonment the offender is required to serve before being eligible to apply for parole.1 This must be not less than ten years and must be the minimum term necessary to reflect the sentencing purposes of deterrence, denunciation, the need to hold the offender accountable for the offending and to protect the community from further offending.2
[24] In your case, the Crown contends that s 104 of the Sentencing Act 2002 is engaged. Section 104 requires the Court to impose a sentence of at least 17 years imprisonment where it is satisfied that the commission of the offence of murder engages one or more of the factors specified in the section. The Court may only impose a lesser minimum term of imprisonment where it is satisfied that it would be manifestly unjust to impose a minimum term of 17 years.
[25] The Crown alleges that s 104(1)(d) is engaged because the murder occurred whilst you were committing another serious offence. There is no dispute that an aggravated robbery is a serious offence for the purposes of s 104(1)(d).
1 Sentencing Act 2002, s 103(1)(a).
2 Section 103(2).
[26] I accept the Crown’s submission that s 104(1)(d) is engaged for this reason. Before determining whether it would be manifestly unjust to impose a minimum term of 17 years, it is necessary for me to consider what minimum term of imprisonment would be imposed but for the application of s 104.
What minimum term of imprisonment would be imposed but for the application of s 104?
[27] The Crown has provided me with several sentencing authorities that it says involve offending broadly similar to yours. Your counsel has provided me with authorities that she says support her submission that a starting point of 11 to 12 years imprisonment is appropriate.3
[28] All cases have different facts and for that reason they are only of assistance in identifying the range within which a minimum term of imprisonment is likely to fall. For that reason, I do not propose to refer to all the cases counsel have cited.
[29] I consider the offending in R v Lewis4, R v Lingman5 and Marteley v R,6 three of the cases cited by the Crown, to be more serious than the offending in your case. In those cases, starting points of minimum terms of imprisonment of 16, 15 and 14 years respectively were selected.
[30] One case in which the facts are reasonably comparable is R v Robinson, another case cited by the Crown.7 As in the present case, the offending in Robinson involved a plan to carry out an armed robbery to steal money and drugs. The offender entered the victim’s address and shot a male occupant who attempted to grab the firearm he was carrying. A female occupant then attempted to restrain the defendant and the victim went to help her. The offender fired a shot at the victim, fatally wounding him. The sentencing Judge selected a minimum term of 13 years imprisonment for the murder of the victim and added an 18-month uplift to reflect the wounding of the other victim.
3 R v Filoa [2022] NZHC 2461; R v Paewhenua [2018] NZHC 301; R v Te Tomo [2015] NZHC 2671; R v Yates [2018] NZHC 2600; R v Pilitati [2019] NZHC 3164.
4 R v Lewis [2018] NZHC 1877.
5 R v Lingman [2021] NZHC 1394.
6 Marteley v R [2016] NZCA 480.
7 R v Robinson [2021] NZHC 1605.
[31] The most serious aspect of your offending is that you committed murder whilst carrying out a robbery in which you knew a loaded firearm would be used to scare Mr McIntosh into parting with his property. That type of action always carries a significant degree of risk to third parties. You also intentionally discharged the firearm in the direction of Mr McIntosh in the knowledge that you may thereby cause his death. There was also considerable premeditation in planning the robbery. Your plan called for two people to confront Mr McIntosh in the sanctity of his own vehicle, which was parked in an isolated location.
[32] Importantly, however, the Crown has never alleged that the plan to rob Mr McIntosh also included a plan to kill him. Nor did the Crown allege at trial that you intentionally killed Mr McIntosh. For these reasons, I am satisfied that a minimum term of 13 and a half years imprisonment would be appropriate. That takes into account the fact that you were on parole at the time of your offending and had removed your electronic tracker and left your address without authority. You also retained the firearm for approximately six days following the murder.
[33] A minimum term of imprisonment may be reduced to reflect mitigating factors personal to the offender. You cannot claim any credit for previous good character because you have a lengthy list of previous convictions. These include convictions for aggravated burglary and assault with intent to rob. You have served several sentences of imprisonment between 2016 and 2021.
[34] Your counsel has tendered a cultural report under s 27 of the Sentencing Act. This shows that you suffer from several afflictions, and these have had a significant impact on your life. This has been coupled with substance abuse issues for which you have required treatment from any early age.
[35] You have been a member of a gang for some years now. It is likely that you became vulnerable to gang influence from the extremely dysfunctional home environment in which you grew up and the lack of pro-social factors in your life during your childhood and adolescence. You have numerous notations for offending that came before the Youth Court. Your involvement in criminal activity from an early age, coupled with your unstable home life, have resulted in you spending the majority
of your life either in state care or in prison. Your counsel advises me that you have rarely spent more than three months outside prison or a youth justice facility since the age of 11 years.
[36] I accept that there is a causal link between the dysfunctional and deprived nature of your upbringing and the events that led to the present charges. You also express some remorse for, and show a degree of insight into, the events that gave rise to these charges. However, in fixing a discount in this context I need to bear in mind that it is to be applied to a minimum term of imprisonment and not a finite sentence. It is therefore not possible to give effect to your counsel’s submission that you should At 25 years of age, you are also at the upper end of the range in which factors relating to youth offending apply.
[37]I would apply a discount of 18 months to reflect these factors.
[38] This means that, but for the operation of s 104, I would impose a minimum term of 12 years imprisonment.
Would it be manifestly unjust to impose a minimum term of 17 years imprisonment?
[39] In deciding whether it would be manifestly unjust to impose a minimum term of imprisonment of at least 17 years under s 104 it is necessary for me to stand back and determine whether your offending is of a type that Parliament contemplated should be caught by s 104. Two factors persuade me that it is not. First, the minimum term that I would ordinarily impose, using the process I have just described, would lead to the imposition of a minimum term of 12 years imprisonment. This is significantly below the minimum term required by s 104.
[40] More importantly, however, your offending does not involve a planned or intentional killing. Rather, it reflects a reckless killing carried out during an aggravated robbery. I have no doubt that situations will arise where such conduct will clearly fall within the ambit of s 104. In your case, however, I am satisfied that it would be manifestly unjust to require you to serve 17 years in prison before being eligible to apply for parole.
Sentence
[41]Mr Dodds, would you please stand.
[42] On the charge of murder, you are sentenced to life imprisonment. You are ordered to serve a minimum term of 12 years before being eligible to apply for parole. On the charge of being in unlawful possession of a firearm, you are sentenced to two years imprisonment. You are to serve both sentences concurrently.
[43]Stand down.
Lang J
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