R v Dodds
[2024] NZHC 871
•19 April 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-090-1966
[2024] NZHC 871
THE KING v
DONNA MAY DODDS
Hearing: 19 April 2024 Appearances:
C Purdon for Crown
G Burns for Defendant
Sentence:
19 April 2024
SENTENCING REMARKS OF LANG J
Solicitors/counsel:
Meredith Connell, Office of the Crown Solicitor, Auckland G Burns, Auckland
R v DODDS [2024] NZHC 871 [19 April 2024]
[1] Mrs Dodds, you appear for sentence having pleaded guilty to a charge of wilfully attempting to pervert the course of justice.1 The maximum penalty for that offence is seven years imprisonment.
[2] You entered your guilty plea after I gave you a sentence indication on 20 February 2024 and that indication is going to, will be annexed to, and form part of, these sentencing remarks.
Background
[3] You pleaded guilty on the basis of an agreed summary of facts. This recorded that you are the mother of Mr Ethan Dodds who, together with Mr Julius Te Hivaka, has now been found guilty by a jury on a charge of murdering Mr Ben McIntosh, Benjamin McIntosh on the morning of 3 June 2022. The charge against you was laid because of an attempt that you made to mislead the police by giving them false information regarding the whereabouts, your son’s whereabouts on the day that Mr McIntosh was shot and fatally injured.
[4] The incident that led to Mr McIntosh’s death occurred after your son and Mr Te Hivaka arranged by text message to meet with Mr McIntosh at a park in Glen Eden early on the morning of 3 June 2022. The pretext for the meeting was that your son and Mr Te Hivaka wanted to purchase drugs from Mr McIntosh, who was a low- level drug dealer.
[5] Prior to going to the park to meet up with Mr McIntosh, your son and Mr Te Hivaka were at your house for a period of some hours. They left the address in a Ford Territory motor vehicle belonging to another of your sons. Your son Ethan was driving the vehicle and Mr Te Hivaka was in the passenger seat.
[6] At about 7.27 am, your son and Mr Te Hivaka arrived at the park where Mr Te Hivaka had arranged to meet with Mr McIntosh. When Mr McIntosh arrived approximately 20 minutes later Mr Te Hivaka got into the front seat of Mr McIntosh’s vehicle. The evidence at trial disclosed that your son got out of the vehicle a short
1 Crimes Act 1961, s 117(e).
time later and went to the rear of Mr McIntosh’s vehicle. He was carrying a .22 calibre firearm that had a bullet in the chamber. He had brought that weapon with him from your house. An exchange then occurred between your son and Mr McIntosh. The Crown case at trial, which the jury clearly accepted, was that it occurred in carrying out a plan by your son and Mr Te Hivaka to rob Mr McIntosh of money and drugs. The exchange resulted in the firearm being discharged. The bullet travelled through Mr McIntosh’s shoulder and then struck him in the head. He was still alive when emergency services arrived at the scene approximately thirty minutes later but attempts to save him were ultimately unsuccessful. He died two days later when life support was turned off.
[7]Your son and Mr Te Hivaka were captured on CCTV leaving the park at
7.49 am. During the journey back to your address your son contacted you to tell you that he needed to be taken out of town immediately. CCTV camera footage that the Crown adduced at trial showed your son arriving back at your address. He walked down the driveway carrying a bag that contained the firearm. Just two minutes later, you and your son Ethan got into your vehicle and left the address. You were also accompanied by your son who owned the vehicle that Ethan and Mr Te Hivaka had used to travel to and from the park. You then drove to Cambridge, where you rented a motel room. You remained with your sons at the motel in Cambridge until later that evening. You then drove back to Auckland, where your son met up with Mr Te Hivaka at a service station.
[8] The police executed a search warrant at your home address on 6 June 2022. Later the same day, you provided the police with a formal written statement in which you outlined your movements, and those of your son Ethan, on 2 and 3 June 2022. You told the police that you had left your home address with your two sons at about 9 pm on 2 June 2022 with the intention of travelling to New Plymouth. You got as far as a rest area in the Waikato before sleeping overnight in the vehicle. You said that you then arrived at Cambridge at about noon on 3 June 2022. You said you then checked into a motel in Cambridge on the afternoon of 3 June 2022. You said that the three of you ultimately decided not to travel through to New Plymouth and you returned to Auckland at about 1 am on 4 June 2022.
[9] The statement to the police was obviously false because you did not leave your address until the morning of 3 June 2022 after your son had already fatally injured Mr McIntosh. By your plea, you acknowledged you knew what had occurred and, through your statement to the police, you intended to mislead them as to your son’s whereabouts at the time of the shooting.
[10] The victim impact statements that have been presented at the Court demonstrate the devastating effect your son’s offending has had for Mr McIntosh’s family. You are obviously not responsible for the events that led to Mr McIntosh’s tragic death. However, his family make the very fair point that we should all know right from wrong and you failed to hold your son accountable for his actions. They also say that your deceitful actions have added to the anguish and suffering that they have been forced to endure.
Starting point
[11] I will not repeat the process by which I started a selecting point for your offending. The principal aggravating feature of the offending was that it constituted a premeditated attempt to obstruct a police investigation into a very serious crime. I considered it warranted a starting point of 18 months imprisonment. I added an uplift of three months to reflect the fact that you have a previous conviction for similar offending. This related to an incident that occurred in May 2019 when, at your son Ethan’s instigation, you attempted to dissuade witnesses from giving evidence against him after he had been charged with criminal offences.
[12] I indicated that a discount of three months was appropriate to reflect your guilty plea given the fact that your trial was due to commence in less than seven days’ time. This resulted in an indicated sentence of 18 months imprisonment. I noted that further discounts may be available at sentencing to reflect other mitigating factors identified in material provided at that point.
Other mitigating factors
[13] The pre-sentence report makes it clear that you have a relatively good work history, although you are not working at the present time. You lost your husband to
cancer in 2012 and this has obviously been difficult for you. The report records that although your journey in life has had its share of trauma and pain, you are a survivor. It also says that when it comes to your children you are extremely defensive and protective.
[14] The pre-sentence report also records one of your sons saying that you have a soft spot for the less fortunate and this trait is often taken advantage of by others. The report also says that you naively allowed your son to manipulate you. I am prepared to allow a discount of around 10 per cent or two months to reflect the personal issues that you have confronted in the past and the difficulties these have caused you.
[15] You have expressed remorse to the writer of the pre-sentence report and in letters your counsel provided me with this morning. However, these are negated to some extent by the fact that you have attempted to minimise your culpability. You told the report writer that you may have been confused regarding the dates and times when you gave a statement to the police. You say this may have been caused by the trauma and confusion caused occasioned by the police search that was conducted at your address on the day you gave your statement. I do not accept this explanation because you gave your formal statement to the police some hours after the search had concluded. It was, I was, I am also satisfied that it was carefully tailored to reflect the fact that you knew you had checked into a motel and Cambridge and that the police would be likely to discover that this was correct. I am satisfied that as your guilty plea demonstrates, you deliberately gave the police false information to deflect their investigation into Mr McIntosh’s death. However, I do accept that you have a degree of remorse. I am prepared to provide a discount of two months to reflect this factor.
[16] I am not prepared to provide a discount to reflect the fact that you were subject to restrictive bail conditions. The Court has a discretion to provide a discount to reflect this factor but it will generally only exercise it where the conditions in question are restrictive in nature. You were subject to a curfew between the hours of 7 pm and 7 am for a period of approximately three months between June and September 2022. Although I accept that you complied with this condition I do not consider it to have been sufficiently serious to justify a discount.
[17] I am therefore satisfied that an end sentence of 14 months imprisonment is appropriate. The issue I am now required to determine, and this has occupied the bulk of counsels’ submissions at sentencing, is whether this should be converted to a sentence of home detention.
Home detention
[18] The discretion to substitute a sentence of home detention for a sentence of imprisonment is both informed and fettered by the sentencing purposes and principles contained in the Sentencing Act 2002. Your counsel relies for his submission that home detention is appropriate on the sentencing principle that the Court must impose a sentence that is the least restrictive outcome appropriate in the circumstances.2 In applying this principle the Court must take into account the hierarchy of sentences set out in s 10A of the Sentencing Act. A sentence of home detention is obviously a less restrictive outcome than a sentence of imprisonment.
[19] I would have been attracted to that submission if this was the first occasion on which you were before the Courts for offending of this type. However, one factor I cannot ignore in the present context is the fact that you have been convicted on a previous occasion of very similar offending to the present. Notably, this resulted in you receiving a sentence of 12 months intensive supervision on 2 June 2022, the day before the events giving rise to the present charge. This sentence contained a condition requiring you to observe a nightly curfew at your address. The Crown pointed out to the jury in your son’s trial that you breached that curfew when you were absent from Auckland until the early hours of 4 June 2022. The breach of curfew is not a matter of great significance for present purposes. However, the fact that you were prepared to become involved in offending of this type on the day after you were sentenced for similar offending is a matter of real concern. It demonstrates that the imposition of a sentence of intensive supervision with associated conditions was no deterrent to you committing a further similar offence immediately thereafter.
[20] The Court is obviously hesitant to send a person to prison at 61 years of age when they have never served a custodial sentence in the past. However, I consider
2 Sentencing Act 2002, s 8(g).
that your willingness to re-offend in this way brings to the forefront the sentencing purposes of denunciation, deterrence and the need to hold you accountable for the harm that this type of offending does to the community.3 In particular, I consider that a sentence of imprisonment is necessary to make it clear to you that you cannot assist your children to evade detection or conviction if they commit criminal offences in the future. For this reason I am not going to convert the sentence to one of home detention.
Sentence
[21]If you would now stand please Mrs Dodds.
[22] On the charge of wilfully attempting to pervert the course of justice you are sentenced to 14 months imprisonment.
[23]Stand down.
Lang J
3 Sentencing Act, s 7(1).
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A
SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-090-1966
[2024] NZHC 241
THE KING v
DONNA MAY DODDS
Hearing: 20 February 2024 Appearances:
B D Tantrum for Crown G Burns for Defendant
Judgment:
20 February 2024
JUDGMENT OF LANG J
[Sentence indication]
R v DODDS [2024] NZHC 241 [20 February 2024]
[1] Ms Donna Dodds faces a charge of wilfully attempting to pervert the course of justice. Her trial is scheduled to commence in this Court on 26 February 2024.
[2] Ms Dodds seeks a sentence indication. This is an indication of the sentence she would receive if she was to enter a guilty plea to the charge in the near future. If Ms Dodds declines to accept the indication and is found guilty at trial, she will be sentenced on the facts as the trial Judge finds them to be.
Background
[3] The factual background for the purpose of the sentence indication is contained in an agreed summary of facts. This records that Ms Dodds is the mother of Mr Ethan Dodds. Mr Ethan Dodds and Mr Julius Te Hivaka are charged with murdering Mr Benjamin McIntosh on the morning of 3 June 2022. The Crown alleges Ms Dodds attempted to assist her son, and thereby wilfully attempted to pervert the course of justice, by providing a false statement to the police on 6 June 2022.
[4] The Crown will allege that the offending by Mr Ethan Dodds and Mr Te Hivaka occurred after Mr Te Hivaka messaged Mr McIntosh on the morning of 3 June 2022. The two men then arranged to meet at a park in Glen Eden. The Crown will say that the likely purpose of the meeting was to discuss or conduct a transaction involving the supply of drugs. At the time this arrangement was made Mr Dodds and Mr Te Hivaka were in each other’s company at M Dodds’ address in Hillsborough.
[5] The Crown will allege that Mr Dodds and Mr Te Hivaka left Ms Dodds’ address in the early hours of 3 June 2022 in a grey coloured Ford Territory motor vehicle. Mr Dodds was driving the vehicle and Mr Te Hivaka was in the passenger seat.
[6] At about 7.27 am, Mr Dodds and Mr Te Hivaka arrived at the park where Mr Te Hivaka had arranged to meet Mr McIntosh. The Crown alleges they got out of their vehicle and approached Mr McIntosh’s vehicle. They then opened the front passenger door of Mr McIntosh’s vehicle and one of them shot Mr McIntosh using a
.22 calibre firearm. The bullet struck Mr McIntosh in the back of his left shoulder before exiting his shoulder and entering the left side of his skull, lodging in his brain.
After the shot was fired Mr Dodds and Mr Te Hivaka immediately drove away from the scene at speed. They were captured on CCTV leaving the park at 7.49 am.
[7] A groundsman found Mr McIntosh slumped over in the driver’s seat of his vehicle approximately 30 minutes later. He was transferred to hospital in a critical condition and died of the gunshot wound two days later.
[8] On 6 June 2022, the police executed a search warrant at Ms Dodds’ home in Hillsborough. She was present at the address and spoke to the police officers when they arrived. Later the same day, she provided the police with a formal written statement. This contained a description of her movements, and those of her son Ethan, during the period before and after Mr McIntosh was shot in his vehicle at the park.
[9] In an interlocutory judgment delivered on 24 November 2022 Venning J described what Ms Dodds said to the police in her statement as follows:1
[6] Ms Dodds stated that at 9.00 pm on Thursday 2 June 2022 she left her home address with Ethan Dodds and her other son with the intention of travelling to New Plymouth. She said she and her sons travelled towards New Plymouth and slept in the vehicle in a rest area near Hamilton and Cambridge overnight. She said they arrived at Cambridge at about 12.00 pm on Friday 3 June 2022 and between 4.00 pm and 5.00 pm on Friday 3 June 2022 checked into accommodation in Cambridge. She could not recall the name of this accommodation, but stated it was near Cambridge Countdown. Ms Dodds said she remained in Cambridge and played the pokies at a local venue before returning to their accommodation. She stated that they decided not to travel to New Plymouth and at about 1.00 am on Saturday 4 June 2022 she left the lodge with her sons and returned to Auckland. Ms Dodds stated that they all then arrived back home between 4.00 am to 4.20 am on Saturday, 4 June 2022.
[7] Ms Dodds signed the statement confirming the truth and accuracy of it and acknowledging that it was to be used in Court proceedings, and that she was aware that it was an offence to make a false or misleading statement.
[8] Ms Dodds’ statement, if correct, provided an alibi for Ethan Dodds on the murder charge.
[10]Venning J went on to say:
[9] Police enquiries identified a closed circuit television camera (CCTV) fixed to the exterior of Ms Dodds’ house which captured the driveway area of her address. A search warrant was obtained to examine the CCTV. Police also
1 R v Dodds [2022] NZHC 3077.
identified the accommodation in Cambridge where Ms Dodds and her sons stayed. Ms Dodds had used a false name when paying for the room.
[10] Evidence from the CCTV at Ms Dodds’ house discloses that Ms Dodds’ statement was false. The CCTV showed Ms Dodds and Ethan arriving home in the early morning of 3 June. It then showed Ethan Dodds and his co- defendant leaving Ms Dodds’ property early on the morning of 3 June 2022 in the Ford Territory with Mr Dodds driving. The CCTV the shows the Ford Territory returning around 8.00 am, this time with Mr Dodds as a passenger. Then, it shows that Ms Dodds and Mr Dodds left the property shortly after
8.00 am on the morning of 3 June (within half an hour or so after the shooting).
[11] Ms Dodds was spoken to by Police again on 23 June 2022, this time in relation to a possible offence of perverting the course of justice. She was not able to provide a credible timeline of when she left Auckland. Ms Dodds then changed her statement and said she and Ethan may have left Auckland in the late evening on Thursday, 2 June or early hours on Friday morning, 3 June. She denied having any knowledge about the shooting or murder. She also denied assisting her son Ethan Dodds in any manner to avoid prosecution. She says she must have been mistaken about the day and date.
[11] Not surprisingly, the Crown alleges Ms Dodds deliberately gave the police the statement with the intention of thwarting their investigation into Mr McIntosh’s death and providing her son Ethan with an alibi for his whereabouts at the time of the shooting.
Starting point
[12] The Crown relies on several authorities in support of its submission that Ms Dodds’ offending should attract a starting point of 18 to 22 months imprisonment.2 Mr Burns relies on the same authorities to submit on Ms Dodds’ behalf that the offending warrants a starting point of no more than 15 months imprisonment.
[13] The aggravating feature of the offending is obviously that it was a premeditated attempt to obstruct a police investigation into a very serious crime. No attempt has been made to correct it even though Ms Dodds now knows the Crown can produce evidence to suggest it was false. I therefore consider it is broadly similar to the offending in R v MacFarlane, in which a false statement was given to the police but ultimately retracted.3 The Judge in that case said that for offending of this type a
2 R v McFarlane [2021] NZHC 1332; R v Thurgood HC Auckland CRI-2009-055-2162, 3 March 2011; R v McFarlane [2021] NZHC 2943.
3 R v MacFarlane [2021] NZHC 1332.
starting point between 18 months and two years imprisonment is generally appropriate.4 A starting point of 18 months imprisonment was selected in that case.
[14] I agree with the Crown’s assessment as to the range within which the starting point for Ms Dodds’ offending lies. I select a starting point of 18 months imprisonment.
Uplift for previous conviction for similar offending
[15] Ms Dodds has a previous conviction for similar offending. In 2019 she received a sentence of 12 months intensive supervision when she pleaded guilty to a charge of attempting to shield her son from criminal responsibility for other offending. I consider an uplift of three months is appropriate to reflect the fact that the earlier sentence was not sufficient to deter Ms Dodds from committing the present offence. This brings the sentence to 21 months imprisonment.
Discount for guilty plea
[16] Any guilty plea would obviously be extremely late given the fact that the trial is to begin in less than a week’s time. I nevertheless consider that a discount of three months is appropriate. The indicated sentence is therefore 18 months imprisonment. Further discounts may be available at sentencing to reflect other mitigating factors identified in material provided at that point.
[17] The end sentence obviously means that a sentence short of imprisonment is available. Mr Burns asks me to indicate that a sentence of home detention may be appropriate. I am not prepared to do that given the fact that Ms Dodds has a previous conviction for very similar offending. Whether or not a sentence of home detention is appropriate will largely depend on the material available at sentencing. I therefore propose to make no comment at this stage regarding the appropriateness of such a sentence.
4 At [10].
Time for acceptance
[18] Given the imminence of the trial it is not possible to give Ms Dodds three working days within which to decide whether to accept the indication I have given. If she accepts the indication, she will need to be arraigned later this week. Mr Burns will therefore need to file and serve a memorandum no later than 9 am on Thursday 22 February 2024 to advise the Court and the Crown whether the indication is accepted. If it is accepted, Ms Dodds will be arraigned before me on Friday 23 February 2024 at 9.45 am.
Lang J
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