R v Dods

Case [2021] NZHC 2666 6 October 2021

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-070-001645

[2021] NZHC 2666

THE QUEEN

v

BENJAMIN MARK DODS

Hearing: 6 October 2021

Appearances:

Benjamin Smith for the Crown

Thomas Harré and Xu Wang for the Defendant

Sentencing:

6 October 2021

SENTENCING REMARKS OF MOORE J

R v DODS [2021] NZHC 2666 [6 October 2021]

Introduction

[1] Mr Dodds, at the age of 30, you appear for sentence having pleaded guilty to three charges; manslaughter,1 conspiring to deal the class A controlled drug DMT2 and conspiring to deal the class B controlled drug MDMA otherwise known as ecstasy.3

[2] Before I go further, I wish to formally acknowledge the presence at this sentencing of the family and friends of Ui Phonphong because they represent a very important part of this process. I particularly refer to Mr Phonphong’s wife, Minyi and his two daughters, as well as Mr Phonphong’s father, mother and siblings.

[3] I am sorry that the present COVID travel restrictions mean that I am unable to be with you in person in the courtroom.

[4] However, despite the restrictions preventing that course, the process of sentencing remains a public one. The law requires that sentencing be undertaken in open Court. The essential public nature of sentencing requires me to discuss the relevant facts and other material which has been referred to me, despite the fact that much of what I shall say will be well known to most of you.

[5] I shall start by giving those present in Court something of a road map, so you are able to follow the process I shall be adopting.

[6] After those introductory comments, I shall start with a description of the facts which will cover not only what happened that evening in mid-January this year, but also the effect it has had on the family and friends of the man you killed, Mr Dods.

[7] I shall then calculate what is referred to as the starting point; that is what notional sentence should be imposed for all of your offending (that is both the manslaughter and the drug charges) before your personal circumstances are taken into account. In doing that I shall consider the caselaw as it relates to my assessment of

1      Crimes Act 1961 ss 158, 160(2)(a) and 172. Maximum penalty life imprisonment.
2      Misuse of Drugs Act 1975 s 6(2A)(a). Maximum penalty 14 years imprisonment.
3      Section 6(2A)(b). Maximum penalty 10 years imprisonment.

the aggravating and any mitigating aspects of your offending, and apply those to the facts of this case.

[8] Then I shall examine your personal circumstances. In your case, that will involve the extent to which those factors operate in mitigation by reducing the starting point.

[9] The end result of that process should lead to the final sentence which I shall double check, on a totality and culpability basis, to ensure what I have ended up with is appropriate in all the circumstances.

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 Dods

Details

AGLC: R v Dods [2021] NZHC 2666
Case: [2021] NZHC 2666
Decision Date: 6 October 2021

CaseChat Overview and Summary

In the case of R v Dods, the court was required to determine the appropriate sentence for the defendant, Benjamin Mark Dodds, who pleaded guilty to charges of manslaughter, and conspiracy to deal in controlled drugs. The primary legal issues involved calculating the starting point for sentencing based on the severity of the defendant's offending, and assessing the mitigating and aggravating factors related to both the offence and the defendant's personal circumstances. The court had to consider the impact of the defendant's actions on the victim's family and friends, and balance this against any mitigating factors presented by the defence.

The court found that the defendant's driving was a significant aggravating factor, as he had driven in a persistent and deliberate manner while under the influence of alcohol and drugs, and without adequate sleep. Additionally, the court considered the defendant's prior convictions for careless driving, but determined that no uplift was necessary due to their historical nature. The court also recognised the defendant's early guilty plea, genuine expressions of remorse, and his troubled upbringing as mitigating factors. After applying the appropriate discounts and considering the totality of the circumstances, the court sentenced the defendant to four years and eight months' imprisonment, with a three-year disqualification from driving upon release. The court also declined to make a reparation order due to the defendant's inability to pay.

The final orders of the court were that the defendant, Benjamin Mark Dodds, be sentenced to four years and eight months' imprisonment for manslaughter, and six months' imprisonment for each drug charge, to be served concurrently. The driving disqualification period was set at three years, to commence upon the defendant's release from prison. No reparation order was made.

Orders