R v Doyle

[2019] NZHC 856

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-488-34

[2019] NZHC 856

THE QUEEN

v

BREZZIN ANNE DOYLE

Hearing:	17 April 2019
Appearances:	M B Smith and S Barnaart for Crown M Russell for Defendant
Judgment:	17 April 2019

SENTENCING REMARKS OF LANG J

R v DOYLE [2019] NZHC 856 [17 April 2019]

[1]    Ms Doyle, you appear for sentence today having pleaded guilty to a charge of being an accessory after the fact to manslaughter. I canvassed the facts of your offending fully in the sentence indication I gave on 13 March 2019.1 I do not propose to traverse those issues again. It is sufficient for present purposes to say that your offending occurred when you obeyed the instructions of your former partner and his associates to move a motor vehicle that had been used by a person involved in a fatal shooting. In doing so you actively hindered the police investigation because the vehicle was an obvious link to the identification of the shooter.

[2]    I selected a starting point of 12 months imprisonment for that charge. I indicated I was prepared to allow a discount of three months, or around 25 per cent, to reflect guilty pleas if you entered them. I also said I might be prepared to reduce the sentence further to reflect other mitigating factors revealed by any pre-sentence report.

[3]    I have now received a pre-sentence report and also a report assessing the suitability of your address for the purposes of an electronically monitored sentence. A sentence of nine months imprisonment is obviously well within the range of which home detention or other community-based sentences could be considered. I said that whether or not I was prepared to impose such a sentence would depend very much on the contents of the material I would receive prior to sentencing.

[4]    That material satisfies me not only that there is a suitable address at which you could serve an electronically monitored sentence but also that you are a person who qualifies for such a sentence. I acknowledge that you have had a very difficult life, and this has led to you offending in years past. Matters have not been helped recently by the fact that you tested positive for methamphetamine whilst on bail following the sentence indication being given. Notwithstanding this lapse, I am prepared to impose a sentence of home detention.

[5]    I am not prepared to countenance a sentence of community detention for two reasons. First, I do not consider it would be seen as a sufficiently deterrent sentence by those in the community who might be prepared to offend in a similar way in the future. Secondly, I have a concern that a sentence of community detention may leave

1      R v Doyle [2019] NZHC 427.

you open to further lapses such as that which occurred recently whilst you were on bail. I consider you need the full-time restriction of home detention, subject only to absences approved in advance by the EM monitoring authorities.

[6]    I note that the EM bail assessor’s report indicates that Oranga Tamariki has expressed a concern for the safety of the three year old who will be in your care. This is based largely, if not exclusively, on concerns held by that agency as a result of interactions they have had with you when you were with your former partner. You say that relationship has now ended, so there is no need for future concern. I am not sure whether the writer of the EM bail assessor’s report intended the Court to make a non- association order in relation to your former partner. I apprehend, however, that the corrections authorities themselves will impose that as a condition of your home detention. Should that not be possible, I reserve leave to the corrections authorities to return to the Court to ask that a specific condition be imposed.

[7]    A starting point of nine months imprisonment is roughly equivalent to a sentence of four and a half months home detention. I acknowledge that you have expressed insight into your offending. I also acknowledge that you have many good characteristics and that you could be a worthwhile member of the community in the future. Given the recent relapse with drug use, however, I am not prepared to reduce the indicated sentence further. I therefore propose to impose a sentence of four months two weeks home detention.

Sentence

[8]    On the charge to which you pleaded guilty, you are sentenced to four months two weeks home detention. That sentence is to be served at your nominated address to which you are now to proceed immediately by the most direct practicable route. The sentence of home detention will be subject to the remaining conditions identified in the EM bail assessor’s report dated 16 April 2019.

[9]Stand down.

Lang J

Solicitors:

Crown Solicitor, Whangarei

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

THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O ATOEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-488-34 [2019] NZHC 427

THE QUEEN

v

BREZZIN ANNE DOYLE

Hearing:  13 March 2019

Appearances:              M B Smith for Crown

M L Russell for Defendant

Judgment:                  13 March 2019

SENTENCE INDICATION OF LANG J

[1]                  Ms Doyle faces a charge of being an accessory after the fact to manslaughter. She originally faced a charge of being an accessory after the fact to murder, but Mr Nicky Dodd, the person originally charged with murder, was subsequently found guilty by a jury on a charge of manslaughter. A few days ago, I granted the Crown leave to amend the charge in relation to Ms Doyle to one of accessory after the fact to manslaughter rather than murder.

The charge

[2]                  The charge was laid as a result of an incident that occurred early on the morning of 18 October 2016. On that date Mr Nicky Dodd became involved in a verbal confrontation with members of a rival gang. This ended with him firing a single shot from a shotgun towards a group of rival gang members. A fragment struck one of those persons, Mr John Boy Harris, in the chest and he subsequently died of his wounds.

[3]                  Ms Doyle’s involvement in this incident came a short time after the shooting. The Crown case will be that Nicky Dodd drove his car to an address in Rose Place. He then left the vehicle there. At some stage at present unknown, but I take to be around 6.30 to 7 am, several persons arrived at Ms Doyle’s address. I interpolate to say that I have the benefit of both a summary of facts and also a transcript of a video interview in which Ms Doyle described to the police the events that occurred on the day in question.

[4]                  These people told Ms Doyle that John Boy was “over”. She was then instructed by these people and her partner to go to the address at Rose Place and to uplift the motor vehicle that had been left there. She complied with this instruction and took her two young children with her at her partner’s insistence. She then drove to the address in Rose Place. Whilst driving to the address she saw the emergency services attending the scene of the shooting. She was also able to see persons covered in blood and in states of distress.

[5]                  When Ms Doyle arrived at the address, she tried to move the motor vehicle. It became stuck on a kerb, however, and required considerable time and the assistance of neighbours to free it. Ms Doyle then drove the car a short distance before parking

it down a driveway in a position where it was concealed from the road. She told the police she had parked it in that position so it could not be seen from the road. She then sought further instructions by text message on a cellphone she had been given. She received a text in response telling her to go back to her house. When she arrived back at her house, she had an argument with her partner about what had happened. She then went on Google and discovered Mr Harris had died as a result of the incident that had occurred earlier that morning. I am satisfied this was the first she knew that Mr Harris had died. She told the police that, when she left her address to go to Rose Place, she believed that Mr Harris was critically hurt, probably as a result of a fight in which a stick or some other instrument had been used.

[6]                  Ms Doyle then received a text message telling her to put the keys to the vehicle in her letterbox. She complied with that request and some time later in the morning the keys were uplifted. The vehicle she had moved from Rose Place was later found in a burned out condition.

Starting point

[7]                  The starting point to be adopted for a sentence on a charge such as this will vary widely. It will vary according to the nature and seriousness of the act involved. The offender may have harboured a fugitive or hidden or destroyed the weapon used in the killing. Ms Doyle’s conduct does not go that far. Nevertheless, she played an important role in post-shooting events because she removed the vehicle from the location where Mr Dodd had left it. The vehicle was obviously an important link to the shooting because identification of the vehicle could lead to identification of Mr Dodd as the shooter.

[8]                  Both counsel have referred me to several cases involving offending of this type.2 These show that a starting point in the range of between one and two years imprisonment is commonly adopted.

2      R v Peter George Leach HC Wellington, CRI-2006-085-4461 27 October 2006; R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010; R v Granich [2013] NZHC 2657; R v Mahutoto HC Hamilton CRI-2009-087-000543, 14 May 2009; R v Togiaono [2015] NZHC 2783; R v Togiaono [2015] NZHC 2367.

[9]                  The Crown submits that a starting point of 18 months imprisonment is appropriate. Mrs Russell on Ms Doyle’s behalf contends that a starting point of 12 months imprisonment is warranted.

[10]              I consider mitigating aspects to Ms Doyle’s offending bring the starting point below that suggested by the Crown. In particular, I am satisfied she did not volunteer to move the vehicle. Rather, she was instructed to do so by her partner and the people who came to her house. I have no doubt she felt she had little choice but to comply with their demands.

[11]              Having said that, however, the Court must select a deterrent sentence. Otherwise those who seek to use innocent parties such as Ms Doyle to carry out tasks such as this will be encouraged to do so. I therefore adopt a starting point of 12 months imprisonment to reflect Ms Doyle’s overall culpability.

Aggravating factors

[12]              Ms Doyle has a number of previous convictions, but most of these are historic. None of them are relevant for present purposes. I therefore add no uplift to reflect aggravating factors personal to Ms Doyle.

Mitigating factors

[13]              The only mitigating factor I am prepared to take into account at this stage is that relating to a guilty plea if it was to be entered within short order. The guilty plea would not be entered early in the overall scheme of things, but it is certainly entered early after the reduction of the charge from one of murder to manslaughter.

[14]              It does not matter greatly whether a deduction of 20 per cent or 25 per cent is made, because the end result is the same once the figure is rounded up to the closest whole number. I propose to apply a deduction of three months to reflect a guilty plea if it was to be entered in the near future.

[15]              This would produce a sentence of nine months imprisonment. Ms Doyle would obviously be within the range of an electronically monitored or community-based

sentence. Much will depend, however, on the content of any pre-sentence report. I say this because Ms Doyle has a number of convictions for breaching sentences imposed by the Court. I acknowledge that these occurred approximately 20 years ago and are largely of historical value. Nevertheless, she will need to persuade the writer of the pre-sentence report that she would comply with the conditions of any sentence short of imprisonment.

[16]              I acknowledge also that there may be room for further allowance for other mitigating factors personal to Ms Doyle. I would need to see the pre-sentence report before I made any further adjustment to allow for these.

[17]              Mrs Russell is to file and serve a memorandum no later than Wednesday     20 March 2019 to advise the Court and the Crown whether Ms Doyle proposes to accept this indication. If she does, arrangements can be made for her to be arraigned shortly thereafter at a criminal callover.

Lang J

Solicitors:

Crown Solicitor, Whangarei