R v Haywood-Dodd
[2019] NZHC 1612
•11 July 2019
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 1612
THE QUEEN v
CHAYCE HAYWARD-DODD
Hearing: 11 July 2019 Appearances:
S Barnaart for the Crown
JAG Moroney, on behalf of S Gray, for the Defendant
Judgment:
11 July 2019
SENTENCE OF GAULT J
Solicitors/Counsel:
Ms S Barnaart, Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei Ms S Gray, Barrister, Auckland
Mr J Moroney, Thode Utting & Co., Auckland
R v HAYWARD-DODD [2019] NZHC 1612 [11 July 2019]
[1] Mr Hayward-Dodd has pleaded guilty to one charge of being an accessory after the fact to manslaughter. His plea follows a sentence indication I gave on 12 June 2019.
[2] The offending is related to the killing of Mr Harris by Mr Nicky Dodd. In brief, Mr Dodd fired a shotgun towards a house where there were a number of people from a rival chapter of the Tribesmen motor cycle club. One of the pellets struck and killed Mr Harris. Mr Dodd is Mr Hayward-Dodd’s father. Immediately after the shooting, Mr Dodd drove to Mr Hayward-Dodd’s house and told him that he needed to leave his car parked around the side of the house where it was unlikely it would be found by police, and that he was leaving the shotgun at his house as he did not want to be travelling with it in the event of being stopped by police. Mr Dodd left his car there and concealed the shotgun inside. Mr Hayward-Dodd allowed this to happen.
[3] As there is very little in dispute, I annex my sentence indication to this sentencing and it will form part of it, so I do not repeat the background and how I came to the indicated sentence, except to say that I indicated a starting point of 15 months’ imprisonment, which, with a 20 per cent discount for a guilty plea, came to 12 months’ imprisonment. I also indicated that a non-custodial sentence would be likely if there were a favourable pre-sentence report and no cogent objections from the Crown. I did not address any discounts for mitigating features personal to Mr Hayward-Dodd at that stage. I will now address the pre-sentence report, the affidavits, and then come to the appropriate sentence.
[4] A favourable pre-sentence report was forthcoming, accompanied by affidavits from Mr Hayward-Dodd; his wife, Ms Tana; and his mother-in-law, Mrs Tana. Mr Hayward-Dodd seeks a sentence of community detention. The Crown accepts that is the appropriate sentence.
Pre-sentence report
[5] Mr Hayward-Dodd is 21 years old (he was 19 at the time of the offending). He is of Māori descent. He is married to Ms Tana, and they have three young children. He has no previous criminal convictions. He and Ms Tana have been together for seven years, and married for two. Although his father is a member of the Tribesmen,
he is not. He reports that he was sheltered from the gang as a child and had no involvement other than knowing other gang members. He also says there was no violence or abuse in the home.
[6] He left school after achieving NCEA level 1, being more interested in working and earning money. He worked as a contract painter until the current offending. At that time, he and his wife had saved enough money for a deposit on a house and were looking for one before the offending occurred.
[7] The report writer says Mr Hayward-Dodd presents as an open, honest and friendly young man with a philosophical attitude, who simply wants to go back to working and saving for a house. The writer assesses Mr Hayward-Dodd’s risk of harm and re-offending as low, and that there are no rehabilitative interventions needed. The writer concludes by recommending community detention, so that Mr Hayward- Dodd can resume working and supporting his family.
Affidavits
Mr Hayward-Dodd
[8] Mr Hayward-Dodd asks that I impose community detention so that he can support his wife and children. He says he has a job waiting for him at his uncle’s company. His uncle is aware of his conviction and wants to support him.
[9] He says if he was sentenced to home detention it would make life difficult for his wife, because she is still breast-feeding their youngest child, and would struggle to care for the children and run errands if he was confined to the house.
[10] He says the case has been very stressful for him and his family, and he lost his former job because his name has been widely publicised.
[11] He also acknowledges the tragic death of Mr Harris. His wife is related to Mr Harris. Mr Harris’s mother, Ms Harris, is here and a very compassionate victim impact statement has been read on her behalf. I acknowledge and thank her for being here today.
Ms Tana
[12] Ms Tana says Mr Hayward-Dodd is a loving father, who cares greatly for his children. She echoes her husband’s concern that it will be very difficult for her if he is sentenced to home detention. She also says the charges have been very hard for their family, and it has been hard to get by with Mr Hayward-Dodd being unemployed.
Mrs Tana
[13] Mrs Tana says she has known Mr Hayward-Dodd for five years. She says he has become a loved and respected member of their family, and he is a dedicated husband and father. He was bailed to her address and they have spent much time together. She says he has learned from his mistake and wants to move forward with his life.
The sentence
[14] As I have said, in the sentence indication I did not address any discounts for personal mitigating features of Mr Hayward-Dodd. The most obvious now would be a discount for youth and good character. This is his first conviction. While the nature of the offending is serious, he was subject to familial pressure, and did not actively assist in concealing the weapon. But nor did he report it.
[15] Considering the offending and Mr Hayward-Dodd’s previous good character, and his immediate family’s circumstances, I have come to the view that a sentence of community detention is appropriate.1 I consider this sentence adequately meets the need to denounce his conduct, deter others from behaving similarly, and promoting a sense of responsibility for the offending, and that it is the least restrictive outcome available in the circumstances.2 Mr Hayward-Dodd, I trust you live up to the support shown to you by your family and Ms Harris.
[16] The maximum sentence that may be imposed for community detention is six months.3 I would impose that sentence, given the seriousness of the offending.
1 Considering the factors in s 69C of the Sentencing Act 2002.
2 Sentencing Act 2002, ss 7-8.
3 Sentencing Act 2002, s 69B(2).
I consider that this sentence adequately recognises Mr Hayward-Dodd’s personal mitigating factors, and as such I do not address them in terms of discrete discounts to the sentence of imprisonment.
Formal sentence
[17]Mr Hayward-Dodd, please stand.
[18] On the charge of being an accessory after the fact to manslaughter, I sentence you to six months’ community detention.
[19] The sentence includes a curfew from 8:00 pm to 5:00 am at the specified curfew address.
[20]Stand down please.
Gault J
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 WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2018-488-34
[2019] NZHC 1320
THE QUEEN v
CHAYCE HAYWARD-DODD
Hearing: 12 June 2019 Appearances:
M B Smith for the Crown S Gray for the Defendant
Judgment:
12 June 2019
SENTENCE INDICATION OF GAULT J
Solicitors:
Mr M B Smith, Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei Ms S Gray, Barrister, Auckland
R v HAYWARD-DODD [2019] NZHC 1320 [12 June 2019]
Introduction
[1] Mr Hayward-Dodd is charged with accessory after the fact to manslaughter.1 He is accused of allowing a car and a shotgun, which were both used in an alleged manslaughter, to be concealed temporarily at his house by his father.
[2]He seeks a sentence indication.
Facts
[3]These alleged facts are agreed for the purpose of this sentence indication.
[4] The background to the alleged offending is a dispute between the Far North and Whangarei branches of the Tribesmen motor cycle club. Around dawn on 18 October 2016, a group of Far North members were at an address on Mower Road in Whangarei. They were both in and outside the house. A group of the Whangarei members went to the address to confront them. Words were exchanged between the two groups. Mr Nicky Dodd fired a shotgun from about 100 metres towards the Mower Road address. One of the pellets struck the victim, Mr Harris, in the chest. He later died.
[5] Immediately after the shooting, Mr Dodd drove his car, a black Holden Commodore, with the shotgun, to Mr Hayward-Dodd’s address. Mr Hayward-Dodd is Mr Dodd’s son. He was aged 19 at the time.
[6] Mr Dodd spoke to the defendant and told him that he needed to leave his car parked around the side of the house where it was unlikely it would be found by police, and that he was leaving the shotgun at his house as he did not want to be travelling with it in the event of being stopped by police.
[7] Mr Dodd concealed the shotgun in the defendant’s house. The car remained at the house until it was moved by a co-defendant several hours later.
1 Crimes Act 1961, ss 71 and 312. Maximum penalty seven years’ imprisonment.
[8] Later that morning the defendant exchanged messages with his partner, telling her not to talk to her sister about what happened that morning. He also called a work colleague and told him he was taking a few days off due to “family stuff going on”. He later told police that he went to work that day.
[9]The firearm was never recovered.
[10] Mr Hayward-Dodd has no previous criminal convictions. I have little further information and no pre-sentence report or cultural report that further explains his background at this stage. Such information will be properly addressed at sentencing, if Mr Hayward-Dodd pleads or is found guilty.
Approach to sentencing
[11] I must have regard to the purposes and principles of sentencing set out in the Sentencing Act 2002.2 In offending such as this, where the nature of the offending is quite serious but there is little direct harm to a person and it is the defendant’s first offending, the relevant purposes of sentencing are to denounce the conduct, and deter others from behaving similarly, but also to assist in the offender’s rehabilitation and reintegration. I must also take into account the general desirability of consistency with other sentences for similar offending and impose the least restrictive outcome that is appropriate in the circumstances.
[12] I adopt the normal sentencing process for this indication.3 First, I set a starting point, based on the characteristics of the offending and informed by sentences given in similar cases. Secondly, I would normally consider whether any of Mr Hayward- Dodd’s personal circumstances justify an adjustment to that starting point, up or down. As indicated, I do not yet have a pre-sentence report. As such, I will not address potential mitigating features personal to Mr Hayward-Dodd, such as remorse and good character. Thirdly, I consider whether Mr Hayward-Dodd should receive a discount if he were to plead guilty.
2 Sentencing Act 2002, ss 7–8.
3 R v Taueki [2005] 3 NZLR 372 (CA); and Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607.
Starting point
[13] There is no tariff case for accessory after the fact to manslaughter, reflecting the wide range of circumstances from which such a charge can arise. In R v Duff,
Lang J said:4
[T]he top end of the range is conduct that involves destruction of evidence so that a successful prosecution may be thwarted. At the other end of the scale is an isolated one-off incident in which some form of assistance is given to a fugitive.
[14] Courts generally adopt a starting point of one to two years’ imprisonment for offending of this kind.5
[15]The Crown identifies two aggravating features of the offending:
(a)Pre-meditation and planning6 – saying the defendant was aware that Mr Dodd was hiding his vehicle and firearm from the police. The defendant continued to assist him regardless.
(b)Gang involvement7 – the Crown says the defendant was aware of Mr Dodd’s gang connections.
[16] The defence submits there are no aggravating features besides those inherent in the offending itself. But they acknowledge that the evidence that was concealed was of significant evidential value.
[17] I do not consider pre-meditation and planning was present. On the summary of facts, Mr Hayward-Dodd had no knowledge that his father would come to hide the evidence at his house. Rather, it seemed spontaneous. I accept that Mr Hayward- Dodd allowed his father to hide the evidence after discovering why – at least to some extent – but I do not consider that this amounts to pre-meditation.
4 R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2012 at [11].
5 See R v Leach HC Wellington CRI-2006-085-4461, 27 October 2006; R v Duff HC Rotorua CRI- 2009-063-6473, 9 December 2012; R v Granich [2013] NZHC 2657; and R v Togiaono [2015] NZHC 2783.
6 Sentencing Act 2002, s 9(1)(i).
7 Section 9(1)(hb).
[18] I also do not consider gang involvement is an aggravating feature here. While it is true the wider offending here is a clear case of offending involving gangs, there is no indication in the summary of facts that the defendant is a member of a gang. It seems more that the defendant, on the summary of facts, was helping his father out of familial obligation, rather than out of obligation to any gang. The fact the defendant knew his father was a member of a gang, and likely knew his father’s offending, to the extent it was known, was gang related, does not in my view sufficiently engage this aggravating feature.
[19] The Crown submits there are no mitigating features of the offending. The defence submits that the fact the assistance took place over only a short time, that the assistance was temporary concealment, and that the defendant did not destroy evidence are mitigating features. The last cannot be said to be a mitigating feature, only that the offending could have been more serious. But I accept that the offending was over a relatively short period. In addition, the defence says it is a mitigating feature that Mr Hayward-Dodd would have felt “immense pressure” to comply with his father’s wishes, that the offending was not intentionally done to thwart prosecution, and that his father put him in a difficult position. I accept that Mr Hayward-Dodd was told his father was leaving the vehicle and weapon at his house. He did not volunteer to assist. I expect he felt he had little choice. Nevertheless, he still allowed a vehicle and weapon to be concealed on his property to evade police.
[20] Applying the claimed aggravating features, the Crown submits a starting point of 18 months’ imprisonment is warranted. The defence seeks a starting of point of between 12 and 15 months. Orally, Ms Gray suggested 12 months.
[21] I would place this offending somewhat near the lower end of the scale explained by Lang J. This is one-off assistance, but serious in that the defendant was helping to conceal evidence of a serious crime, although his level of knowledge is unclear on the agreed facts. After considering cases referred to me by counsel, I
consider a starting point of 15 months’ imprisonment is appropriate to reflect the deterrence and denunciation required.8
Personal features of the offender
[22] As indicated, at this stage I would normally consider whether any of Mr Hayward-Dodd’s personal characteristics warrant an adjustment to the starting point. The defence submit that Mr Hayward-Dodd is deserving of some discount to reflect his previous good character – i.e. that he has no previous convictions – and that publication of his name has already resulted in difficulty for him and his family. The defence submits that a discount of 15-20 per cent is appropriate to reflect this. I also note his age at the time of the alleged offending.
[23] At this stage I am not prepared to indicate any specific discount for mitigating features absent a pre-sentence report and other material that may become available should Mr Hayward-Dodd plead guilty. However, if such material is favourable to him, I would likely be prepared to give a discount of something in the region of what the defence submits, for personal mitigating factors.
Guilty plea
[24] The defence submit a discount for a guilty plea should be 20-25 per cent. They acknowledge that if Mr Hayward-Dodd was to accept this indication and plead guilty now, it would not be at the first opportunity. But they submit that it would be entered early after the charge was amended from accessory after the fact to murder. In these circumstances, I would be prepared to allow a discount of 20 per cent.9
8 The cases include Duncan v R [2013] NZCA 354; R v Graham HC Christchurch CRI-2004-009- 2224, 14 September 2004; R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2012; Boyd v R [2015] NZHC 822; and R v Doyle [2019] NZHC 856.
9 Considering the principles in the leading case Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Non-custodial sentence
[25] Ms Gray submits that, as the starting point is a short-term period of imprisonment,10 a sentence of home or community detention is available.11 This morning Ms Gray openly indicated she would be seeking community detention rather than home detention as Mr Hayward-Dodd has a job lined up. He is, I am told, a conscientious young father.
[26] The defence note Lang J’s comment in Duff that a person with no previous convictions could be considered as a candidate for home detention, and in that case Lang J did impose that sentence. They also cite several cases where community-based sentences have been imposed for accessory after the fact to murder or manslaughter.12 They say Mr Hayward-Dodd has a young family to support, so needs to be able to work.
[27] I am not prepared to indicate definitively today that I would sentence Mr Hayward-Dodd to a community-based sentence, whether community detention or home detention. I would want a pre-sentence report and perhaps supporting affidavits from Mr Hayward-Dodd and others first. However, if the pre-sentence report is favourable, and there were no cogent objections from the Crown, I consider that a non- custodial sentence would be likely, given Mr Hayward-Dodd’s lack of previous convictions, age and the nature of the offending. Whether that would be home detention or community detention would need to be decided at sentencing.
Conclusion
[28] The sentence indication is for a starting point of 15 months’ imprisonment, with a discount for a guilty plea of 20 per cent, which would bring the sentence to 12 months’ imprisonment. This could be further reduced to take account of mitigating features personal to Mr Hayward-Dodd, and there is a real possibility it could be turned into a non-custodial sentence.
10 As defined in s 4 of the Sentencing Act 2002.
11 Sentencing Act 2002, s 15A.
12 For example, R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2012; and R v Granich
[2013] NZHC 2657.
[29]This indication has effect until the expiry of five working days after today.
Gault J
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