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Trough v The King

Trough v The King

Case [2023] NZHC 3459 30 November 2023

Aggravated Robbery

Firearms Offences

Drug Offences

Unlawful Taking of Motor Vehicles

Sentencing

Totality Principle

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2023-442-000018

[2023] NZHC 3459

BETWEEN
AARON SID ALEX DUDLEY TROUGH

Appellant

AND

THE KING

Respondent

Hearing: 28 November 2023

Appearances:

M Zintl for Appellant

M A O’Donoghue for Respondent

Judgment:

30 November 2023

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on at pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Nelson

DUDLEY TROUGH v R [2023] NZHC 3459 [30 November 2023]

[1] In May and June 2022, Aaron Dudley-Tough was a member of the Head Hunters gang. He took part in two episodes of what is known as “gang taxing”, involving group entry into residential dwellings, the unlawful taking of vehicles, and in one case, violence. When police searched his home, they found: a semi-automatic rifle; a sawn-off pistol; matching ammunition; stolen road signs; and personal use quantities of methamphetamine, LSD and cannabis plant. He later failed to provide the access code for the cell phone that had been seized from him, when required to do so under the Search and Surveillance Act 2012.

[2] On 19 September 2023, Mr Dudley-Tough was sentenced in the Nelson District Court to a total of three years and three months’ imprisonment.1 He appeals to this Court against that sentence.

[3] I am required to allow Mr Dudley-Tough’s appeal if satisfied that there is an error in the sentence and a different sentence should be imposed. Otherwise, I must dismiss the appeal.2 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached. 3

[4] Mr Dudley-Tough’s argument is that his sentence is manifestly excessive, because the starting point for the lead charge of aggravated robbery was too high, the uplifts for the other offending were too large, and the sentencing Judge failed to consider totality at the appropriate stage.

Was the starting point for the aggravated robbery too high?

[5] The second “gang taxing” episode took place on 2 June 2022, and amounted to an aggravated robbery. Mr Dudley-Tough went with co-offenders Leslie Cunningham and Desmond Parata to a home on Appleby Highway, Tasman. Answering a door knock, their victim was immediately punched in the face and stomach. Mr Dudley-Tough demanded the keys for the victim’s Victory motorcycle.

1      R v Dudley-Tough [2023] NZDC 20429.
2      Criminal Procedure Act 2011, s 250.
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].

Mr Cunningham and Mr Parata ransacked the victim’s bedroom while Mr Dudley-Tough sat with him in the lounge, making sure he did not leave. The episode took around 40 minutes, before Mr Dudley-Tough and his associates left with the motorcycle, its immobiliser which had been taken from the victim’s jacket, and his wallet.

[6] The sentencing…

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 Trough v The King

Details

AGLC: Trough v The King [2023] NZHC 3459
Case: [2023] NZHC 3459
Decision Date: 30 November 2023

CaseChat Overview and Summary

The case involves Aaron Dudley-Tough, who was a member of the Head Hunters gang and engaged in "gang taxing" activities, including unlawful vehicle takings and violence. He was sentenced to three years and three months’ imprisonment in the Nelson District Court. Dudley-Tough appeals against his sentence. The High Court must determine whether the sentence is manifestly excessive and if a different sentence should be imposed. The key legal issues revolve around the appropriateness of the starting point for the aggravated robbery charge, the size of the uplifts for other offenses, and the timing of the totality assessment in the sentencing process. The court considered that the starting point for the aggravated robbery charge was within the appropriate range, taking into account the gang involvement, use of violence, and the value of the stolen property. The uplifts for other offenses were also deemed appropriate, particularly in light of the possession of dangerous firearms and controlled substances. The timing of the totality assessment was found not to be significant as the overall seriousness of the offending was accurately reflected in the sentence. Consequently, the appeal is dismissed, and the original sentence stands.

Orders