Trough v The King

[2023] NZHC 3459

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 Judge adopted a starting point of three years, nine months’ imprisonment, citing the involvement of three men in the aggravated robbery, the use of actual violence (albeit not premeditated), the “not insignificant” value of the stolen property, and that it was a gang stand-over with all three representing themselves as associated with the Head Hunters.

Mr Dudley-Tough’s position

[7]    For Mr Dudley-Tough, Mr Zintl submits that the starting point for the aggravated robbery should have been no higher than three years’ imprisonment. He cites various authorities, including Norton v R, Nicholls v Police and Te Hau v R.4  Mr Zintl observes: there is little difference between the involvement of two offenders in those cases and three in this case, but there were more victims in Te Hau; this offending occurred during the day; Mr Dudley-Tough did not participate in the violence that was used, which occurred at the doorway to the victim’s home rather than inside it; the value of the property taken was modest, and the motorcycle was later recovered; the victim received minor injuries being a sore rib, left side and left cheek; and while it was agreed these were gang taxings, there was no  evidence of Mr Dudley-Tough and his associates being dressed at the time in gang clothing.

Discussion

[8]The guideline sentencing judgment for aggravated robbery is R v Mako.5 Since

Mako, the Court of Appeal has observed that the home invasion provisions which were

4      Norton v R [2012] NZCA 334; Nicholls v Police [2016] NZHC 1979; and Te Hau v R [2013] NZCA 431.

5      R v Mako [2000] 2 NZLR 170 (CA).

mentioned6 have been repealed, but a context of unlawful entry into a private home remains an aggravating factor for sentencing purposes.7

[9]    The range of conduct that can constitute aggravated robbery is wide. It is the particular combination of the widely variable features of each case contributing to or detracting from the seriousness of the conduct and the criminality involved which requires assessment.8 Mako factors of relevance to this case include:9

(a)a degree of planning and preparation (here evidenced by the group activity and immediate violence) reflecting criminality;

(b)the number of participants and their deployment which may reflect more sophisticated or organised activity and may increase the degree of intimidation and fear engendered among victims;

(c)actual violence, taking the conduct into another dimension and attracting a considerably higher rating in overall seriousness;

(d)gang involvement requiring to be taken into account; and

(e)of relevance later in assessing uplift, multiple offending involving separate incidents giving the criminality an added dimension.

[10]   Of the cases cited for Mr Dudley-Tough, Marsh v R10 is the most instructive. There, two men entered an apartment without invitation. A co-offender stood over the victim threatening him with a clenched fist. Around half a gram of methamphetamine,

$50 in cash, and a small sports bag were taken. The Court of Appeal observed the Crown was right to acknowledge the offending bore some similarity to a street robbery, but noted that the robbery occurred in a private dwelling place and involved an element of premeditation, which together required to be reflected in the starting point.11

6      Crimes (Home Invasion) Amendment Act 1999.

7      Poi v R [2020] NZCA 312 at [8].

8      R v Mako, above n 5, at [34].

9      At [36], [37], [43], [44], [45], [49] and [51].

10     Marsh v R [2019] NZCA 220.

11 At [12].

Overall, the Court found the starting point that had been adopted excessive, finding instead that three-and-a-half years’ imprisonment would have more accurately reflected the seriousness of the offending. This finding was made specifically on the basis of the approach in other cases, “but moreover, because of the particular circumstances of the present offending, including the limited value of the property taken”.12

[11]   By comparison, in this case there were the additional features of a further offender, the use of actual violence, the greater value of the property stolen, and the gang element.

[12]   I do not consider the other authorities cited for Mr Dudley-Tough to be as helpful. In Te Hau, no challenge was made to the starting point. And in Norton and Nicholls, the appeal court rejected challenges to starting points selected by lower courts.

[13]   Overall, I consider the sentencing Judge’s three-year, nine-month starting point for this aggravated robbery to be squarely within range.

Were the uplifts for the other offending too large?

[14]   Prior to the aggravated robbery of 2 June 2022,  Mr Dudley-Tough had  on  19 May 2022 gone with the same two co-offenders and a third man to a victim’s house bus parked on a property off Cable Bay Road, Nelson. Their victim had proposed dealing with a financial arrangement involving Mr Dudley-Tough in a manner that it seems did not suit them. She was told that they were taking her Holden Colorado ute, until such time as the arrangement was resolved. This observation was accompanied by a co-offender picking up, and gesturing with, the victim’s axe. The victim’s caravan was entered so that the keys to the vehicle could be retrieved. Mr Dudley-Tough took the keys and drove away.

[15]   In respect of this offence of unlawfully taking a motor vehicle, the sentencing Judge identified a six-month uplift in starting point.

12 At [17].

[16]   On 8 June 2022, police executing a search warrant at Mr Dudley-Tough’s home in Nelson found a semi-automatic .22 rifle, capable of holding more than 10 cartridges, in the garage next to his bedroom. They found a sawn-off .410 single shot pistol broken down into three parts which, according to the summary of facts, could easily be put back into working order. They found 26 rounds of .22 ammunition, two rounds of .410 ammunition, and a live shotgun shell. And they also found a total of 0.8 grams of methamphetamine in three small ziplock bags, and two tabs of LSD and 55 grams of cannabis, along with three stolen road signs.

[17]   The police seized Mr Dudley-Tough’s cellphone on 8 June 2022, and under   s 130 of the Search and Surveillance Act required him to provide access information. Mr Dudley-Tough declined to do so.

[18]   In respect of these offences, the sentencing Judge added a further uplift of nine months’ imprisonment for the unlawful possession of firearms and ammunition, and one-month uplifts for the drug possession charges, and for the receiving and failing to assist search charges, respectively.

Mr Dudley-Tough’s position

[19]   Mr Zintl submits that the uplift for the firearms offending should not have exceeded six months’ imprisonment, relying on the firearms being found unloaded, and the single shot pistol in three parts. He further notes the absence of nexus between the firearms charges and the other offending.

Discussion

[20]   In Campbell v R, the Court of Appeal observed that “(a)lthough there are few decisions where starting points have been set on the basis that firearms offending was the lead charge, possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years”.13

13     Campbell v R [2022] NZCA 579 at [18].

[21]   I accept there is no suggestion Mr Dudley-Tough used his firearms when engaging in the taxings. But if there were, the sentences for the latter offending would have been greater.

[22]   In any event, given Campbell, the uplift of nine months’ imprisonment in this case was to be relatively modest, given the location of two firearms and the apparent volatility at the time of Mr Dudley-Tough’s lifestyle. This is demonstrated by his recent engagement in the taxings, and his simultaneous possession of modest amounts of controlled drugs.

[23]   Overall, the uplifts for Mr Dudley-Tough’s further offending were not excessive.

Was totality considered at the wrong stage?

[24]   Having arrived at an adjusted starting point for Mr Dudley-Tough’s offending of 62 months’ imprisonment, the  sentencing  Judge  applied  credits  of  just  over  20 per cent for his guilty pleas and 10 per cent for his personal circumstances. From that 43-month waypoint, there was a further reduction of four months for time spent on restrictive bail conditions.  Finally, the Judge stood back from the end point of   39 months’ imprisonment, to consider the combination of offending, resolved that it was the least restrictive possible outcome, and imposed that sentence.

Mr Dudley-Tough’s position

[25]   Mr Zintl submits, by reference to the decisions in Polaapau v R14 and Jacobson v R,15 that the sentencing Judge erred by considering totality at the end of the sentencing process, rather than at the adjusted starting point stage prior to consideration of personal features. He says that if totality is considered only at the end sentence stage there is a risk of a disproportionate response to offending being masked by meritorious personal circumstances of the offender.

14     Polaapau v R [2020] NZCA 227.

15     Jacobson v R [2023] NZHC 1358.

Crown response

[26]   For the Crown, Mr O’Donohue relies on s 85 of the Sentencing Act 2002 and the observation of Cooke J in Giles v R to the effect that the totality assessment required by s 85 is an assessment that should be made at the end of the sentencing methodology.16

Discussion

[27]   I do not find that the Judge erred in considering totality at the end of sentence. The law on the timing of the totality assessment is unsettled. The usual course appears to be that totality is the last step in the sentencing process, following the application of personal factors.17 However, this is not a universal approach and there are examples of assessment of totality being considered before personal factors.18

[28]   The thrust of the s 85 requirement that sentencing must reflect overall seriousness is particularly directed to occasions where cumulative sentences are under consideration. It was in that context that Cooke J referred to the need for end stage assessment “given the cumulative effect”.19 This approach is consistent with the ‘usual’ approach.

[29]   Polaapau and Jacobsen are cases where it was considered appropriate to assess totality at the first stage. For example, it was appropriate in Polaapau because the sentencing exercise involved required careful consideration of the overall effect of uplifts already determined in the Youth Court, in the context of additional District Court charges.

[30]   More particularly, I consider it unnecessary to express a view on the general approach that should be taken to the timing of totality assessments. This is because, had I found the Judge to have erred, it would have been necessary to consider the effect of the Judge not considering totality at the first stage. And in this case, the totality of

16     Giles v R [2020] NZHC 2372 at [47].

17     R v Taylor [2007] NZCA 258 at [61]; R v Wu CA65/02, 18 June 2002 at [10]; and Webber v R

[2012] NZCA 594 at [25]

18     R v Levett CA437/05, 20 March 2006 at [17]; R v Clode [2008] NZCA 42, [2009] 1 NZLR 312 at

[57]; and R v Tamatea [2012] NZCA 443 at [19].

19     Giles v R, above n 16, at [47].

the offending spanned around three weeks, involved two gang taxings where valuable property was taken by multiple offenders threatening violence and in one case using it, and culminated in the possession of two dangerous firearms with matching ammunition for each, together with controlled drugs and a bald refusal to comply with lawful direction to provide access to a cell phone. In my view, the adjusted starting point of 62 months’ imprisonment reflects the overall seriousness of the offending, and is not out of proportion. Accordingly, the issue of the timing of the totality assessment is not significant to the determination of this case.

Result

[31]In light of the above, I am not satisfied a different sentence should be imposed.

[32]Mr Dudley-Tough’s appeal is dismissed.

Johnstone J