Walker-Dahlberg v R - [2020] NZCA 661

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA413/2020
[2020] NZCA 661

BETWEEN	TIANA MAREE WALKER-DAHLBERG Appellant
AND	THE QUEEN Respondent

Hearing:	4 November 2020
Court:	Clifford, Woolford and Mander JJ
Counsel:	N Levy QC for Appellant K S Grau for Respondent
Judgment:	18 December 2020 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of three years’ imprisonment is quashed and replaced with a sentence of two years and four months’ imprisonment.

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REASONS OF THE COURT

(Given by Woolford J)

Tiana Maree Walker-Dahlberg pleaded guilty as a party to a charge of aggravated burglary. On 3 July 2020, she was sentenced to three years’ imprisonment.[1] She now appeals against sentence as being manifestly excessive.

Factual background

[1]R v Walker-Dahlberg [2020] NZHC 1562 [Sentencing notes].

The principal offender was the appellant’s partner, Rex Ji Terangi Daley. Mr Daley is a member of the Nomads gang. On 2 December 2018, Mr Daley and the appellant were driven on two occasions by a third person, Aaron Takamore, another Nomads gang member, to an address in Masterton. They went there for the express purpose of confronting and threatening D-Jae Rhodes, a relative of the appellant’s former partner. The appellant’s former partner is a member of the Black Power gang. There had been some sort of altercation between the appellant and Mr Rhodes earlier that day.
Mr Daley was about six months out of a 13 year prison sentence and in the grip of a methamphetamine addiction and escalating mental illness.
At approximately 7.30 pm, Mr Daley, the appellant and Mr Takamore, together with associates in two other cars, arrived at Mr Rhodes’ address. All three vehicles tooted their horns. Mr Rhodes walked outside and saw Mr Daley, the appellant and Mr Takamore along with their associates parked on the street, in front of the address. Mr Rhodes then challenged Mr Daley to a fight on the front lawn. Mr Rhodes saw that Mr Daley was holding something, which he assumed was a bat. He saw Mr Daley tapping it against the front windscreen of the car in which he was seated. Mr Daley was however armed not with a bat, but with a sawn-off shotgun and a number of rounds of ammunition. Mr Daley yelled out to Mr Rhodes “I’m going to kill you motherfucker”, before the three cars drove away.
At about 9.00 pm, Mr Rhodes and other family members were standing outside, at the front of the address. They believed that Mr Daley, the appellant and Mr Takamore could return to the address for the purpose of a further altercation. They were looking out for the three cars. At that time, it was getting dark. Mr Rhodes saw a car appear on the street, park some distance away from the address and turn its lights off. Mr Daley, the appellant and Mr Takamore were in the car. They covered their faces with bandanas. Mr Daley got out of the…

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 Walker-Dahlberg v R

Details

AGLC: Walker-Dahlberg v R [2020] NZCA 661
Case: [2020] NZCA 661
Decision Date: 18 December 2020 at 10.30 am

CaseChat Overview and Summary

Tiana Maree Walker-Dahlberg appeals against her sentence of three years' imprisonment, imposed for her involvement as a party to an aggravated burglary. Walker-Dahlberg's appeal focuses on the severity of her sentence, contending it is manifestly excessive. The Court of Appeal allowed the appeal, reducing the sentence to two years and four months' imprisonment.

The legal issues before the Court of Appeal were the appropriateness of the starting point for the appellant's aggravated burglary offending and the adequacy of the discount applied for personal mitigating factors. The Crown argued that the starting point of five years for the principal offender should apply to Walker-Dahlberg, given her active encouragement of the principal offender, Rex Ji Terangi Daley, who entered an enclosed yard with a loaded sawn-off shotgun. The Court of Appeal found the starting point should be reduced by one year and six months to three years and six months, reflecting Walker-Dahlberg's lesser culpability compared to Daley but greater than the driver, Aaron Takamore. The Court of Appeal also found the discount of 33 per cent for the appellant's guilty plea, remorse, and time spent on restrictive bail was appropriate.

The Court of Appeal found that Walker-Dahlberg's personal circumstances, including her troubled upbringing and current mental health issues, did not warrant a more significant discount. The Court noted that while Walker-Dahlberg exhibited signs of remorse, they had been a long time coming. The Court concluded that the discount of 33 per cent was sufficient to reflect her personal circumstances.

The final orders of the Court of Appeal were that the appeal be allowed, the sentence of three years' imprisonment be quashed, and a new sentence of two years and four months' imprisonment be imposed, with the starting point being three years and six months' imprisonment discounted by 33 per cent for guilty plea, remorse, and time spent on restrictive bail.

Orders