DUDLEY TROUGH v R [2023] NZHC 3459

DUDLEY TROUGH v R [2023] NZHC 3459 [30 November 2023]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2023-442-000018[2023] NZHC 3459BETWEEN AARON SID ALEX DUDLEY TROUGHAppellantAND THE KINGRespondentHearing: 28 November 2023Appearances: M Zintl for AppellantM A O'Donoghue for RespondentJudgment: 30 November 2023JUDGMENT OF JOHNSTONE JThis judgment was delivered by me on atpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Nelson[1] In May and June 2022, Aaron Dudley-Tough was a member of theHead 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, andin one case, violence. When police searched his home, they found: a semi-automaticrifle; a sawn-off pistol; matching ammunition; stolen road signs; and personal usequantities of methamphetamine, LSD and cannabis plant. He later failed to providethe access code for the cell phone that had been seized from him, when required to doso under the Search and Surveillance Act 2012.[2] On 19 September 2023, Mr Dudley-Tough was sentenced in the Nelson DistrictCourt to a total of three years and three months' imprisonment.1 He appeals to thisCourt against that sentence.[3] I am required to allow Mr Dudley-Tough's appeal if satisfied that there is anerror in the sentence and a different sentence should be imposed. Otherwise, I mustdismiss the appeal.2 In most sentence appeals brought by a defendant, the appeal courtwill not intervene unless the sentence is manifestly excessive. Whether the sentenceis manifestly excessive is to be assessed in terms of the final sentence imposed, ratherthan 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, theuplifts for the other offending were too large, and the sentencing Judge failed toconsider 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 amountedto an aggravated robbery. Mr Dudley-Tough went with co-offendersLeslie Cunningham and Desmond Parata to a home on Appleby Highway, Tasman.Answering a door knock, their victim was immediately punched in the face andstomach. 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 whileMr Dudley-Tough sat with him in the lounge, making sure he did not leave. Theepisode took around 40 minutes, before Mr Dudley-Tough and his associates left withthe motorcycle, its immobiliser which had been taken from the victim's jacket, and hiswallet.[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 useof actual violence (albeit not premeditated), the "not insignificant" value of the stolenproperty, and that it was a gang stand-over with all three representing themselves asassociated with the Head Hunters.Mr Dudley-Tough's position[7] For Mr Dudley-Tough, Mr Zintl submits that the starting point for theaggravated robbery should have been no higher than three years' imprisonment. Hecites various authorities, including Norton v R, Nicholls v Police and Te Hau v R.4Mr Zintl observes: there is little difference between the involvement of two offendersin those cases and three in this case, but there were more victims in Te Hau; thisoffending occurred during the day; Mr Dudley-Tough did not participate in theviolence that was used, which occurred at the doorway to the victim's home ratherthan inside it; the value of the property taken was modest, and the motorcycle waslater recovered; the victim received minor injuries being a sore rib, left side and leftcheek; and while it was agreed these were gang taxings, there was no evidence ofMr 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 SinceMako, the Court of Appeal has observed that the home invasion provisions which were4 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 homeremains an aggravating factor for sentencing purposes.7[9] The range of conduct that can constitute aggravated robbery is wide. It is theparticular combination of the widely variable features of each case contributing to ordetracting from the seriousness of the conduct and the criminality involved whichrequires assessment.8 Mako factors of relevance to this case include:9(a) a degree of planning and preparation (here evidenced by the groupactivity and immediate violence) reflecting criminality;(b) the number of participants and their deployment which may reflectmore sophisticated or organised activity and may increase the degreeof intimidation and fear engendered among victims;(c) actual violence, taking the conduct into another dimension andattracting 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 involvingseparate 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 thevictim 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 theCrown 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 elementof premeditation, which together required to be reflected in the starting point.116 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, findinginstead that three-and-a-half years' imprisonment would have more accuratelyreflected the seriousness of the offending. This finding was made specifically on thebasis of the approach in other cases, "but moreover, because of the particularcircumstances of the present offending, including the limited value of the propertytaken".12[11] By comparison, in this case there were the additional features of a furtheroffender, the use of actual violence, the greater value of the property stolen, and thegang element.[12] I do not consider the other authorities cited for Mr Dudley-Tough to be ashelpful. In Te Hau, no challenge was made to the starting point. And in Norton andNicholls, the appeal court rejected challenges to starting points selected by lowercourts.[13] Overall, I consider the sentencing Judge's three-year, nine-month starting pointfor 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 on19 May 2022 gone with the same two co-offenders and a third man to a victim's housebus parked on a property off Cable Bay Road, Nelson. Their victim had proposeddealing with a financial arrangement involving Mr Dudley-Tough in a manner that itseems 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 accompaniedby a co-offender picking up, and gesturing with, the victim's axe. The victim's caravanwas entered so that the keys to the vehicle could be retrieved. Mr Dudley-Tough tookthe keys and drove away.[15] In respect of this offence of unlawfully taking a motor vehicle, the sentencingJudge 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 homein 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 pistolbroken down into three parts which, according to the summary of facts, could easilybe put back into working order. They found 26 rounds of .22 ammunition, two roundsof .410 ammunition, and a live shotgun shell. And they also found a total of 0.8 gramsof methamphetamine in three small ziplock bags, and two tabs of LSD and 55 gramsof cannabis, along with three stolen road signs.[17] The police seized Mr Dudley-Tough's cellphone on 8 June 2022, and unders 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 ofnine months' imprisonment for the unlawful possession of firearms and ammunition,and one-month uplifts for the drug possession charges, and for the receiving andfailing to assist search charges, respectively.Mr Dudley-Tough's position[19] Mr Zintl submits that the uplift for the firearms offending should not haveexceeded 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 betweenthe firearms charges and the other offending.Discussion[20] In Campbell v R, the Court of Appeal observed that "(a)lthough there are fewdecisions where starting points have been set on the basis that firearms offending wasthe lead charge, possession of a single firearm with no mitigating circumstancesgenerally calls for a starting point in the vicinity of two to three years".1313 Campbell v R [2022] NZCA 579 at [18].[21] I accept there is no suggestion Mr Dudley-Tough used his firearms whenengaging in the taxings. But if there were, the sentences for the latter offending wouldhave been greater.[22] In any event, given Campbell, the uplift of nine months' imprisonment in thiscase was to be relatively modest, given the location of two firearms and the apparentvolatility at the time of Mr Dudley-Tough's lifestyle. This is demonstrated by hisrecent engagement in the taxings, and his simultaneous possession of modest amountsof controlled drugs.[23] Overall, the uplifts for Mr Dudley-Tough's further offending were notexcessive.Was totality considered at the wrong stage?[24] Having arrived at an adjusted starting point for Mr Dudley-Tough's offendingof 62 months' imprisonment, the sentencing Judge applied credits of just over20 per cent for his guilty pleas and 10 per cent for his personal circumstances. Fromthat 43-month waypoint, there was a further reduction of four months for time spenton restrictive bail conditions. Finally, the Judge stood back from the end point of39 months' imprisonment, to consider the combination of offending, resolved that itwas 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 andJacobson v R,15 that the sentencing Judge erred by considering totality at the end ofthe sentencing process, rather than at the adjusted starting point stage prior toconsideration of personal features. He says that if totality is considered only at theend sentence stage there is a risk of a disproportionate response to offending beingmasked 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 andthe observation of Cooke J in Giles v R to the effect that the totality assessmentrequired by s 85 is an assessment that should be made at the end of the sentencingmethodology.16Discussion[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 appearsto be that totality is the last step in the sentencing process, following the applicationof personal factors.17 However, this is not a universal approach and there are examplesof assessment of totality being considered before personal factors.18[28] The thrust of the s 85 requirement that sentencing must reflect overallseriousness is particularly directed to occasions where cumulative sentences are underconsideration. It was in that context that Cooke J referred to the need for end stageassessment "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 assesstotality at the first stage. For example, it was appropriate in Polaapau because thesentencing exercise involved required careful consideration of the overall effect ofuplifts already determined in the Youth Court, in the context of additional DistrictCourt charges.[30] More particularly, I consider it unnecessary to express a view on the generalapproach 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 effectof the Judge not considering totality at the first stage. And in this case, the totality of16 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 valuableproperty was taken by multiple offenders threatening violence and in one case usingit, and culminated in the possession of two dangerous firearms with matchingammunition for each, together with controlled drugs and a bald refusal to comply withlawful direction to provide access to a cell phone. In my view, the adjusted startingpoint 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 totalityassessment 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