DAWSON v NEW ZEALAND POLICE [2021] NZHC 2340

DAWSON v NEW ZEALAND POLICE [2021] NZHC 2340 [8 September 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2021-463-000068CRI-2021-463-000069[2021] NZHC 2340CHASE DAWSONvNEW ZEALAND POLICEHearing: 6 September 2021Appearances: A Schulze for the AppellantS Bird for the CrownJudgment: 8 September 2021JUDGMENT OF WALKER JThis judgment was delivered by me on 8 September 2021 at 3 pmRegistrar/Deputy RegistrarIntroduction[1] Chase Dawson appeals his sentence of three years and six months'imprisonment imposed in the Rotorua District Court on 4 June 2021 in respect of thefollowing charges:(a) robbery;1(b) burglary;2(c) conversion of a vehicle;3(d) driving while disqualified;4(e) theft (x 4);5(f) breach of bail (x 3);6 and(g) obtaining by deception.7[2] Mr Dawson pleaded guilty to all charges. He argues that the sentence imposedwas manifestly excessive. He contends that the starting point of four years'imprisonment was too high, that a 15 month uplift for the remainder of the chargeswas excessive bearing in mind the principle of totality and that the 15 per centallowance for personal mitigating factors was inadequate.[3] I turn now to the offending.1 Crimes Act 1961, s 234(1).2 Section 231(1)(a).3 Section 226(1)(a).4 Land Transport Act 1998, s 32(1)(a).5 Crimes Act, ss 219 and 223(d).6 Bail Act 2000, s 38(a).7 Crimes Act, ss 240 and 241.The offending[4] Mr Dawson does not dispute these facts. I deal principally with the charges ofrobbery, burglary and conversion as these are the most important for the purposes ofthe appeal.[5] At approximately 3.00 pm on 17 October 2020, the victim was in his garden athis home address in Rotorua. He was recovering from a recent operation at home.The victim and the defendant are unknown to one another.[6] The victim heard a car driving up his driveway and walked towards theapproaching vehicle to investigate. The vehicle stopped and Mr Dawson got out. Hewas wearing a grey hoodie which was pulled over his head, grey sweatpants, and a redface mask covering his whole face apart from his eyes.[7] Mr Dawson approached the victim and demanded, "Where is it? Give it to us,you have it, you know where it is." A second person then got out of the vehicle. Thevictim did not know what Mr Dawson was talking about. Mr Dawson became angryand hit the victim in the head. The victim stumbled from the impact. He was thenstruck again to the back of his neck/head. This caused him to lose consciousness andfall to the ground. He was then dragged by Mr Dawson and his associate into thegarage.[8] The victim was passing in and out of consciousness as he watched Mr Dawsonlook through his wallet. Mr Dawson took the wallet, the victim's cell phone and thewatch off his wrist.[9] Mr Dawson then walked into the house and saw the victim's 12 year oldstepson. Mr Dawson was surprised and asked the stepson if he had a phone—to whichthe stepson replied that he did. Mr Dawson took the phone which was located in abedroom.[10] Mr Dawson and his associate took a number of other items from the house. Intotal they took a television, a cell phone, a power bank, a pair of sunglasses, a walletcontaining $60 and 30 grams of tobacco. Mr Dawson and his associate loaded theseitems into the victim's vehicle which was parked in the driveway. They then leftseparately in the victim's vehicle and the car that they arrived in.[11] The victim's vehicle and watch were returned to him by Police. The total valueof outstanding items is $4,690.[12] As to the remainder of the charges, it will suffice for present purposes to saythat three of the thefts concerned Mr Dawson driving away from petrol stationswithout paying for petrol and the obtaining by deception charge involved him failingto pay for one night's accommodation at a motel. The fourth theft charge related totaking two sets of keys and linen from that motel. The charges of driving whiledisqualified and breach of bail do not require further elaboration.District Court decision[13] The District Court Judge imposed a starting point of four years' imprisonmenton the lead charge of robbery which he saw effectively as a home invasion. It involvedMr Dawson being disguised, accompanied by another person, and striking the victimin the head causing him to lose consciousness. The Judge considered there was a levelof premeditation and planning to the offending. From that starting point he applied anuplift of 15 months for the remaining charges. This equated to a total of 63 monthswhich he then adjusted downwards to 55 months (four years and seven months) toreflect the principle of totality.[14] The Judge then awarded what he described as "significant credit" forMr Dawson's expressed commitment to leave behind his gang life and rehabilitate.He had also entered guilty pleas at a relatively early stage. The Judge accordinglyallowed a discount of 15 per cent for personal mitigating factors and the full 25 percent for guilty pleas. However, an uplift of six months was then applied to reflectMr Dawson's significant number of previous convictions, including some 25convictions for dishonesty offending. An additional uplift of three months was appliedto recognise that Mr Dawson was on bail when most of the recent offences werecommitted. This was stated to be in line with the approach of applying mitigatingcircumstances to the adjusted starting point and adding on uplifts for previousoffending.8[15] The end sentence imposed was three years and six months' imprisonment.9Legal principles[16] To succeed on an appeal against sentence the appellant must satisfy the courtthat there has been an error in the imposition of the sentence and that a differentsentence should be imposed.10 In all other cases, the court must dismiss the appeal.11It is not for the appellate court to simply substitute its own view for that of the originalsentencing judge.12 If the sentence is within the range that can properly be justifiedby accepted sentencing principles, the court will typically dismiss the appeal.13 It willonly intervene and substitute its own view if the sentence is manifestly excessive orwrong in principle.14 The focus is on the final sentence imposed rather than theprocess by which that sentence was reached.15Submissions[17] Mr Schulze, for Mr Dawson, submits that the District Court Judge's startingpoint of four years was coloured by his reading of an earlier iteration of the summaryof facts, prepared when Mr Dawson was facing a charge of aggravated robbery. Bythe time of sentencing he no longer faced that charge and the agreed summary for thepurposes of sentencing had been redrafted. Mr Schulze submitted that the correctapproach is to have regard to the guideline judgment for aggravated robbery of R vMako and then to apply a 30 per cent discount to reflect the fact that the offence is notaggravated robbery but robbery. He contended that the cases of Jensen v New ZealandPolice16 and Sorensen v R17 are closest to the scenario at hand and that a starting point8 At [27].9 Among other concurrent sentences, including a 12 month period of disqualification.10 Criminal Procedure Act 2011, s 250(2).11 Section 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].13 At [36].14 At [30]–[35]. See also Te Aho v R [2013] NZCA 47 at [30].15 Tutakangahau, above n 12, at [36].16 Jensen v New Zealand Police [2020] NZHC 726 citing Skipper v R [2011] NZCA 250 at [28].17 Sorensen v R [2020] NZHC 2982.of two and a half years' is a more appropriate response to the robbery charge.18 Anadjusted starting point of three years would then reflect the interrelated charges ofburglary and conversion of a vehicle.[18] Mr Schulze submits there is likely to be an element of double counting in theuplifts applied by the Judge. He argues that the uplift of 15 months, once adjusted fortotality amounted to an uplift of 11 months despite the fact that the offending was atthe lower end of the spectrum and that there appears to be some double counting bythe imposition of a further six month uplift for personal aggravating features includingconviction history and three months for offending on bail. I note that the three monthuplift for offending on bail was not subject to the applicable discounts because it wasapplied at the second stage of the sentencing analysis, but no issue was taken with thesequence adopted by the Judge.[19] Mr Schulze submits that given the nature of the other offending, an effectivelycumulative sentence of no more than nine months is warranted.[20] Mr Schulze refers to the significant disadvantages and trauma in Mr Dawson'slife warranting a personal mitigation discount. Mr Dawson has a significant drug debtdue to methamphetamine use. The offending was a means of reducing that debt.Mr Schulze contends that Mr Dawson's genuine desire to take stock of his life anddeal with his addiction, his commitment to rehabilitate and, importantly, todisassociate from the Head Hunter gang warrants a discount of no less than 20 per centrather than the 15 per cent afforded by the sentencing Judge. He urges a tangibleincentive should be provided for Mr Dawson to see that commitment through.[21] From an adjusted starting point of 45 months with discounts totalling 45 percent, Mr Schulze submits that an uplift of six months is sufficient to reflect both hisprevious convictions and that the offending occurred whilst on bail. This would resultin an end sentence of approximately 26 months' imprisonment.18 R v Mako [2000] 2 NZLR 170 (CA); and Smeed v The Police HC Whangarei AP50/00, 24 October2000.[22] Mr Bird, for the Crown, contends that the starting point of four years'imprisonment was well within range, if not generous. He characterises the offendingas a home invasion involving two offenders. He refers to the use of actual violence,confrontation of a vulnerable child and theft of property worth a significant amount.Accepting there is no guideline judgment for robbery, Mr Bird notes that thesentencing guidelines for aggravated robbery remain applicable, subject to adjustmentbut that adjustment is not to be formulaic or arithmetical based on relative maximumpenalties. He submits that in light of the significant aggravating features of thisoffending a starting pointing point of around seven years would have been appropriatehad Mr Dawson faced a charge of aggravated robbery. Taking into account the lowermaximum penalty for robbery, a four year starting point was not excessive.[23] With respect to the uplift applied for the balance of the offending, Mr Birdcontends that the effective uplift was only seven months and therefore close to thesubmission made by Mr Schulze.19 He submits that the Judge was entitled to upliftthe sentence for the dishonesty offending given that it was divorced in time anddifferent in nature to the home invasion on 17 October 2020. As to personal factors,Mr Bird contends that no error has been identified in the Judge's treatment ofMr Dawson's stated methamphetamine addiction, his background or the extent towhich either bore on his culpability. In these circumstances, there is no basis on whichto increase the discount of 15 per cent to 20 per cent.[24] Mr Bird accordingly submits that the end sentence was not manifestlyexcessive. He urges the Court to dismiss the appeal.DiscussionThe starting point[25] Although the Court's principal concern on an appeal is the end sentence, it isconvenient to discuss each issue advanced by Mr Schulze separately before steppingback and making an overall assessment. There are four:19 The starting point of 48 months was uplifted to 63 months then reduced to 55 months to reflecttotality.(a) Was the starting point too high?(b) Did the uplifts involve any double counting or were they otherwiseexcessive given the nature of the other offences?(c) Were the discounts for personal circumstances inadequate given whatthe pre-sentence report and alcohol and drug dependency reportrevealed about Mr Dawson's background?(d) Did the asserted errors lead to an end sentence that was manifestlyexcessive?[26] Mr Schulze places reliance on Sorensen and Jensen. He contends they bear anumber of resemblances to the current offending. In Sorensen the starting pointadopted by the sentencing Judge was assessed by reference to the Mako guidelines,adjusted for the lesser offence of robbery. The features of the offending were that twooffenders entered the victim's home without permission seeking a confrontation,although the use of weapons was unplanned. The starting point of three and a halfyears was not the subject of appeal which was instead entirely focused on discountsfor mitigating factors. Doogue J nonetheless recorded his agreement that the startingpoint was appropriate by reference to Mako and the comments in Smeed v The Police.20[27] The key point in Smeed which Mr Schulze relies on is that the Court, allowingan appeal against sentence, adopted a starting point for robbery which was 70 per centof the Court of Appeal's starting point for aggravated robbery (rounded to the nearesthalf year) based on the percentage relativity of the maximum penalties.21 The problemwith this reliance is that the Court of Appeal made clear in King v R that while theguidelines in Mako are applicable to robbery, arithmetical adjustments are not to bemechanically made to fit the differing maximum penalties at issue.22 This is consistentwith the comment in Mako that what is required is an assessment of the true culpabilityin the circumstances of the particular offending.2320 Smeed, above n 18.21 At [13].22 King v R [2019] NZCA 413 at [19] citing Heteraka v R [2013] NZCA 339 at [24].23 Mako, above n 18, at [70].[28] In terms of the Mako framework, I do not accept Mr Schulze's submission thatthe offending in this case resembles robbery of a small retail shop with threats or witha weapon or robbery of a taxi driver where a weapon is presented or violence isinvolved. I acknowledge that this offending does not readily fit the particularcategories described in Mako. I consider however that the most important featureswere entry onto the victim's property in a situation of planned confrontation (assuggested by the disguises). The fact that the victim was found, by chance, outside inhis garden does not change that complexion. It is little different from forcibly enteringthe victim's home. It must also be remembered that, after striking the victim aboutthe head and dragging him into the garage unconscious, Mr Dawson and his co-offender did unlawfully enter the house and there confronted a vulnerable child aged12.[29] It follows that I respectfully endorse the sentencing Judge's view that this hadthe hallmarks of a home invasion. As he put it:[21] But what I cannot ignore, is that this was effectively a home invasion.It involved the victim being struck in the head, you were accompanied byanother person and you had disguised yourself. So, clearly, it was yourintention to rob the occupants of this property when you drove up the drivewayindicating some level of premeditation and planning.[30] In short, I see no error in the adoption of a four year starting point.The uplift for other offending and totality[31] I view the uplift for the other offending as seven months rather than the 11months which Mr Schulze challenges being the difference between the nominalstarting point of four years or 48 months and the adjusted starting point of 55 months.This was to take into account the multiple incidents of dishonesty offending whichwere different in nature and in time to the lead offending.[32] The next related question is whether the uplift for previous convictions wasjustified—those previous convictions spanning from 2012 through to 2019. Some ofthose convictions led to lengthy sentences of imprisonment. The effective uplift forboth previous convictions and offending whilst on bail was nine months. Here Irespectfully depart from the Judge's assessment. I consider that Mr Dawson's personalhistory of addiction is highly relevant here and that the combined uplift of nine months,bearing in mind that the brunt of the uplift is not ameliorated by the discount forpersonal mitigating factors, is manifestly excessive. I accept that there is a causativelink between Mr Dawson's addiction and his dishonesty offending. Uplifts foroffending on bail are justified because they reflect the fact an offender has disregardfor the court process. I consider that this is a less influential consideration here whenaddiction is a reason for the dishonesty offending. I consider that an uplift of sixmonths rather than nine months is appropriate.Discount for personal mitigating circumstances[33] Finally, there is the issue of mitigation. I begin with an acknowledgment ofMr Dawson's stated intention to turn his life around which I commend. He hasidentified the necessary steps which displays valuable insight. I have read the pre-sentence report and alcohol and drug assessment report with care. Like manyoffenders, Mr Dawson's deprivations have contributed significantly to his addictionwhich in turn is causative of his offending. However, I accept the Crown's submissionthat the sentencing Judge appropriately took this into account, that a 15 per centdiscount is significant and that no actual error in the Judge's reasoning is identified.Result[34] I agree with the sentencing Judge's conclusion in respect of all issues save theuplifts to reflect prior offending and offending whilst on bail.[35] I allow the appeal to that extent only. The sentence of three years and sixmonths is quashed and substituted with a sentence of three years and three months'imprisonment.............................................................Walker J