R v DIXON [2021] NZHC 3496

R v DIXON [2021] NZHC 3496 [16 December 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-063-2105[2021] NZHC 3496THE QUEENvDAISY DIXONHearing: 16 December 2021Appearances: A McConachy and S J Bird for CrownR Raukawa for DefendantJudgment: 16 December 2021SENTENCING REMARKS OF LANG JSolicitors:Crown Solicitor, Rotorua[1] Ms Dixon, at 19 years of age you appear today for sentence having pleadedguilty to two charges of kidnapping, two charges of participating in an organisedcriminal group, four charges of wounding with intent to cause grievous bodily harmand three charges of injuring with intent to cause grievous bodily harm.[2] The most serious charges are the charges of kidnapping and wounding withintent to cause grievous bodily harm. They each carry maximum sentences of 14 yearsimprisonment. The other charges carry lesser penalties.The facts[3] You entered your guilty pleas after I gave you a sentence indication on 14October 2021.1 In the sentence indication I selected the starting point that reflectedthe overall culpability of your offending and gave you an indication of the discountyou would receive if you entered guilty pleas at that stage. I do not propose to repeatwhat I said in my sentence indication. It will be annexed to my sentencing remarksand will form part of them.[4] The sentence indication proceeded on the basis of an agreed summary of facts.This recorded that the genesis for your offending was the fact that your motherbelieved the female victim had stolen methamphetamine from her. She then arrangedfor the female victim to be kidnapped on two separate occasions and severely beatenon each. You were a party to both of those events.The incident on 12 September 2020[5] The first event occurred on 12 September 2020. On that date your mother senttwo male associates around to the victim's address at approximately 4 am. They brokeinto the address and literally dragged the victim out of bed. When she resisted, one ofyour mother's associates produced and threatened the victim with an imitation pistol.Not surprisingly she believed it was real.[6] The two intruders then took the victim back to a house, where you and yourmother were waiting. Your mother called the victim's father and told him he needed1 R v Dixon [2021] NZHC 2750.to come to the house with money if he wanted his daughter released. He then arrivedat the house and gave your mother some cash. You mother told him it was not enoughand told him to go away and get some more. He returned with more cash but yourmother did not let the victim go. Instead, you and an associate took the victim into abedroom where you both administered her a severe beating. You used a baseball batto strike the victim and you did so after your mother had already struck the victim withthe bat on numerous occasions. You continued to strike her with the bat until the batbroke in half. The victim's father was outside in the lounge listening to the beatingthat was being administered to his daughter.The incident on 22 October 2020[7] You were also fully involved in the second incident on 21 and 22 October 2020.You were present when the victim was at a motel unit in Rotorua on the morning of22 October 2020. She had been held at the motel overnight. During this incident thevictim was punched, elbowed and kicked by you whilst she was on the ground. Youalso used a baseball bat to break her nose and split her scalp. In addition, you assistedin gagging the victim by ramming a sock into her mouth and tying a blue bandannaaround it. You also at one stage used the flat end of a tomahawk to strike the victimin the head. During this ordeal you were telling the victim she was "dog shit" and a"bitch". At one stage you also picked up a pair of hedge clippers and used these againstthe victim's fingers. In addition, you shoved a sharp object into the victim's mouth,causing a hole in her lip.[8] At the end of the episode in the motel you and your mother wrapped the victimin a sheet and placed her in the tray of a utility vehicle that was then used to transportthe victim away from the motel. The victim was then taken to two other addressesbefore she was eventually released by persons who had been looking for her.Starting point[9] The starting point of 15 years imprisonment reflected several aggravatingfactors of your offending. The first is that you were prepared to become involved intwo separate premeditated incidents in which the victim was kidnapped and thenseverely beaten. This resulted in the victim sustaining significant injuries includingsplits to her scalp, a broken elbow, a broken nose and numerous bruises and abrasions.[10] This morning when your mother was sentenced the victim read out a heartfelt,yet measured, victim impact statement to the Court. This set out in graphic detail theeffect your offending has had on her. First, it resulted in the injuries I have described.These required surgery to the elbow and a considerable period of medical treatmentand recuperation thereafter. It has also cost the victim a significant amount in financialterms because she has been required to meet the costs of ongoing medical and othertreatment.[11] In addition, the victim and her family have had to move away from this citybecause they no longer feel safe here. They believe that persons sympathetic to yourcause may well seek to exact retribution against them for the fact that she was preparedto lay charges against you. The effects of the offending, not surprisingly, have alsoextended to the victim's father, who was also very much a victim in his own right. He,too, is extremely apprehensive about being found in this city by persons associatedwith you.[12] The next issue is that you were personally involved in both attacks when youused weapons to strike the victim in the head. Particularly callous was the fact thatyou were prepared to punch a hole in the victim's lip by inserting an object throughher lip. Overarching all of this is that the offending was done for monetary gain byyour mother. You would have been aware of that fact from the outset because it wascentral to the events that unfolded.[13] Both incidents also contained an element of callousness because, in the firstincident, the victim's father was forced to listen to his daughter being beaten in thebedroom. During the second incident your mother filmed some of the events thatoccurred and said she was going to send the images to the victim's father to encouragehim to pay more money.Aggravating factors[14] In giving you a sentence indication I noted that you had no previousconvictions so no uplift was required to reflect aggravating factors personal to you.Mitigating factors[15] The only mitigating factor for which I was prepared to give you a discount atthe sentence indication stage was that for guilty pleas. I indicated I would give adiscount of 20 per cent, or three years, to reflect guilty pleas. This would reduce thestarting point from 15 years imprisonment to 12 years imprisonment.[16] I now have a wealth of additional material from which I can determine whether,and to what extent, I should apply further deductions to reflect other mitigating factors.The first and most obvious is that you committed these offences when you were just18 years of age. Furthermore, I have no doubt that you were significantly influencedin your decision to become involved in both incidents by your mother, who was thedriver of this offending.[17] It has been said that a reduction for age may be tempered by the fact that veryserious offending is involved.2 On the other hand, I must recognise that youcommitted these offences at a young age when you probably had no idea of theconsequences that would follow either for you and for others in your group or, mostimportantly, for the victim. I propose to apply a discrete discount of two years threemonths, or 15 per cent, to reflect your age.[18] I also now have a pre-sentence report and a report tendered to me by yourcounsel under s 27 of the Sentencing Act 2002. The latter sets out in very considerabledetail your family and cultural background. In many ways it provides me with acomplete answer as to how you became involved in this offending.[19] Ms Dixon, your life and lifestyle to date mirrors that of your mother. You bothgrew up in a household that was deeply immersed in the Black Power gang. Yourmother had been around it for her whole life because both her parents were very senior2 Kisiogo v R [2021] NZHC 1648 at [18].members of that gang. Every aspect of the family's life has been driven by gang-related matters. Your family socialises with the gang and engages in gang-relatedactivities.[20] This has had a profound effect on your upbringing. First, you have lived inwhat can properly be described as conditions of poverty. Secondly, you have observedphysical violence being inflicted on those around you from an early age. Thirdly, yourparents have been neglectful because they put alcohol, drugs and gang-relatedactivities well ahead of your own interests. This resulted in you being exposed to theregular consumption of alcohol and drugs at a very early stage. Like your mother, youbegan drinking alcohol at an early age and then graduated to smoking cannabis. Bythe age of 18 you were smoking methamphetamine and indeed methamphetamine hadbeen smoked by persons involved in both incidents. More importantly, the wholedispute, if it can be called that, with the victim arose because of your mother's beliefthat she had stolen methamphetamine from her.[21] In many ways it is not a surprise at all that you face these charges today. It ismore of a surprise that you have been able to remain out of trouble up until now.However, taking into account your family background I have no doubt that you wereconditioned from an early age to respond to alleged slights by others by inflictingviolence on those responsible. This is certainly the approach taken by your motherand you were undoubtedly willing to adopt the same approach.[22] I applied a discount of 20 per cent to reflect these factors when sentencing yourmother. Your counsel says you should receive a greater discount, but I disagree. I seeyour position as being essentially identical to that of your mother. She is now 37 yearsof age, whereas you are just 19 years of age. You are therefore slightly less entrenchedin the lifestyle to which I have referred. I therefore propose to allow a discount ofthree years, or 20 per cent, to reflect this factor.[23] This takes into account any remorse you may have expressed. The pre-sentence report suggests you express no remorse at all. The cultural report suggeststhat, after some probing, you made comments that might be taken as expressions ofremorse to the writer of the report. However, I consider that you probably do not reallyhave true insight into the position you found yourself in at the time of the offending orthat in which you placed the victim.[24] You may have rehabilitative prospects, but they are going to be difficult torealise. The test for you, as it will be for your mother, will come when you are releasedfrom prison. If you return to the lifestyle from which you have come, then it isvirtually inevitable that you are going to be involved in this kind of offending in thefuture. If that occurs, prison sentences are likely to be the norm.[25] Applying the discount of eight years three months, I am left with a finalsentence of six years nine months.Sentence[26] On each of the charges of wounding or causing grievous bodily harm withintent to do so, you are sentenced to six years nine months imprisonment. On thecharges of injuring with intent to cause grievous bodily harm you are sentenced to fiveyears imprisonment. On the kidnapping charges you are sentenced to three yearsimprisonment. On the charge of participating in an organised criminal group you aresentenced to three years imprisonment.[27] All sentences are to be served concurrently. This means you will serve aneffective sentence of six years nine months imprisonment.Lang JNOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FORA SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THEINTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE ISPROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THECHARGE DISMISSED. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3865734.htmlIN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-Ā-KAHU ROHECRI-2020-063-2105[2021] NZHC 2750THE QUEENvDAISY DIXONSHAUN TE KIRIHearing: 14 October 2021Counsel: S J Bird (on behalf of A McConachy) for CrownR Raukawa for Ms DixonN Tahana for Mr Te KiriJudgment: 14 October 2021SENTENCE INDICATION OF LANG JSolicitors:Crown Solicitor, Rotorua[28] Ms Dixon and Mr Te Kiri face a variety of charges arising out of incidents thatoccurred on 12 September and 21-22 October 2020. The charges include kidnapping,participating in an organised criminal group, causing grievous bodily harm with intentto do so and wounding with intent to cause grievous bodily harm.[29] The defendants now seek a sentence indication. This is an indication of thesentences they would receive if they were to enter guilty pleas to the charges that theyface in the near future.[30] If the defendants decline the indications and are found guilty at trial thesentence indications will have no further effect. In that event the trial Judge willimpose a sentence that reflects the overall gravity of their offending as established bythe evidence at trial.The facts[31] A summary of facts has been prepared for sentence indication purposes. Theseare summarised in a sentence indication that I gave for another defendant in thisproceeding, Ms Rickylee Dixon.3 I take the reader of the present indication to befamiliar with the facts set out in the sentence indication I gave Ms Dixon on 7 October2021 and I do not repeat them here. Rather, I summarise the involvement of thepresent defendants having regard to the factual background set out in the sentenceindication for Ms Dixon.Ms Daisy Dixon[32] Ms Daisy Dixon faces charges of kidnapping (x2), participating in an organisedcriminal group (x2), wounding with intent to cause grievous bodily harm (x4) andinjuring with intent to cause grievous bodily harm (x3).[33] Ms Dixon was involved in both incidents that have given rise to the charges.She was present at Ms Rickylee Dixon's address when the victim was taken there inthe early hours of 12 September 2020. She also continued to assault the victim with abaseball bat after Ms Rickylee Dixon had already struck her on several occasions with3 R v Dixon [2021] NZHC 2679.the bat. Encouraged by another associate, Ms Daisy Dixon continued to strike thevictim until the bat broke in half.[34] Ms Daisy Dixon was also fully involved in the events that began on theafternoon of 21 October 2020 and then continued during the morning of 22 October2020. During the incident at the motel unit on the morning of 22 October 2020 shepunched, elbowed and kicked the victim whilst she was lying on the ground. She alsoused a variety of weapons to inflict significant physical injury on her. Ms Dixon useda baseball bat to break the victim's nose and split her scalp. She also assisted ingagging the victim by ramming a sock into her mouth and tying a blue bandannaaround it. Furthermore, at one stage she used the flat end of a tomahawk to strike thevictim in the head. During this she was telling the victim she was "dog shit" and a"bitch". Ms Dixon also picked up a pair of hedge clippers and used these against thevictim's fingers. In addition, she shoved a sharp object into the victim's mouth,causing a hole in her lip. At the end of the episode in the motel unit she andMs Rickylee Dixon wrapped the victim in a sheet before placing her in the tray of theutility vehicle that was used to transport the victim away from the motel.Starting point[35] The Crown contends a starting point of 15 years is appropriate andMs Raukawa does not strongly challenge this on Ms Dixon's behalf. She contends astarting point of between 14 and 15 years would be appropriate.[36] Taking the aggravating factors of the offending into account I consider thatMs Daisy Dixon's culpability was only marginally less than that of Ms RickyleeDixon, for whom I selected a starting point of 16 years imprisonment.4 Ms DaisyDixon was significantly more involved in the physical assaults than Ms RickyleeDixon during the second incident and she used a variety of weapons to injure thevictim. This means an argument can easily be made that the starting point for hersentence should be at least as great as the starting point of 16 years imprisonment Iselected for Ms Rickylee Dixon. However, I also need to take into account the fact4 At [26].that Ms Rickylee Dixon was the instigator of both incidents and she also received thefinancial benefits obtained from the kidnapping and detention of the victim.[37] I consider Ms Daisy Dixon's culpability is considerably greater than that ofMs Harete Ohlson, who was only involved in the second incident. I selected a startingpoint of ten and a half years imprisonment when giving her a sentence indication.5[38] Taking these factors into account I consider a starting point of 15 yearsimprisonment appropriately reflects the overall culpability of Ms Daisy Dixon'soffending.Aggravating factors[39] Ms Dixon has no previous convictions so no uplift is required to reflectaggravating factors personal to her.Mitigating factors[40] The only mitigating factor for which I would give credit at this point would beguilty pleas. As in the case of Ms Rickylee Dixon and Ms Ohlson, I consider adiscount of 20 per cent is appropriate. This amounts to 36 months and would reducethe starting point from 15 years imprisonment to 12 years imprisonment.[41] The indicated sentence for Ms Daisy Dixon is therefore one of 12 yearsimprisonment before taking into account any further mitigating factors that may beidentified in material provided at sentencing. These are likely to include a significantdiscount for her youth because she is just 19 years of age.Mr Te Kiri[42] Mr Te Kiri was only involved on the first day of the second incident. He wasnot present when the victim was badly beaten at the motel unit the following day.5 R v Ohlson [2021] NZHC 2536 at [21].[43] Mr Te Kiri was in the vehicle that drove the victim away from the shoppingmall on the afternoon of 21 October 2021. Ms Rickylee Dixon was also in this vehicle.The summary of facts records that Mr Te Kiri was sitting in the front passenger seatof the vehicle and was holding a knife and a long sword. He was also party to aconversation to the effect that the victim was being held as a hostage and they wouldreceive money as a result of this.[44] A message was sent to the victim's father telling him that the group werecoming to get money from him. As the vehicle approached the victim's father'saddress Mr Te Kiri placed a blue bandanna over his face. He was present when thevictim's father paid the group a few thousand dollars in cash. Mr Te Kiri contributedto this episode by getting out of the vehicle and standing in an intimidatory pose. Thiswas no doubt done to assist in persuading the victim's father that he should hand overmoney to Ms Rickylee Dixon.[45] Mr Te Kiri was later present with other defendants at a bar in Rotorua. Thegroup spent several hours at the bar spending money they had obtained from thevictim's father.[46] At about 9 pm Mr Te Kiri and several other defendants drove around theRotorua area with the victim in their vehicle. They then returned to the bar, where thevictim was required to remain in the vehicle and was guarded by a member of thegroup.[47] When the group left the bar they forced the victim to travel in the boot of thevehicle so she could not be seen. They then drove the victim to the motel whereMs Daisy Dixon and Ms Rickylee Dixon were living at the time.Starting point[48] Mr Te Kiri's culpability lies in the fact that he was a party to the kidnapping ofthe victim in the knowledge that this was being done to extort money from her father.He then actively participated as the money was handed over. He then travelled aroundRotorua in the vehicle in which the victim was being held captive.[49] He therefore participated fully in the events that occurred on the afternoon of21 October. His offending is aggravated by the fact that he was carrying two weaponswhilst in the vehicle. These were obviously designed to intimidate the victim.Similarly, he positioned himself in such a way as to intimidate the victim's father andpersuade him to hand over money. He was not, however, present when the victim wasassaulted.[50] Taking these factors into account I consider an appropriate starting point is oneof five years imprisonment.Aggravating factors[51] Mr Te Kiri has previous convictions including convictions for offendinginvolving violence. However, none of these are really relevant for present purposes.For that reason I add no uplift for previous convictions.Mitigating factors[52] The only mitigating factor for which I would give credit at this stage is guiltypleas. As in the case of the remaining defendants I propose to provide a discount of20 per cent (or 12 months).Indicated sentence[53] This results in an indicated sentence of four years imprisonment before takinginto account any further mitigating factors that might be contained in materialprovided at sentencing.Time for acceptance[54] The defendants have until 4 pm on Wednesday 20 October 2021 to advise theCrown and the Court whether they accept the sentence indications I have given.Lang J