BOLT v POLICE [2021] NZHC 1966

BOLT v POLICE [2021] NZHC 1966 [30 July 2021]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2021-425-10[2021] NZHC 1966BETWEEN DION HUGH BOLTAppellantAND NEW ZEALAND POLICERespondentHearing: 27 July 2021Appearances: S G Vidal for Appellant R T Nye-Wood for RespondentJudgment: 30 July 2021JUDGMENT OF MANDER JThis judgment was delivered by me on 30 July 2021 at 4 pm pursuant to Rule 11.5of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] Dion Bolt was sentenced to two years and six months' imprisonment by Judge Walker in the Invercargill District Court following a sentence indication on a raft of charges that included threatening to kill, wilful damage, arson, assault with a blunt instrument, unlawfully taking a motor vehicle and reckless driving. 1 He was also sentenced for the unlawful possession of a pistol and ammunition.[2] He appeals his sentence on the basis the length of the prison term was manifestly excessive. He does not take issue with the indicated sentence itself but with what he submitted was the inadequate discount extended for personal mitigating circumstances from that indicated starting point.Background factsThe February offending[3] In the early hours of 18 February 2020, Mr Bolt was at the victim's home in Mangakino. He and the victim had been in a relationship for some three years. While the victim was in bed with the couple's son, Mr Bolt entered her room uninvited and refused to leave. He took her phone and became angry when he realised she had changed her passwords. He yelled at her and threatened to punch her in the head. He said he wanted to kick her head in and accused her of infidelity. About an hour later Mr Bolt left, but not before whispering to her that he would return.[4] That evening, Mr Bolt drove back to the house. He remained in the car and, as the victim approached him, he yelled at her, accusing her of cheating on him. Mr Bolt then got out of the car holding a pocket knife. He told the victim, "Fuck I'm going to kill you" and lunged at her while making a stabbing motion. He told the victim he had a loaded gun in the backseat of his car "for her". Mr Bolt later messaged the victim he would kill her that night.[5] As a result of these events, Mr Bolt was charged with speaking threateningly2and threatening to kill.31 Police v Bolt [2021] NZDC 8054.2 Summary Offences Act 1981, s 21(1)(a) – maximum penalty of three months' imprisonment or a $2,000 fine.3 Crimes Act 1961, s 306 – maximum penalty of seven years' imprisonment.May offending[6] On 8 May 2020, Mr Bolt knocked on the door of a man's house near Whakamaru. When the man responded, Mr Bolt asked for his name and if he wanted to "score". The man declined and Mr Bolt left. Three days later, Mr Bolt returned to this address and again asked the man if he wanted to "score". When this person refused, Mr Bolt asked if he was a snitch before leaving.[7] In the late afternoon of 20 May, Mr Bolt unlawfully took a car from an address. With a cloth covering the bottom of his face, he drove to the Whakamaru address. As he approached the address another occupant of that house walked towards Mr Bolt's car. Mr Bolt yelled at this female to tell the male occupant "to get the fuck outta here. You know who I am, you called the cops on me", and threatened to drive through the ranch slider if the man did not appear. The female was afraid and ran to the house where she locked the doors and hid with the lights off. While she was running towards the house, Mr Bolt drove through a metal fence, bending it and breaking the locks. He drove up the driveway and parked behind the victim's car, before leaving.[8] As a result of his actions at this address, Mr Bolt was charged with unlawfully taking a motor vehicle, 4 committing a threatening act by damaging a dwelling house,5and wilful damage. 6[9] As Mr Bolt drove towards Mangakino, a police patrol saw his vehicle and initiated their lights and sirens. Mr Bolt fled. He overtook another vehicle, turned his lights off, and reached speeds of over 140 kph. As he entered Mangakino, Mr Bolt crossed the centreline and hit an oncoming motorcyclist. The victim was thrown metres from his motorbike but Mr Bolt did not stop until he arrived in Mokai, where he set the vehicle on fire.[10] Two days later, Mr Bolt visited an associate and asked her to transport him to an address near Taupo. She refused but allowed him to stay at her address for the4 Crimes Act 1961, s 226(1) – maximum penalty of seven years' imprisonment.5 Crimes Act 1961, s 308(a) – maximum penalty of three years' imprisonment.6 Summary Offences Act 1981, s 11(1)(a) – maximum penalty of three months' imprisonment or a $2,000 fine.evening. However, the following morning she discovered Mr Bolt had used her car keys to take her vehicle. These events, which took place when Mr Bolt was attempting to evade police, resulted in him being charged with failing to stop when required and to ascertain injury,7 assault with a blunt instrument, 8 reckless driving, 9 arson, 10 and unlawfully taking a motor vehicle. 11June offending[11] On 11 June 2020, the police identified Mr Bolt as the front seat passenger in a vehicle in Christchurch. Checks revealed there was an active warrant for his arrest and the vehicle was stopped. A .45 calibre pistol was found in the centre console and two loaded magazines were also located in the car. Mr Bolt subsequently refused to supply his fingerprints or be photographed by police after being cautioned. He was charged with the further offences of unlawful possession of a pistol and ammunition,12and failing to supply particulars (fingerprints and photograph). 13District Court decisionSentence indication[12] Judge Walker provided a sentence indication based on the threatening to kill charge being the lead offence. Aggravating factors that were identified included Mr Bolt's use of multiple threats, premeditation, use of a weapon and the family harm elements of the offending. After an adjustment for totality, a global starting point of 55 months' imprisonment was arrived at. 14 A full 25 per cent discount was applied for7 Land Transport Act 1998, ss 52A and 114(2) – maximum penalty of a $10,000 fine and disqualification of six months or more; and s 35(1)(c) – maximum penalty of three months' imprisonment or a $4,500 fine and disqualification of six months or more.8 Crimes Act, s 202C – maximum penalty of five years' imprisonment.9 Land Transport Act, s 35(1)(a) – maximum penalty of three months' imprisonment or a $4,500 fine and disqualification of six months or more.10 Crimes Act, s 267(2) – maximum penalty of seven years' imprisonment.11 Crimes Act, s 226(1) – maximum penalty of seven years' imprisonment.12 Arms Act 1983, s 50(1)(a) – maximum penalty of three years' imprisonment or a $4,000 fine.13 Policing Act 2008, s 32(4) – maximum penalty of six months' imprisonment or a $5,000 fine.14 This starting point comprised 22 months for the lead charge of threatening to kill, with a six month uplift to reflect the other violence offending (assault, threatening act, speaking threateningly); 16 months for the arson charge; 12 months for the firearms charges; 12 months for unlawfully taking a vehicle charges, with an uplift of two months for the other driving charges; and an uplift of three months to accounts for Mr Bolt's previous offending. A reduction of 18 months was made to reflect totality. On the charge of refusing to supply fingerprints and photographs, Mr Bolt was convicted and discharged.Mr Bolt's guilty plea. This resulted in an indicated sentence of three years and five months' imprisonment.Sentencing[13] At sentencing, Judge Walker had the benefit of a pre-sentence report, a cultural report, and a restorative justice report. The Judge noted that Mr Bolt had suffered from socio-economic deprivation and violence during his childhood and that his upbringing included alcohol and drug use. These features had resulted in a normalisation of criminal activity and were considered to be likely contributory factors to his offending. A 15 per cent discount was afforded in recognition of that background. The Judge also extended a five per cent discount for Mr Bolt's engagement in a restorative justice conference with his partner, and his willingness to undergo treatment for methamphetamine use and to sever his association with a gang.[14] These adjustments for Mr Bolt's personal circumstances resulted in an end sentence of 30 months' imprisonment (two years and six months). Mr Bolt was also disqualified from driving for 18 months as a consequence of his convictions on the reckless driving and failing to ascertain injury charges.The appeal[15] Mr Bolt's appeal was lodged one day late but the Crown is not prejudiced and an extension of time is granted.[16] No issue is taken with the starting point adopted by Judge Walker and it is accepted that part of the sentencing exercise is unimpeachable. The appeal is solely focussed on the extent of the discounts afforded for personal mitigating factors for which it was submitted Mr Bolt had received insufficient recognition, including for his remorse and rehabilitative efforts. Ms Vidal, who appeared on behalf of Mr Bolt, submitted that where the restorative justice meeting resulted in real engagement and demonstrations of remorse, a deduction of at least 10 per cent should have been extended.[17] In respect of the cultural report, Ms Vidal submitted that insufficient weight was given to the information provided, particularly as it related to the poverty and extremely abusive nature of Mr Bolt's upbringing, which counsel submitted had impacted upon him and influenced his offending behaviour as an adult. Ms Vidal submitted that a 20 per cent reduction should have been applied in recognition of that background.AnalysisRemorse and restorative justice conference[18] The Court was presented with conflicting information regarding the nature and level of Mr Bolt's remorse. The restorative justice process with his partner had resulted in a positive and constructive outcome. Mr Bolt apologised for his actions and the effects his offending had on his partner. However, the pre-sentence report demonstrated that Mr Bolt continues to lack insight. He demonstrated a tendency to justify his offending and, in relation to some of the charges, took a "victim-blaming stance". Ms Vidal submitted that a five per cent credit was usually extended to those offenders who offered to participate in restorative justice and where, as in this case, the offender has followed through and engaged in the process that should be recognised. Mr Nye-Wood, on behalf of the respondent, submitted the sentencing Judge had properly turned his mind to Mr Bolt's engagement in the restorative justice process and appropriately recognised that by providing for a five per cent reduction.[19] In large part, engagement in a restorative justice process is a means by which an offender can in a tangible way demonstrate their remorse. In the present case there is, as I have remarked, mixed information regarding that issue but I consider the sentencing Judge did not place undue weight on a number of adverse comments made in the earlier pre-sentence report and gave proper credit to Mr Bolt for his attendance at the restorative justice conferences. However, notwithstanding the positive outcome of that process, it related only to one aspect of Mr Bolt's offending and was largely limited to his personal relationship with his partner and the mother of his child.[20] The five per cent discount came on top of a full 25 per cent credit for Mr Bolt's guilty pleas, which to some extent is also an indicator of remorse. In thecircumstances, I do not consider the additional five per cent discount to mark Mr Bolt's participation in restorative justice, which the Judge discussed in some detail in his sentencing remarks, can realistically be challenged as inadequate.The cultural report[21] The s 27 cultural report reveals an upbringing where violence was an everyday occurrence within Mr Bolt's family. He was exposed to problematic alcohol and drug use which was widespread, both within his family and immediate community, and which often fuelled violence and crime. Mr Bolt started drinking at an early age, graduated to cannabis, then to methamphetamine which has now been a long-term problem for him. Mr Bolt's unstable family situation exposed him to the influence of gang members and his eventual membership, although it appears Mr Bolt has demonstrated an ability to distance himself from that negative influence.[22] Judge Walker acknowledged the "all too familiar path" that marked Mr Bolt's progress from a broken childhood and limited schooling, to contact with gangs at an early age, and exposure to drug use that involved such negative consequences as problematic gambling and mental health issues. Notwithstanding those difficulties and the present offending, Mr Bolt appears to have identified for himself a potential pathway to a better life, expressing an interest to relocate with his partner to a different geographical area and obtain employment.[23] Before an offender's background and personal history can be used to mitigate a sentence, it is necessary that the difficulties experienced by that person can be shown to have contributed causatively to their offending.15 Social and cultural dislocation, poverty, alcohol and drugs, and a childhood blighted by violence and/or sexual assault that have impaired an offender's development and life choices should be recognised as diminishing moral culpability.16 Mr Nye-Wood cautioned against placing too much weight on information that is entirely self-reported, although he responsibly acknowledged that Mr Bolt's account of his upbringing, as set out in the s 27 report,15 Carr v R [2020] NZCA 357 at [57], citing Zhang v R [2019] 3 NZLR 648 at [159].16 Carr v R, above n 15, at [60] and [65].discloses a credible narrative of a violent childhood and youth, and a disadvantaged life that includes a severe disconnection from Te Ao Māori.[24] Mr Bolt's background has marked parallels with that of the offender in Carr v R.17 There, the Court of Appeal reviewed the approach taken by sentencing courts to the level of discount extended for the type of matters raised in a s 27 report. Family violence, early exit from the education system, affiliation with gangs as a youth, and alcohol and drug abuse, including methamphetamine addiction, were all similar issues that featured in Mr Bolt's life. In that case the Court of Appeal concluded that an appropriate discount would be 15 per cent. 18[25] The Court of Appeal, in reaching that conclusion in Carr, noted the percentage discount for the significant matters raised in the s 27 report had to be balanced against the nature and extent of the individual's offending. 19 Having reviewed the information provided by the s 27 report, there is a clear link between Mr Bolt's experiences of violence, deprivation, normalisation of alcohol, drugs and crime during his formative years and his offending which needed to be acknowledged by an appropriate discount. However, I do not consider the District Court Judge erred in his assessment of these factors when arriving at a 15 per cent reduction which, in my view, accords with the range of credit available to him, as does the overall sentence ultimately imposed. 20 It follows that the appeal must be declined.Result[26] The appeal against sentence is dismissed.Solicitors:Southern Law, InvercargillCrown Solicitor, Invercargill17 Carr v R, above n 15.18 At [63]–[67].19 At [65] and [67].20 The Court of Appeal has recently remarked that it has commonly allowed discounts for cultural factors of up to 15 per cent. See Gray v R [2020] NZCA 548 at [29], citing Woodstock v R [2020] NZCA 472 at [35]; Carr v R, above n 15, at [67]; Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [70]; and Minogue v R [2020] NZCA 515 at [47].