DODDS v NEW ZEALAND POLICE [2020] NZHC 886

DODDS v NEW ZEALAND POLICE [2020] NZHC 886 [4 May 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-12[2020] NZHC 886BETWEEN HANNAH ALICE DODDSAppellantAND NEW ZEALAND POLICERespondentHearing: 28 April 2020Appearances: A McKenzie for Appellant (via audio-visual link)S Mallett for RespondentJudgment: 4 May 2020JUDGMENT OF MANDER JThis judgment was delivered by me on 4 May 2020 at 3.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate: .[1] Ms Hannah Dodds pleaded guilty to charges of threatening to injure,intentional damage, one charge of failing to stop, and two charges of assaulting apolice officer. She was sentenced by Judge Garland to 100 hours' community workand nine months' supervision. She was also ordered to pay $160 in reparation anddisqualified from driving for six months.1[2] Ms Dodds appeals the sentence on the basis the Judge erred in imposing100 hours' community work for the sole purpose of general deterrence. She was notmentally well at the time of her offending and it is argued that this punitive element ofher sentence was inappropriate.BackgroundThreatening and wilful damage[3] On the night of 22 January 2019, Ms Dodds messaged her former partnermultiple times threatening to "deal to" his new girlfriend, crash into his car, and takehis dog unless he "handed over" his new girlfriend. Later Ms Dodds drove to herformer partner's address. She was observed approaching the front door and when itwas closed to prevent her gaining entry Ms Dodds became aggressive. She rantowards the door, yelling that she would hurt the victim. She repeatedly yanked at thedoor in an attempt to open it before punching through and breaking the glass door.Assault on police and failing to stop[4] On 21 April, whilst on bail for the previous offending, Ms Dodds was stoppedin her vehicle. The police believed she was suicidal and sought to detain her under theMental Health Act 1992. Ms Dodds reacted by reversing her vehicle into a policeofficer, striking him in the knee before then accelerating away. The officer sufferedsoreness, bruising to his knee and back problems which have taken some time toresolve.[5] When the police caught up with Ms Dodds they activated their lights and sirensin an effort to stop her. However, she continued on before abandoning her vehicle and1 Police v Dodds [2020] NZDC 2238.fled into bush at a nearby park. Another police officer located Ms Dodds and advisedher she was under arrest. She reacted by striking this officer on the side of the headand resisted being handcuffed by kicking and struggling. The officer was left dazedand suffered from a headache that caused her to vomit.District Court decision[6] In sentencing Ms Dodds, Judge Garland acknowledged that her ability to livesafely in the community had largely been compromised by her poor mental health andother medical issues, and that her drug use was an additional burden. However, henoted that Ms Dodds had successfully completed sentences of supervision andcommunity work as recently as 2018. The Judge rejected the submission thatsupervision alone would be adequate. He considered the assaults on police officerswere a matter of concern for the community and should be met with a stern responseto deter others.[7] Judge Garland noted the lead charges were those of assaulting a police officerthat carried a maximum term of three years' imprisonment. Taking into accountMs Dodds' previous conviction for assault, and extending full credit for her guiltypleas, 50 hours' community work was cumulatively imposed on the two lead charges.This was combined with nine months' supervision for the threatening to injure charge.Special conditions were imposed that required Ms Dodds to attend and complete anyrecommended interventions for alcohol and drug use, and other programmes.Approach to appeal[8] Appeals against sentence are permitted as of right and proceed by way ofrehearing.2 An appeal against sentence may only be allowed by this Court if it issatisfied there has been an error in the imposition of the sentence and that a differentsentence should be imposed.3 As the Court of Appeal observed in Tutakangahau v R,"... [an appellate] court 'will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles'".42 Criminal Procedure Act 2011, s 244.3 Criminal Procedure Act 2011, s 250(2) and (3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[9] It is only appropriate for this Court to substitute its own views if the sentenceis "manifestly excessive" and one that cannot be justified upon applying the relevantsentencing principles.5 Because the appellant must satisfy the appellate court that adifferent sentence should be imposed, the focus must "primarily be on theappropriateness of the end sentence, not the means by which that end sentence hasbeen reached.6The appealThe argument[10] On behalf of Ms Dodds, Mr McKenzie submitted that the imposition of 100hours' community work was contrary to principle and had resulted in an erroneoussentence. Counsel submitted that the Judge had only imposed the community work tomeet a perceived need to give recognition to the principle of general deterrence. MrMcKenzie maintained that in the circumstances of this case such an approach wasinappropriate for several reasons:(a) The maximum penalty that attaches to a charge of assaulting policealready carries a premium in recognition of the person who is the targetof the assault. A stern response from the Court is therefore unnecessary;this essentially was a submission that the Court in imposing communitywork had effectively double-counted an aggravating feature that wasintrinsic to the charge itself.(b) Relying on Zhang v R, it was submitted that where the offender istroubled neither personal nor general deterrence has much relevance inthe sentencing exercise.7 Drug addiction may cloud any appreciationof deterrence, so too does significant mental disturbance. Ms Dodds'irrational actions were directly related to her mental condition at thetime, and the principle of general deterrence did not logically bear onsuch irrational behaviour.5 Ripia v R [2011] NZCA 101 at [15].6 Skipper v R [2011] NZCA 250 at [28].7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.(c) The District Court's approach implies a de facto minimum sentence ofcommunity work for any assaults on police officers as the Judge'sreasoning would be applicable to any charge of this type. Thisrepresents an error of principle.[11] Mr McKenzie submitted that when account is taken of Ms Dodds' personalmitigating circumstances, the imposition of community work had resulted in asentence that was manifestly excessively.The response[12] After noting the maximum penalty for assaulting a police officer, Mr Mallettsubmitted that the offending was serious and that both officers suffered injuries orharm. When regard is had to the hierarchy of sentences, the imposition of communitywork could not be viewed as excessive. Mr Mallett accepted that Ms Dodds sufferedfrom mental health difficulties but that this aspect had properly been taken into accountby the sentencing Court. He submitted the sentence was not manifestly excessivebecause:(a) Ms Dodds' guilty plea must be accepted as an acknowledgment of herlegal responsibility for the offences. Her mental state was a mitigatingfactor, however, Ms Dodds understood the nature and quality of her actswhen she assaulted the officers.(b) The pre-sentence report opined that Ms Dodds is "prone to usingviolence when she is in the presence of police", and that she is"distrustful of authority, especially the police". It is suggested she"remains vulnerable to resorting to violence primarily when confrontedby police". It was submitted that Ms Dodds' anti-police attitude shouldnot be solely attributed to her mental health difficulties and that shemust bear responsibility for the consequences of her actions.(c) The Judge was cognisant of Ms Dodds' mental health issues andimposed a sentence that she was capable of completing, as she had donein the past.[13] Mr Mallet submitted that putting to one side the appropriateness of generaldeterrence in the instant case, the community work represented a proportionatesentence. However, for completeness, it was argued that the Judge's reference to astern response to offending against police officers was not an indication of double-counting but rather a recognition of the general need to denounce offending of thistype. While individual deterrence may not be viewed as appropriate, widerconsiderations of general deterrence remained applicable.Decision[14] There is no tariff for the offence of assault on a police officer, but anythingmore serious than minor assaults, such as pushing or spitting, can often result in a shortterm of imprisonment.8 Periods of one to three months' imprisonment have beenimposed for medium level assaults such as kicking and headbutting.9[15] The injuries sustained by the two police officers were not serious, but neithershould they be considered minor. The second officer suffered a blow to the head (anyinjury to the head increases the risk of serious injury) and the first officer waseffectively the victim of a vehicle that was used as a weapon. He required ongoingrehabilitation. Both police officers were assaulted whilst Ms Dodds was on bail fromthe earlier charges that arose from an incident that featured elements of violence.[16] In considering the aggravating and mitigating factors personal to Ms Dodds,the Court was entitled to take into account her previous conviction for assault. Asnoted, in large measure Ms Dodds' violent conduct towards the police officersrepresented a continuation of her prior conduct towards her former partner and hisfemale associate. However, Ms Dodds suffers from poor mental health. As observedby both the Judge and the pre-sentence report writer, Ms Dodds labours under achronic "jigsaw" of mental problems and did so at the time of the offending.8 Kumar v Police [2014] NZHC 1659 at [32] citing R v Taurere HC Whangarei CRI-2011-488-30,7 July 2011.9 Taurere, above n 8, citing Taiapa v R [2011] NZCA 48 (three months for assaulting a PoliceOfficer); R v Chiyabi [2008] NZCA 10 (three months for headbutting a police officer); Cooper vPolice HC Auckland CRI 2009-404-261, 16 November 2009 (one month's imprisonment forkicking an officer in the chest and lower body); Rameka v Police HC Whangarei CRI 2010-488-50, 3 December 2010 (150 hours' community work for assault charge, no details given); Waata vPolice HC Nelson AP10/02, 27 June 2002 ($400 fine for pushing a police officer).[17] All things being equal, a sentence of 100 hours of community work wasunremarkable. This is illustrated by a brief review of sentences imposed for this typeof conduct:(a) Thompson v Police – resisting police and assaulting a police officer(attempted to knee in groin and spat at): sentenced to 65 hours'community work.10(b) Jailane v Police – unlawfully getting into a motor vehicle, assaulting apolice officer (spat and kicked): sentenced to 12 months' supervisionand 150 hours' community work.11(c) Boggs v Police – intentionally obstructing a police officer and twocharges of assaulting a police officer (attempted to kick one officer inthe knee and kicked another officer in the forehead causing bruising butno medical attention required): sentenced to 9 months' supervision and300 hours' community work.12(d) Burchell v Police – assaulting a police officer (kneed in the groin):sentenced to 75 hours' community work.13(e) Clarke v Police – assaulting a police officer (spat): sentenced to 80hours' community work.14[18] Turning to Mr McKenzie's central submission regarding identifiable error inthe District Court's approach, I accept Mr Mallett's submission that there ordinarilywill be a place for general deterrence where police officers are assaulted in the courseof carrying out their duties. It is an approach that has commonly and appropriatelybeen taken in cases of this type.15 Further, there is a foundation to suggest Ms Dodds,10 Thompson v Police [2019] NZHC 3241.11 Jailane v Police [2016] NZHC 2423.12 Boggs v Police [2014] NZHC 123.13 Burchell v Police [2010] BCL 545 (HC) (full judgment unpublished under Criminal Records(Clean Slate) Act 2004).14 Clarke v Police [2015] NZHC 259.15 Boggs v Police, above n 12, at [41]; Clarke, above n 14, at [57].despite her mental health, has a general "anti-police attitude" that indicates she musttake at least some personal responsibility for her conduct and that some element ofdeterrence remains a legitimate consideration. That said, Ms Dodds' deterioratingmental health was the central reason for the police's intervention and their efforts todetain her at the time the assaults occurred. That must bear on her level of culpabilityand brings into question the relevance of deterrence.[19] In Zhang, the Court of Appeal discussed the rationale behind the principles ofboth individual and general deterrence, albeit in the context of methamphetaminedealing. A distinction is to be drawn between individual rather than general deterrencewhere factors personal to the offender are in play. In responding to the submissionthat the increasing severity of punishment for methamphetamine offending is unlikelyto reduce rates of that type of offending, it was observed that the issue of deterrence ismore complex:16... it is wrong to wholly detach deterrence from denunciation, accountabilityand community protection when responding to a crime as harmful as dealingin methamphetamine. That deterrence is in issue at all, given the gravity ofthe harm, is first and foremost a product of the enormous profitability of themethamphetamine trade. That cannot in itself be a reason to moderatesentencing. The contrary might reasonably be observed. Deterrence is alsoput in issue is where the offender is vulnerable, by reason (for instance) ofaddiction, mental health disability, economic deprivation, duress or undueinfluence. That consideration reduces the relevance of individual, rather thangeneral, deterrence. It is not a consideration of general application,compelling moderation of sentencing in all cases. In the usual way, post-Taueki, it raises an issue for consideration after objective offending sentencestarting points are considered (at stage one) when (at stage two) considerationspersonal to the offender are considered.[20] The personal circumstances of the offender may also undermine the relevanceof general deterrence:17... the principle of general deterrence is said to be based on a theory of "rationalchoice". That is, that the offender may weigh up the pros (profit and pleasure)and cons (detection and punishment) in choosing whether or not to offend...But the principle of rational choice is less relevant, and general deterrence isless likely, where that rational choice is constrained by mental disorder (sothat the choice may not be rational at all), addiction, poverty, duress or othersupervening vulnerability...16 Zhang v R, above n 7, at [90].17 At [92].[21] It must be acknowledged that the Court of Appeal's comments in Zhangspecifically related to the approach to be taken by a sentencing court tomethamphetamine-related offending. That is far removed from the type of offendingwith which this appeal is concerned. However, it is apparent that, whatever the typeof offending, care is required when applying sentencing considerations such asdeterrence in the circumstances of any particular case. In particular, where theoffender has vulnerabilities that may bear on the criminal conduct for which the personis before the court. In such cases a question will arise as to whether it is appropriateto include a more punitive element to mark the need for deterrence, be it individual orgeneral.[22] To the extent that the sentencing Judge's comments in this instance, thatoffenders can expect a stern response from the Court to deter others from doing thesame, could be interpreted as exhibiting a stock response that ignores the individualcircumstances of the offender, I accept Mr McKenzie's submission has merit.However, I do not consider such an interpretation reflects the approach actually takenby Judge Garland.[23] Ms Dodds' mental health difficulties were taken into account. WhileMr McKenzie may contest the need for any punitive element, I am satisfied the 100hours' community work represented an appropriately calibrated response.Notwithstanding the state of her mental health there remained a level of personalresponsibility that Ms Dodds was required to accept for her conduct. To the extentthat element of the sentence may have erroneously been justified by too great anemphasis on the need for deterrence, I do not consider that undermines the overalllegitimacy of the sentence imposed.[24] As already noted, the appellate court's focus will be on whether the ultimatesentence is beyond the legitimate range available to the sentencing Judge. Even whereerror is identified in the approach taken to the sentencing exercise, in the absence ofconvincing this Court that a different sentence should be imposed, the appeal will notsucceed. In my assessment, appropriate allowance was made for Ms Dodds'extenuating personal circumstances and that the sentence reflected the allowance to bemade for her mental health difficulties.Result[25] For these reasons, the appeal is dismissed.Solicitors:Andrew John McKenzie, Barrister, ChristchurchCrown Solicitors Office, Christchurch