DUNLEA v NEW ZEALAND POLICE [2020] NZHC 984

DUNLEA v NEW ZEALAND POLICE [2020] NZHC 984 [13 May 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000008[2020] NZHC 984BETWEEN MICHAEL JOSEPH DUNLEAAppellantAND NEW ZEALAND POLICERespondentHearing: 12 May 2020Appearances: S A Saunderson-Warner for AppellantR D Smith for RespondentJudgment: 13 May 2020JUDGMENT OF GENDALL JThis judgment was delivered by me on 13 May 2020 at 2:15 p.m. pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] This is an appeal against sentence. The appellant, Mr Dunlea, was sentencedin the District Court at Dunedin on 11 March 2020 to 29 months' imprisonment(two years and five months) on a range of charges: charges of threatening to dogrievous bodily harm (x 2), assault with a weapon, unlawfully taking a motor vehicle,possession of an offensive weapon, theft and wilful damage. Mr Dunlea appeals thatsentence.Facts[2] On 13 November 2019 Mr Dunlea, who was employed at the time as a farmmanager, arrived at an address in Clydevale to speak to a work colleague, one of thevictims in this matter, who will be referred to as Mr R.1 Mr Dunlea was intoxicatedand asked where his partner was. He then left that address in his partner's vehicle anddrove to his home address.[3] Mr Dunlea's partner had taken one of her children to a neighbours' house forfear Mr Dunlea would come home intoxicated and cause an incident. Mr R had drivento the address out of concern for what Mr Dunlea might do next. An argument ensued.Mr R was able to overpower Mr Dunlea and hold him to the ground, in an attempt tokeep him calm.[4] Mr Dunlea asked where the children were. When told they were inside he said,"get them out here before I kill the lot of them". He went inside, woke the children,and put them in his partner's vehicle. A short time later he drove to the neighbours'house looking for his partner.[5] At the neighbours' house Mr Dunlea knocked on the door and shoutedobscenities to the Philippino occupants. The words used were both racist and obscene.Mr R had followed Mr Dunlea to the house. Mr Dunlea confronted him and thenpunched him twice with two blows connecting with Mr R's face.1 The redacted names in this memo are consistent with the District Court decision.[6] The District Court judgment records Mr Dunlea then retrieved an empty beerbottle from his partner's vehicle, smashed the bottom half on a fence and approachedMr R. He held the bottle about one centimetre from Mr R's stomach and said, "you'vegot one chance to tell the truth or I'm going to fucken stab you". He then turned tohis partner and said, "have you ever seen anyone be stabbed before?" He raised thebottle to Mr R's face, then ran the sharp end down his chest and said, "I'm just goingto give you a wee mark."[7] Mr Dunlea threw the bottle at Mr R's vehicle, cracking the windscreen. Hekicked the front driver's sidelight, causing it to break. Mr R confronted him, andMr Dunlea punched him in the face cutting his eyebrow. He then smashed the sidemirror of Mr R's vehicle and attempted to kick Mr R numerous times. No blowsconnected. Mr Dunlea was wearing steel cap boots.[8] Mr Dunlea's employers arrived and police were called. Mr Dunlea drove awayin Mr R's vehicle with three of his partner's children. He travelled to Mr R's address.[9] Mr Dunlea entered the garage at Mr R's address, attempting to take a motor-cross bike that he had partial ownership of. Mr R's 16 year old son, the second victim,came out. Mr Dunlea stood inches from him and said, "if you don't stay inside I'llsmash your face in." Fearing for his safety, Mr R's son locked the door, went into hisbedroom and escaped via the window, running across a paddock to a neighbouringproperty.[10] When Mr R arrived back at the house, Mr Dunlea threatened him. Attemptingto de-escalate the situation Mr R walked away from his address. Mr Dunlea tookMr R's vehicle and went to his own home.[11] Mr Dunlea took Mr R's cell phone and wallet containing $35 cash. There wassignificant damage to the interior and exterior of Mr R's motor vehicle.[12] Police arrived at Mr Dunlea's address. Mr Dunlea approached the attendingofficer welding a metal bar. He continued to threaten the officer while police back upwas called. Mr Dunlea piled children's toys and his partner's property at the front ofthe property then set it alight. He also attempted to set Mr R's vehicle alight.[13] Mr R suffered a cut to his right eye and a small scratch to his stomach. Inexplanation of his conduct Mr Dunlea stated that "people should just not upset me,they know what happens when I get rowdy."District Court decision[14] In his District Court decision Judge Large considered the assault with a weaponand threatening to do grievous bodily harm (GBH) to Mr R to be the lead offending.2The Judge adopted a starting sentence of two years' imprisonment. He then upliftedthis sentence by three months for the second threat to do GBH, three months forunlawful taking of the motor vehicle, and a further one month in respect of each of theother three charges. This brought the starting sentence to one of two years and ninemonths' imprisonment.[15] Judge Large applied a three month uplift to reflect Mr Dunlea's previousoffending. He then applied a seven month discount for guilty pleas. This brought theend sentence to 29 months' imprisonment (two years and five months). The Judgeconsidered it was up to the Parole Board to set the terms of Mr Dunlea's release.Principles on appeal[16] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".4 It is onlyappropriate for this Court to intervene and substitute its own views if the sentence2 Police v Dunlea [2020] NZDC 4802.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].being appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.5SubmissionsAppellant's submissions[17] Ms Saunderson-Warner, counsel for Mr Dunlea, submits the sentence ismanifestly excessive due to insufficient credit for mitigating factors being applied.Further, Ms Saunderson-Warner contends Judge Large miscalculated the credit forguilty plea. No issue is taken with the starting point adopted.[18] She refers to the appellant's personal mitigating factors here relating toaddiction, childhood deprivation and mental health. Specifically Ms Saunderson-Warner notes: Mr Dunlea was overwhelmed by work pressures; had been contactedby his de facto stepfather who regularly beat him as a child; was subject to regularviolence as a child and witnessed his sister nearly being killed; his father waschronically ill; he acknowledges he has a drinking problem; is willing to getcounselling and attend rehabilitative programmes; struggles with mental health; isdiagnosed with PTSD and bipolar disorder; and has previously had suicidal ideation.[19] Ms Saunderson-Warner reports that Mr Dunlea was exposed to violence froma young age. When he was four years old his mother began a relationship with a gangmember who lived in the family home. Mr Dunlea was subject to regular physical andpsychological violence. At age 10 he was removed from his mother's care for sixmonths. When he was returned, the violence continued. He was removed from hismother's care again and placed with his father for a year. His father, however, was arecovering alcoholic. Mr Dunlea was, again, placed back into the care of his mother.He reports being beaten daily, including with weapons. When his sister was four yearsold Mr Dunlea witnessed her being suffocated and nearly dying. He also witnessedhis mother being beaten regularly.5 Ripia v R [2011] NZCA 101 at [15].[20] Unsurprisingly, Mr Dunlea's education suffered. He attended four primaryschools, was excluded from intermediate and then excluded from high school afteronly two years. He has no qualifications and reports he is dyslexic.[21] Ms Saunderson-Warner reports Mr Dunlea was diagnosed with bipolardisorder in 2018 and he says medication made his condition worse. He suffered fromvery low mood and suicidal ideation. He moved to South Otago and obtained farmwork and attempted to get counselling in attempt to make a fresh start. Mr Dunleaaccepts he is an alcoholic and he says he relapsed the day of the offending.[22] The decision of the Court of Appeal in Zhang v R is referred to here.6Ms Saunderson-Warner submitted that exposure to violence as a child is a form ofdeprivation that is causatively linked to the offending in this case. She maintains thatit is not necessary, in this case, for the information on deprivation to come via a culturalreport.[23] Addiction is a relevant factor here. While a discount in the realm of30 per cent, like in Zhang, is not suggested here, Ms Saunderson-Warner contends thatMr Dunlea's alcohol addiction should not have been ignored. Further, it is submittedthe mental health issues that Mr Dunlea suffers are all linked and relevant to themanner in which he offended. Ms Saunderson-Warner says a global discount of 15 percent is appropriate.[24] She then notes quite properly that Judge Large made a mathematical error incalculating the guilty plea discount. A discount of 25 per cent, from a starting pointof 36 months, should have been nine months, not the seven month discount the Judgeallowed. And she maintained that, in any event, a full 25 per cent discount isappropriate.Respondent's submissions[25] Mr Smith, counsel for the respondent, suggests the starting points adopted byJudge Large were low, given the overall circumstances of the offending. Mr Smith6 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.further submits there was no material evidence presented to the Judge that allowedcredit for mitigating factors.[26] Mr Smith referred me to Faaleaga v R in which the Court of Appeal consideredsentence starting points for charges of threatening to kill or do GBH.7 The Courtconsidered a consistent pattern in sentencing for charges of this nature waschallenging.8 Mr Smith submits the threats made by Mr Dunlea here were alliedclosely to the actual violence and damage to the victim's property. Mr Dunleadeliberately smashed the bottle to illustrate its lethality. That offending occurred tooin close proximity to the victim's home.[27] Mr Smith maintains the starting point of two years imprisonment for the threatand actual violence was low, given Mr Dunlea's culpability.[28] The credit for mitigating factors sought by Mr Dunlea's counsel, Mr Smithsays, is not substantiated by evidence, or to the extent that there may be some relevantevidence provided, it is not deserving of credit.[29] Mr Smith notes that Judge Large acknowledged that Mr Dunlea explained theoffending arose out of him being under stress. He submits that by Mr Dunleaminimising both his intoxication and the extent of the offending, he has shown limitedinsight into his offending. Further, while he has had the benefit of rehabilitativeprogrammes in the past, he has not taken advantage of them.[30] Overall, it is accepted for the respondent that Mr Dunlea's disadvantagedbackground may be deserving of some credit, even though it is entirely self-reported.Mr Smith says, however, the medical issues raised are not causative of the offending,in the sense of being operative at the time. Further, the medical issues would notrender imprisonment disproportionately severe.7 Faaleaga v R [2011] NZCA 495.8 At [9].[31] The matters that Mr Dunlea now seeks credit for, according to the Crown,overlap to a considerable degree which gives rise to a risk of more substantialdiscounts being given than would otherwise have been appropriate.[32] Finally, Mr Smith contends that Judge Large actually intended to give a sevenmonth discount for guilty plea, which is almost 20 per cent. Mr Smith considersJudge Large explained that he was not allowing full credit for guilty plea, mostprominently because of the strength of the prosecution case.AnalysisGuilty plea discount[33] As I have noted, Ms Saunderson-Warner submitted that Judge Large made amathematical error in deducting the 25 per cent discount for guilty pleas. The relevantpassages of the judgment are as follows:9[35] I do not think I can give you any credits other than for your guiltyplea. On a purely mathematical basis, 25 percent, on 36 months is a little overseven months.[36] The Hessell v R which authorises the Court to take into account guiltypleas, does not specify that the credit to be given must be 25 percent. It saysit can be up to 25 percent, so the allowance for guilty pleas is not a simplemathematical exercise.[37] Here your guilty pleas would have almost been inevitable because theweight of the evidence would have been overwhelming, I deduct seven monthsfor your guilty plea, which brings me to a sentence of 29 months'imprisonment.(emphasis added)[34] There is some room for ambiguity in these three paragraphs. But I consider,first, the fact that Judge Large stated a discount of 25 per cent, on 36 months, equatedto a seven month discount, and then he went and applied that seven month discountdoes support the view that the Judge's intention was to give a full 25 per cent discountfor the guilty pleas. That full 25 per cent discount equates to nine months, not a sevenmonth discount.9 R v Dunlea, above n 2. Emphasis added.[35] The Court of Appeal guidance on the issue provides that if it is clear that themathematical error resulted in a sentence that is more severe than that which the Judgeintended to impose, it must be corrected.10 In making a determination on that matter,this Court is required to conduct the sentencing exercise afresh to determine whetherthe end sentence was manifestly excessive, and a different sentence should have beenimposed.Starting point[36] My approach to the notional starting point for the lead offending differs fromthat of Judge Large. However, I do reach the same overall starting point of two yearsand nine months' imprisonment. For completeness, I include my analysis below.[37] I consider the lead offending to be the first charge of threatening to do GBH,to Mr R. There is no tariff decision as the circumstances under which such threats aremade vary greatly. Indeed, comparison to other cases has been viewed as offeringlimited assistance in setting the starting point, due to the heavily fact dependent natureof the charge.11 The following cases are illustrative of that point:(a) Newton v Police where a starting point of two years' imprisonment forthreatening to kill was held to be appropriate.12(b) Taylor v Police where a starting point of 18 months' imprisonment forthreatening to kill was adopted.13(c) Police v Hutchinson where a starting point of 14 months' imprisonmentfor threatening to do grievous bodily harm to a member of Parliamentwas adopted.1410 Ferris-Bromley v R [2017] NZCA 115 at [15].11 Newton v Police [2019] NZHC 1923 at [26].12 At [27].13 Taylor v Police [2014] NZHC 1139.14 Police v Hutchinson [2017] NZDC 20522.[38] In my view, the aggravating factors relevant to the offence here are the actualviolence, the use of a weapon15 and the proximity of the threat. There are no mitigatingfactors relevant to the offence. Threatening to cause GBH is a serious offence, themaximum penalty is seven years' imprisonment. I consider the use of the broken glassbottle as a weapon and the proximity of the threat to Mr R to be serious aggravatingfactors. In my view, a starting point of 18 months' imprisonment on the lead chargeof GBH was appropriate.Further uplifts[39] I consider an uplift of three months for the second charge of threatening tocause GBH, to Mr R's son, to be appropriate. The charge of assault with a weapon,namely a broken glass bottle, is also serious. This charge carries a maximum penaltyof five years' imprisonment. For this charge I apply an uplift of six months'imprisonment. I apply a three months uplift for the unlawful taking of a motor vehicle,and one month in respect of each charge of possession of an offensive weapon, theftand wilful damage. This leaves the total starting point of 33 months' imprisonment.The sentence is summarised in table format below:Description Date Starting pointThreatening to do GBH 13 November201918 monthsUplift for threatening to do GBH + 3 monthsUplift of assault with a weapon + 6 monthsUplift for unlawfully taking motor vehicle + 3 monthsUplift for possession of an offensive weapon + 1 monthUplift for theft + 1 monthUplift for wilful damage +1 monthStarting point 33 months(two years and ninemonths)15 Sentencing Act 2002, s 9(1)(a).[40] In respect of personal aggravating factors, I agree with Judge Large that anuplift of three months to reflect Mr Dunlea's previous convictions is appropriate. Thishistory involved two convictions for injuring with intent to injure, reckless disregardand six charges of threatening to kill. This bring the starting sentence, beforemitigating factors are deducted, to 36 months' imprisonment (three years).Mitigating factors[41] The mitigating factors as they relate to Mr Dunlea are his guilty plea. Inaddition, Ms Saunderson-Warner submits a global discount for addiction anddeprivation is justified here.Addiction[42] Firstly, I note the effect of voluntary consumption of alcohol, at the time ofoffending, cannot be taken into account as a mitigating factor.16 The Court of Appealin Zhang v R held that where there is a causal nexus between the offending and theappellant's addiction issues a discrete discount may be warranted.17 This ought to bebased on "persuasive evidence, as opposed to mere self-reporting."18 Where thataddiction is non-causative it will be of little mitigatory relevance.19 The pre-sentencereport dated 24 February 2020 states Mr Dunlea acknowledges he has trouble withalcohol. He has previously completed six months in a Drug Treatment Unit. Thereport links Mr Dunlea's impulsive behaviour and alcohol abuse to the extremeresponse that lead to the events in this case. I acknowledge, however, that the reportcontains a degree of self-reporting. In my view, Mr Dunlea has failed to satisfy theCourt that there is a sufficient causal nexus between his addiction and the offending.As such, a discrete discount is not justified. For completeness, I note the principlesof rehabilitation and reintegration in sentencing may be engaged in relation toaddiction issues. While I do not consider that a discrete discount in sentencing iswarranted here, I note it would desirable, and Mr Dunlea would benefit from, addictiontreatment in the future.16 Sentencing Act, s 9(3).17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [147]-[148].18 At [148].19 At [147].Deprivation[43] Social, cultural or economic deprivation with a clear nexus to the offendingmay be a mitigating factor in sentencing.20 Ms Saunderson-Warner submitsMr Dunlea has mental health issues which stem from his childhood trauma anddeprivation. This position is supported by the pre-sentence report dated 24 February2020. This records that Mr Dunlea witnessed, and was regularly subjected to, seriousviolence throughout his childhood.[44] Having given the report and the circumstances of this case carefulconsideration, I do not consider a discount for deprivation to be available. There isnot a sufficiently clear nexus between the offending in this case, and the deprivationthat Mr Dunlea has suffered as a result of his childhood experiences.[45] Furthermore, I note the report states Mr Dunlea minimised the violence,claiming much of the summary of facts was untrue. I accept Mr Smith's submissionhere that Mr Dunlea appears to lack insight into his offending.[46] I consider Mr Dunlea's early guilty pleas warrant a discount of 25 per cent.While the evidence against him may have been overwhelming, he did plead guiltypromptly and is thus entitled to significant discount as a reflection of the value of earlyguilty pleas.[47] Applying this full 25 per cent discount for the guilty pleas which I acceptJudge Large had in mind here (despite the mathematical error he clearly made in thiscase) this amounting to some nine months, the appropriate final sentence here is oneof 27 months' imprisonment (two years and three months). In any event, this is anappropriate end sentence if the sentencing exercise here were to be conducted afresh.And it is some two months less than the sentence which was imposed of 29 months'imprisonment.20 At [162].Conclusion[48] To the extent I have noted above, this appeal is allowed. The sentence of29 months (two years and five months) is quashed. In its place a sentence of27 months (two years and three months) is substituted....................................................Gendall JSolicitors:RBP Law, DunedinCopy to:Sarah Saunderson-Warner, Barrister, Dunedin