DASHWOOD v NEW ZEALAND POLICE [2020] NZHC 913

DASHWOOD v NEW ZEALAND POLICE [2020] NZHC 913 [5 May 2020]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-020-002430[2020] NZHC 913ROBERT JULIAN DASHWOODvNEW ZEALAND POLICEHearing: 28 April 2020Appearances: D Foster for the AppellantF E Cleary for the RespondentJudgment: 5 May 2020JUDGMENT OF COOKE J[1] Mr Dashwood pleaded guilty to one charge of assault with intent to injure as aparty. 1 He was sentenced to 12 months' imprisonment on 4 March 2020 in the DistrictCourt at Hastings.2 Judge Sygrove directed the sentence to be served cumulative onhis existing term of imprisonment for sexual offending.[2] Mr Dashwood appeals his sentence on the grounds the District Court Judgeerred by misconstruing the summary of facts, and uplifted the sentence because hemisunderstood Mr Dashwood's actions.1 Crimes Act 1961, ss 66 and 193 maximum penalty three years' imprisonment.2 New Zealand Police v Dashwood [2020] NZDC 3849.Factual background[3] Mr Dashwood is 28 years old and a patched member of Black Power. At thetime of the offending he was serving a sentence at Hawkes Bay Regional Prison. Hisco-offenders are also Black Power members. The charges arose from a planned groupattack on another inmate. The incident was captured on the Hawkes Bay RegionalPrison's CCTV system. The victim is a fellow inmate and a patched member of theMongrel Mob.[4] At approximately 1.30 pm on 9 May 2019 the victim was in wing three of theHigh Security Unit. Corrections staff unlocked prisoners allowing them to mix. OnceCorrections staff had exited the wing Mr Dashwood's co-offender, Mr Young-Gray,went to the victim's cell, followed by the victim. The other co-offenders, MessrsWereta and Arahanga, stood in the corridor a short distance from the cell. The victimwas positioned just inside the cell with his back to the door.[5] Mr Dashwood moved from the corridor to just outside the cell where heremained as lookout. Mr Wereta then entered the cell and punched the victim with aclosed fist in the back of the head with sufficient force to cause the complainant to fallforward and onto his bed, face down. Mr Wereta continued to punch the complainantabout the head as he lay on the bed. Mr Young-Gray held the victim down.[6] Mr Arahanga then entered the cell, stepped onto the bed and stomped on thevictim's head and neck as he lay face down on the bed. He stomped on the victimapproximately 15 to 20 times. He then punched the victim numerous times around thehead area. At some point during the attack Mr Wereta removed the victim's shoes.[7] The victim managed to get himself up off the bed and attempted to leave hiscell. Messrs Young-Grey, Wereta and Arahanga struggled with him and pulled himback into the cell where the assault continued. While this occurred, Mr Dashwoodclosed the cell door. Mr Dashwood remained outside the cell door in order to preventthe victim from escaping, or anyone else coming to his aid.[8] A short time later the victim managed to escape from his cell and into thecorridor. The offenders left the cell, Mr Mereta taking the victim's shoes with him.[9] The victim refused medical treatment and there are no medical records of hisinjuries. Corrections staff, however, observed bruising and swelling to his face.District Court decision[10] The Judge found this was a "gutless assault" and noted throughout the assaultMr Dashwood remained outside the cell door as lookout, and made no attempt to assistthe victim.3 He then observed that "after the assault and beating that the complainantgot you closed the cell door with him still inside and you remained outside the celldoor in order to prevent him from escaping or anyone else coming to his aid".4 TheJudge concluded Mr Dashwood's role was equally culpable as his co-offenders.[11] The Judge adopted a starting point of 18 months' imprisonment with an upliftof four months for Mr Dashwood's previous convictions resulting in an end sentenceof 22 months. After considering totality the Judge held an end sentence of 12 months'imprisonment was appropriate.Approach to appeal[12] This is a first appeal against sentence under s 244 of the Criminal ProcedureAct 2011. Under s 250, the appeal court must allow the appeal if satisfied that:(a) For any reason, there is an error in the sentence imposed on conviction;and(b) A different sentence should be imposed.[13] A sentence appeal is an appeal against a discretion and only if there is an errorof principle should the appellate court re-exercise the discretion. An error of principleincludes an error of fact or law, failing to take into account a relevant consideration,or if the decision was plainly wrong.5 The focus is on the final sentence and whetherthat was in the available range, rather than the exact process by which it was reached.63 At [1].4 At [2].5 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].6 Ripia v R [2011] NZCA 101 at [15].Was there a factual error by the Judge?[14] Mr Foster for Mr Dashwood submits the Judge misinterpreted the summary offacts in finding that Mr Dashwood remained outside the cell door after the assault toprevent the victim from escaping. Mr Foster points out that, properly interpreted, thesummary of facts records that Mr Dashwood standing outside the door while theassault took place, and that he left with the other offenders. Mr Foster argues that thiserror resulted in the Judge misunderstanding the level of Mr Dashwood's culpability,which resulted in a manifestly excessive end sentence.[15] I do not accept that the Judge misunderstood the facts in a way relevant toculpability. The factual circumstances of the offending were relativelystraightforward. The Judge correctly identified Mr Dashwood's role was to act aslookout. He also correctly identified that Mr Dashwood closed the cell door in orderto prevent the victim escaping or anyone else coming to his aid. The Judge's statementthat this occurred "after" the assault is a misdescription, but I do not accept the Judgemisunderstood the position. It was simply an awkward use of language.Culpability[16] Mr Foster further argues the appropriate starting point ought to have been sixmonths imprisonment, referring to R v Penewi which also concerned a group assaulton another inmate from a rival gang in prison.7[17] In my view this case is different as Mr Penewi was not charged as a party tothe main offending but solely for his own actions in attempting to kick the victim. TheJudge found his actions were "not serious compared to other offending of this type"and the offender "played a relatively minor role in the attack". Here Mr Dashwoodwas charged as a party to recognise his role in a planned group attack of a reasonablyserious nature.[18] I accept, however, that it may be appropriate to impose a lesser sentence on anoffender guilty as a party if they had a less significant role in the commission of the7 R v Penewi [2019] NZHC 479.offence.8 That might be so in relation to someone acting as a lookout rather than anassailant. In R v Betham the defendant faced charges of manslaughter as a party arisingfrom a gang-related attack on a fellow prisoner.9 The Judge was satisfied thatMr Betham did not physically deal any blows but encouraged and assisted in the attackby acting as lookout, and accepted that his involvement was less culpable than his co-offenders adopting a starting point of seven years.10 A starting point of nine years wastaken for his co-offender who had participated by remaining in the cell throughout theclose attack to provide support and back-up if needed.11[19] A range of factors may be relevant to assessing whether an offender liable as aparty should receive a lesser sentence than the principal offender. If the offence isparticularly serious, such as murder or manslaughter, there may be greater culpabilityattached to committing the principal acts. This may still be so with less seriousoffending. If the offending is premediated and proceeded as planned, there may beless significance in the differing roles that each played, however. Much depends onthe circumstances. For example, if the person guilty as a party primarily orchestratedthe offending their culpability might even be greater than the principal offendernotwithstanding that they did not themselves commit the assault.[20] Here the Judge concluded that Mr Dashwood's role was "as important andculpable as the three other offenders". He sentenced Messrs Wereta and Arahanga tothe same sentence adopting exactly the same uplifts and discounts.12 That approachmay be regarded as an available conclusion given this was a premeditated gang relatedprison beating. For myself I would still see some remaining difference in culpability,but I accept it was open to the Judge to regard the culpability of all the offenders asbeing equivalent in this kind of case. There is no error in itself in doing so.8 See Geoff Hall Hall's Sentencing (looseleaf ed, LexisNexis) at APPII.6.1.9 R v Betham [2016] NZHC 2107.10 At [81]–[82] and [88]–[89].11 At [63]–[64] and [70].12 That is a starting point of 18 months, uplifted to 22 months for previous offending, then reducedto 12 months – Police v Wereta [2019] NZDC 23232, Police v Arahanga [2020] NZDC 3946.Mr Young-Gray was sentenced by a different judge, and his sentence involved other offending,with the prison assault held to warrant a 18 month starting point – Police v Young-Gray [2019]NZDC 26466.The end sentence[21] Mr Foster argued that the end sentence was manifestly excessive. The Judgewent through a somewhat unusual exercise in reaching the final sentence. He startedwith 18 months, uplifted for four months for "an appalling history of criminality", andthen reduced the sentence to 12 months' imprisonment because of "an allowance fortotality".[22] Totality did not apply in any direct sense here as Mr Dashwood was only beingsentenced for a single offence. But it is recognised that the totality principle can berelevant to the imposition of sentences when the defendant is already serving a termof imprisonment. Such sentences are imposed cumulatively on the sentence alreadybeing served, as the Judge did here, subject to the application of what can be describedas the totality principle. But the Court of Appeal have emphasised that the applicationof the totality principle in this sense has limited application.13 In Tryselaar the Courtof Appeal said:[18] Offending in the prison environment, particularly where thatoffending goes to the maintenance of the discipline needed to effectivelymanage a penal institution, demands a stern response. That would be seriouslyundermined if sentences for such offending required adjustment to reflect thefact that the offender is already serving a sentence of imprisonment. [23] For that reason any adjustment for totality in the present case does not seem tome to be justified. On the other hand an 18 month starting point may be regarded ashigh given the comparable cases I address below, particularly given that Mr Dashwoodacted only as a lookout. Furthermore the Judge gave no discount for a guilty plea ashe should have done.[24] What matters is the end sentence, rather than the process by which it has beenreached.14 In addition to R v Penewi,15 the following cases involving prison assaultscan be considered by way of comparison.13 See Tryselaar v R [2012] NZCA 353; R v Connelly [2010] NZCA 52; Kepu v R [2011] NZCA 104.14 Ripia v R, above n 6.15 R v Penewi, above n 7.(a) Kepu v Police:16 The offender and another inmate went to the victim'scell. The victim was subject to a prolonged assault. He sufferedmultiple deep stab wounds to his back and torso as well as swelling andbruising to the right temple area. After the assault occurred theappellant and his co-offender left the victim's cell and attempted toconceal their actions by cleaning themselves and attempting to disposeof clothing and other items. The District Court Judge adopted a startingpoint of 15 months' imprisonment. The offender appealed on thegrounds the sentence ought to have been concurrent. Muir J consideredthe offending involved planning and premeditation, that it occurredwithin the prison environment, serious injury, attack to the head and thefact the attack was prolonged and coordinated. The Judge commentedthe starting point adopted by the District Court Judge was lenient, anddetermined that the sentence was not manifestly excessive.(b) R v Stewart:17 Three defendants were involved in a coordinated attackon a fellow inmate at Hawke's Bay regional prison. One acted aslookout, guarding the door to the cell where the attack took place andprevented Corrections officers from entering the cell. He was chargedas a party with assault with intent to injure. The District Court Judgeadopted a starting point of 18 months' imprisonment for all defendantsirrespective of their roles.18 The other two defendants unsuccessfullyappealed to the High Court, on the grounds a sentence of homedetention should have been imposed.19(c) Haeata v New Zealand Police:20 While serving a sentence at RimutakaPrison the appellant attempted to prevent a Corrections officer frommoving items of property. In the resulting scuffle the appellant pulledout a makeshift weapon from his pocket – a sock with two pool ballsinside. He swung the weapon and forcefully struck the officer with it.16 Kepu v New Zealand Police [2016] NZHC 2410.17 R v Stewart [2019] NZDC 24535.18 At [8].19 Stewart v R [2020] NZHC 60; and Papa v R [2020] NZHC 80.20 Haeata v New Zealand Police [2019] NZHC 3268.The starting point of 18 months' imprisonment was upheld on appealto the High Court, but the end sentence adjusted to 12 months'imprisonment to reflect a discount for the appellant's youth.[25] In the present case a starting point of approximately 12 months' imprisonment,reflecting Mr Dashwood's lesser participation as a lookout may have been appropriate.An uplift for Mr Dashwood's significant criminal history along the lines adopted bythe Judge would then have been appropriate. A discount for the guilty plea shouldthen have been applied. That would have resulted in an end sentence equivalent tothat which the Judge ultimately imposed. In my view the end sentence of 12 months'imprisonment is not outside the available range, and is not manifestly excessive.[26] For these reasons the appeal is dismissed.Cooke JSolicitors:Foster Law, Hastings for the AppellantCrown Solicitor's Office, Napier for the Respondent