DAWSON v NEW ZEALAND POLICE [2020] NZHC 2296

DAWSON v NEW ZEALAND POLICE [2020] NZHC 2296 [4 September 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000106[2020] NZHC 2296BETWEEN WILLIAM EDWARD DAWSONAppellantAND NEW ZEALAND POLICERespondentHearing: 3 September 2020Counsel: K L Chalmers for the AppellantA Harvey for the RespondentJudgment: 4 September 2020JUDGMENT OF DOOGUE JThis judgment was delivered by Justice Doogueon 4 September 2020 at 9.30 am.Registrar/ Deputy RegistrarDate:Solicitors:Crown Solicitor, ChristchurchIntroduction[1] The appellant, Mr Dawson, appeals a sentence of 26 months' imprisonmentimposed by Judge Garland on 26 June 2020.1 The sentence was imposed on him afterhe pleaded guilty to: two charges of burglary;2 unlawfully using a motor vehicle;3common assault;4 and presenting a firearm.5[2] Mr Dawson appeals his sentence, primarily upon the following grounds:(a) the sentence imposed by the Judge was manifestly excessive;(b) Mr Dawson should have received a greater discount for his cooperationwith police, and a further discrete discount of five per cent for remorseand offer to pay reparation; and(c) not enough credit was given in respect of guilty pleas entered againstthe lead charges.Factual backgroundThe burglary charges[3] In relation to the two burglary charges, the location of the premises was aremote rural residential property. The victim and his family were not at home duringthe period that these two burglaries took place.[4] At about 9.00 am on 11 April 2019, Mr Dawson drove to a rural residentialarea in Loburn, North Canterbury, with the intention of committing a burglary. Hearrived at the victim's property and entered several sheds. He began loading up hismotor vehicle with items from the shed, all belonging to the victim, including a gasbottle, a small safe containing ammunition, power tools, and chainsaws. He then usedcrowbars and a chainsaw to remove a large firearm safe, which was affixed to the shed1 Police v Dawson [2020] NZDC 12164.2 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years' imprisonment.3 Section 226(1); maximum penalty seven years' imprisonment.4 Section 196; maximum penalty one year's imprisonment.5 Arms Act 1983, s 52(1); maximum penalty six months' imprisonment or $10,000 fine.wall. That safe contained a .22 calibre semi-automatic rifle. He then left, with theproperty that he had stolen.[5] At about 10.00 am on the same day, Mr Dawson returned to the property withan associate, this time driving a larger vehicle. Both men entered a shed on theproperty, and gathered further items belonging to the victim, loading all the stolenmaterials into their vehicle. These items included more power tools, a flat screentelevision, and speakers. Mr Dawson's associate drove away from the property on thevictim's motorbike. Mr Dawson drove away in the vehicle, with the other stolenproperty aboard.[6] During both burglaries, Mr Dawson hid his appearance by wearing a jacketwith a hood up and at times wearing gloves. His associate wore a balaclava. Theestimated total value of the property stolen was just under $35,000.[7] A search warrant relating to the burglaries was executed on 15 April 2019, atan address which was occupied by a person known to Mr Dawson. That associateassisted the police in recovering a large portion of the stolen property, including thefirearm, the motorbike, and a number of other valuable items. The estimated value ofthe property recovered was $25,657, meaning that the value of the stolen property notrecovered is $9,219.93.[8] On 19 April 2019, Mr Dawson voluntarily went to the police and admitted tothe burglaries.[9] In explanation for the alleged offending, Mr Dawson said he was intending tovisit someone, however he went to the wrong place. He said he was under theinfluence of alcohol and could not remember returning to the address.The motor vehicle charge[10] On 8 August 2019, a Subaru Impreza motor vehicle was stolen from an addressin Christchurch. On 8 September 2019, Mr Dawson was found driving the stolenvehicle in Christchurch. Significantly, it had the plates changed and showed a differentregistration plate. Mr Dawson was stopped and spoken to by police. The policeinspected the VIN of the vehicle and realised that the VIN belonged to the stolenvehicle. Mr Dawson claimed that he did not know that the vehicle was stolen.The firearm and assault charges[11] In relation to the assault and firearm offences, Mr Dawson and the victim wereknown to one another. At the relevant time, Mr Dawson was in a relationship with thevictim's daughter. At about 6.00 am on 14 December 2019, Mr Dawson was at thevictim's home in Oxford. Mr Dawson was having a verbal argument with the victim'sdaughter. The victim went inside with her daughter, and picked up the phone to callthe police.[12] Mr Dawson walked into the house carrying a shotgun. He pulled out the phonecord from the wall so the victim could not call the police, and then he pointed theshotgun at her, holding it at waist height, telling her "don't call me a black bastard".Mr Dawson then pushed the victim in the shoulder area, forcing her to walkbackwards. The victim's daughter jumped in between her mother and Mr Dawson totry and protect her mother, telling Mr Dawson not to threaten her mother.[13] Mr Dawson then went outside and moved his quad bike around the back of theproperty, which had a dog sitting on the back. The victim went outside to try and untiethe dog, and Mr Dawson told her not to otherwise he would punch her. She continuedto walk towards the bike, and Mr Dawson walked towards her and he pushed her inthe face with an open palm, knocking her glasses off her face. She stumbledbackwards and fell against a hedge which broke her fall. As a result, she did not sufferany injuries, but she was very much shaken.[14] In explaining the offending, Mr Dawson said he was not under the influence atthat time, and things just got out of control.The District Court sentencing[15] The Judge arrived at an overall starting point of three years' imprisonment.This was made up of the following notional starting points:(a) two and a half years' imprisonment for the two burglary charges;(b) three months' imprisonment for the motor vehicle charge; and(c) three months' imprisonment for the firearm and assault charges.[16] A discount of four months (approximately 11 per cent) was allowed forMr Dawson having taken responsibility for the offending, by having presented at thepolice station. As against that, he was not able to provide the victims with anyreparation.[17] A further discount of six months was given for Mr Dawson's guilty pleas,which came eight days before the judge-alone trial, but upon the amendment of twoof the "lesser charges". This was a discount of a little over 18 per cent.Approach to appeal[18] An appellant is able to appeal a sentence imposed as of right.6 The High Court,as the first appeal court, must allow the appeal if satisfied that there was an error inthe sentence imposed, and that a different sentence should be imposed.7[19] If the sentence under appeal can be properly justified, having regard to therelevant sentencing principles, this Court may not merely substitute its own views forthose of the sentencing judge. The exercise of the sentencing judge's discretion canonly be interfered with if the sentence imposed was manifestly excessive.[20] Toogood J captured the essence of the test in Larkin v Ministry of SocialDevelopment, saying:8The High Court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles. Whether asentence is manifestly excessive is to be examined in terms of the sentencegiven, rather than the process by which the sentence was reached.6 Criminal Procedure Act 2011, s 244.7 Section 250.8 Larkin v Ministry of Social Development [2015] NZHC 680 at [26], citing Ripia v R [2011] NZCA101 at [15].[21] Similarly, in Tutakangahau v R, the Court of Appeal held that:9 the focus is on the sentence imposed rather than the process by which thesentence is reached. That encapsulation of the position will no doubt representthe position in the vast majority of cases.[22] In addition to the identification of error, the applicant must persuade the appealcourt that the ultimate sentence imposed was outside the range available to thesentencing judge.SubmissionsAppellant's submissions[23] Ms Chalmers, for Mr Dawson, submitted that the starting point the Judge tookon the two lead charges of burglary was out of all proportion to the offending, in thathe considered them separately, coming to a cumulative adjusted starting point, whichdid not accurately reflect the offending. She submitted that the more accurate way tocalculate the starting point would be to consider the two burglaries as a whole.[24] Secondly, Ms Chalmers submitted that, having regard to the case of Arahangav R,10 and R v Nguyen,11 the starting point should have been 18 months to two years'imprisonment for the burglaries. She submitted that despite the value of the propertyobtained, the burglary should still fall within the lower end of the Arahanga scale.[25] Thirdly, Ms Chalmers advocated for a significant discount for Mr Dawson'scooperation with the police. She submitted that by presenting at the police station andadmitting to the offending, Mr Dawson significantly reduced the amount of effort andwork which the police would have needed to complete in order to solve the crime. Shesubmitted a discount of approximately 10-15 per cent for this factor alone would havebeen appropriate.[26] Fourthly, Ms Chalmers criticised the fact that the guilty plea discount wasbased on one set of the charges, and not on the total offending. She submitted the9 Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [36].10 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.11 R v Nguyen CA110/01, 2 July 2001.more accurate way of calculating a guilty plea discount on the totality of the offendingwould be to base it upon the lead charges or to average it based on all of the charges.She submitted that Mr Dawson should have been entitled to an 18-20 per cent discount.[27] Ms Chalmers responsibly conceded that the Judge's uplift of six months forthe remaining offending was appropriate.[28] This would mean a start point between 24-30 months' imprisonment.Ms Chalmers accepted that this in and of itself is not manifestly excessive.[29] Ms Chalmers then submitted that Mr Dawson should have been entitled to adiscount of approximately 10-15 per cent for his significant cooperation with thepolice, and a further 5 per cent for his remorse and his offer to pay reparation. Shesubmitted that Mr Dawson should have been entitled to an approximate discount of18-20 per cent for his guilty pleas.[30] Taking into account the Moses v R method,12 this would mean a minimumpercentage discount of 33 per cent, resulting in an end sentence of 16-20 months'imprisonment.[31] Ms Chalmers submitted that based on all the above factors, the sentenceimposed by the Judge was manifestly excessive and asks this Court to quash thatsentence and impose a sentence of 16-20 months' imprisonment.Respondent's submissions[32] Mr Harvey, for the respondent, submitted that a starting point of two and a halfyears' imprisonment on the two burglary charges was not manifestly excessive, and isconsistent with the guidance set out by the Court of Appeal in Arahanga,13 andNguyen.1412 Moses v R [2020] NZCA 296.13 Arahanga v R, above n 10.14 R v Nguyen, above n 11.[33] Mr Harvey also rejected Ms Chalmers' argument that the Judge essentiallydouble counted the aggravating features of the burglary charges.[34] Mr Harvey submitted that a discount of 18-20 per cent was appropriate forMr Dawson's guilty pleas.[35] In respect of the discount given for cooperation, Mr Harvey said that as this isa little over 11 per cent of the three-year starting point, no amendment is necessary. Infact, he says, it may have been generous in the circumstances.The starting point[36] The starting point of two and a half years' imprisonment on the two burglarycharges is not manifestly excessive, and is consistent with the guidance set out by theCourt of Appeal in Arahanga:15[78] This Court has deliberately not set a tariff for burglary because therange of circumstances in which the offence can be committed is so varied.Burglary of a domestic residence is a significant aggravating feature atsentencing due to the heightened risk of confrontation with the occupants.Dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months' to two years and sixmonths' imprisonment.[37] In Nguyen the Court of Appeal stated that it is necessary for the Court to"consider the combination of factors surrounding the offending conduct" as follows:16[17] It is necessary in every case to assess the criminality of the particularoffending. As we said in Mako, with reference to aggravated robbery, it isnecessary to consider the combination of factors surrounding the offendingconduct. In burglary cases, these include the degree of planning andsophistication in the offending, the nature of the premises entered, thekind and value of property stolen, damage done, the impact and potentialimpact upon occupants or owners of property, and the extent of theoffending where multiple burglaries are involved.[18] The range of circumstances in which the offence of burglary can becommitted is such that no tariff can be fixed. Entry into private homesgenerally will have an emotional impact giving rise to a sense of violationand insecurity for the owners that may not arise in the case of commercialpremises. The value of goods stolen from commercial premises may behigher.15 Arahanga v R, above n 10.16 R v Nguyen, above n 11.[emphasis added]Analogous cases[38] In Harraway v Police, the appellant appealed against a sentence imposed for avariety of offending, the most serious being one charge of burglary and unlawfulpossession of a firearm.17 The latter charge related to a .22 calibre rifle which wasstolen during the burglary. A starting point of 30 months' imprisonment was adoptedfor the burglary charge, which was dealt with globally alongside the firearms charge.18[39] The appellant had driven a stolen car from Dunedin to Waimate. There, he wasinvolved in taking two further vehicles, before driving to another address where hetook a .22 rifle and ammunition from a farm out-building. From there, he drove backto Dunedin.[40] Nation J noted that the offending was pre-meditated and that the property wastargeted to obtain a firearm. His Honour also rejected the submission that theoffending was significantly less serious because it was of an out-building rather thana dwelling:[27] The Court of Appeal have said that burglary of a residence is asignificant aggravating feature because of the heightened risk of confrontationwith the occupants but I do not consider that, for that reason alone, theburglary of a farm out-building should be treated as significantly less serious.From the summary of facts, it would appear Mr Harraway entered the out-building during the day, so there must have been some risk that someone fromthat farm could have been in the vicinity. Farmers and the owners of otherrural buildings are, in a sense, also especially vulnerable as far as burglariesare concerned. They do not normally have such buildings under constantsurveillance and must rely on the general honesty of all members of the publicand the respect which is normally afforded to their property. In that sense, anyburglary of a farm out-building means the offender is taking advantage of aproperty owner who is particularly vulnerable to burglary and who has to trusteveryone in the community to respect their property.[41] In Otter v Police, the High Court did not disturb a three-year starting point inrespect of two charges of burglary and one charge of obstruction.1917 Harraway v Police [2018] NZHC 761.18 Following credits, the burglary attracted a sentence of 24 months' imprisonment while the firearmscharge resulted in 12 months imprisonment to be served concurrently.19 Otter v Police [2015] NZHC 2857.[42] The appellant had worked for the victim as a labourer for about 10 years. Theappellant was familiar with the layout of the victim's property, including a work shedon the property which he had spent many hours working in. The property wassemi-rural, and there were no neighbours close by. After a falling out between theappellant and the victim, the appellant planned to burgle the victim's address. Theappellant obtained walkie talkies and a scanner, and went to the address with anassociate at night and cut a hole in the back of the shed to gain entry. With hisknowledge of the shed, he went to the fuse box and turned off the power. He locatedtwo gun safe keys and removed rifles from the safes. He returned the next night andremoved more property.[43] The appellant stole approximately 10 firearms and a large quantity ofammunition, as well as tools and hunting gear. The value of the property was between$40,000 and $60,000.[44] On appeal, Hinton J held that the aggravating features were the gross breachof trust, and premeditated targeting of the property which he knew to contain firearmsand items of significance to the victim beyond financial value. The large number offirearms was aggravating, as was the value of the property. There was damage to theproperty, and only six of the 10 firearms were recovered.[45] Hinton J embarked on a comparison of analogous cases:[16] In Shierney v Police, three years six months was adopted as thestarting point for a burglary of a garage of a residential property. The offenderreturned to the property several hours later. The owners were overseas. Rifles,ammunition, jewellery and electronic products were stolen. The value was notmentioned in the judgment. The starting point was upheld on appeal, althoughit was noted to be at the upper end of the available range.20 The factors inShierney were similar to the offending here.[17] Mr Jefferson suggested Shierney could be distinguished because ofthe large number of prior burglary convictions on the part of Mr Shierney, butthat is not a distinguishing feature as it is not relevant to the starting point.Mr Jefferson did seem to acknowledge that.[18] In Yukich v R, a starting point of 20 months' imprisonment was upheldon appeal, for the burglary of a rural farm house and shed. Eight shotguns,20 Shierney v Police [2014] NZHC 2963 at [13] and [23].three pistols, ammunition and other items were taken. It seems that there wasno loss as the offenders were shortly afterwards apprehended by the police.21[19] In Miller v Police, the burglary was of commercial premises and threefirearms were stolen to the value of $2,500. On appeal, Woodhouse J adopteda starting point of 15 months' imprisonment.22[20] In Yukich v Police (a different case to Yukich v R), a burglary of aresidential property was involved. Seven firearms and two hunting kniveswere stolen. The offending was opportunistic, but the offender then disposedof the guns and refused to disclose to whom. A starting point of two years wasadopted. On appeal, the Crown conceded that a starting point of 12 months'imprisonment was more appropriate.23 Lang J said, given the concession bythe Crown the appeal must be allowed. The case is not helpful as there was noanalysis on appeal of whether the starting point was appropriate.[21] In Wishnowsky v Police, a spree of seven burglaries of unoccupiedresidential homes involving the theft of firearms, electronics, jewellery andother property to the total value of $47,000, resulted in a starting point of threeyears six months' imprisonment. On appeal, that starting point was seen asstern but not unjustified.24Comparison to the present case[46] The starting point of two and a half years in respect of the two burglary chargesis not manifestly excessive. Considering both offences in the round, the aggravatingfeatures include:(a) the offending was pre-meditated, particularly on the second entry to theproperty when he returned with a larger vehicle and an associate toassist him with the theft;(b) the offending was determined, particularly in relation to the opening ofthe firearms safe which involved Mr Dawson using crowbars and achainsaw in order to gain access;(c) a semi-automatic .22 rifle and ammunition was taken during theoffending, after the determined effort set out above;21 Yukich v R [2010] NZCA 499.22 Miller v Police [2012] NZHC 3237.23 Yukich v Police HC Rotorua CRI-2008-463-90, 23 February 2009.24 Wishnowsky v Police HC Palmerston North CRI-2009-454-26, 14 August 2009.(d) Mr Dawson hid his appearance with a hood and wore gloves during theoffending, and his associate wore a balaclava;(e) the burglary was of a rural residential location, giving rise to a risk ofan encounter with the occupants (as in Harraway, this is notsubstantially diminished by the targeting of an out-building); and(f) the value of the property taken was substantial, totalling just under$35,000 (and $9,219 of this remains outstanding).[47] I consider that the starting point adopted by the Judge for the two burglarycharges was within an appropriate range. While the offending may not have targetedthe firearm, a determined effort was required to take it, which included taking achainsaw and crowbar to a gun safe. While only a single firearm may have been taken,it appears that this is a matter of good luck, rather than restraint on Mr Dawson's part.[48] I reject Ms Chalmers' argument that the Judge essentially double counted theaggravating features of the burglary charges. While he identified the specificaggravating features of both charges, he expressly arrived at a global starting pointwith reference to the totality of the offending.25The discount calculations[49] I note that this appeal was filed before the decision of the Court of Appeal inMoses.26 I take into account the comments of the Court of Appeal in Zhang, whichdeal with retrospectivity. 27 The methodology for calculating any discounts against asentence in this appeal should be based upon the guidelines contained within Moses.Credit for guilty pleas[50] Ms Chalmers submitted that a discount of 18-20 per cent is appropriate forMr Dawson's guilty pleas. She submitted that while Mr Dawson only pleaded guiltyeight days before trial, this was in reality an early plea in the context of the time25 Police v Dawson, above n 1, at [12].26 Moses v R, above n 12.27 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [187]-[199].required to finalise all of the charges. In particular, she noted Mr Dawson pleadedguilty to the burglary charges in May 2019.[51] The six month discount given by the Judge was a little over 18 per cent. Evenaccepting Ms Chalmers' explanation of the time it took for Mr Dawson to plead guilty,and if I were minded to give a discount of 20 per cent, the adjustment sought wouldbe little more than tinkering.Credit for cooperation[52] The Judge allowed a discount of four months for Mr Dawson's cooperationwith the prosecution. This is a little over 11 per cent.[53] The extent of the cooperation was essentially Mr Dawson presenting at thepolice station. In particular, Ms Chalmers submitted that Mr Dawson had significantlyreduced the amount of work which the police would have needed to complete in orderto solve this crime.[54] I find that the four month discount was appropriate, and perhaps generous, inthe circumstances. While I commend Mr Dawson for going to the police, I note hedid not immediately admit to the offending in its entirety. For example, he deniedhaving returned to the address for the second burglary, claiming that he was intoxicatedat the time. The Judge rejected this explanation as unlikely.28 I also note that thesentence must reflect the entirety of the offending, including the remaining charges(unlawfully using a motor vehicle, common assault, and presenting a firearm).[55] In relation to a further discount for remorse, I find that the Judge was correctnot to allow one. The Judge was clearly not persuaded by Mr Dawson's explanationthat he had gone to the wrong address intending to visit someone, or that he was underthe influence of alcohol and could not remember returning to the address for thesecond burglary.29 I also note Mr Dawson has not expressed any remorse about theassault and firearms offending, and the victim's statement records the serious impactthe incident has had on her.28 Police v Dawson, above n 1, at [11].29 At [11].[56] In line with the above, I agree with the Judge's conclusion that Mr Dawson didnot demonstrate remorse, let alone exceptional remorse to warrant a discount.Conclusion[57] The end sentence of two years and two months' imprisonment was notmanifestly excessive.[58] The three year global starting point was appropriate and reflected the seriousnature of the offending, which involved repeated entries into a rural residentialproperty, albeit a shed rather than a dwelling. A determined effort was made to steala firearm, which involved using a chainsaw and a crowbar to break into a gun safe.[59] The Judge gave an appropriate discount for the guilty pleas. Although this isthe one aspect of the sentence where I may have differed from the decision of theJudge and found a discount of 20 per cent may have been appropriate, this adjustmentalone would amount to little more than tinkering.[60] The Judge gave an appropriate discount for the level of assistance rendered tothe police. Given that Mr Dawson did not acknowledge his role in the second burglary,this discount was generous.[61] It was appropriate for the Judge not to give a discount for remorse.Result[62] The appeal is dismissed.Doogue J