THE QUEEN v JAMIE GEORGE DAGG [2003] NZCA 174 (7 August 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA127/03

THE QUEEN

v

JAMIE GEORGE DAGG

Hearing: 31 July 2003

Coram: Anderson J

Paterson J

Salmon J

Appearances: C J Tennet for Appellant

T A Simmonds for Crown

Judgment: 7 August 2003

JUDGMENT OF THE COURT DELIVERED BY SALMON J

[1]	In December 2002 the appellant stood trial before a jury in the District Court on charges of aggravated robbery, injuring with intent and attempted kidnapping.At the conclusion of the Crown evidence appellant’s counsel successfully argued that he should be discharged on the count of aggravated robbery.He then pleaded guilty to the remaining two charges.
[2]	In January 2003 he pleaded guilty in the District Court to unrelated charges arising from police drug operations.Those offences, which were committed whilst he was on bail in relation to the earlier charges, involved the sale of cannabis and methamphetamine, possession and offering to sell methamphetamine and threatening to kill.
[3]	He was sentenced in respect of both sets of offences on the same occasion.In respect of the first two convictions he was sentenced to three years imprisonment.In respect of the drug related offending he was sentenced to 18 months imprisonment.The two sentences were ordered to be served cumulatively.
[4]	The appellant appeals against sentence.He also seeks leave to appeal out of time.The appeal was filed approximately one month out of time due, apparently, to solicitor error.No opposition is made to this application and it is granted.

Background

[5]	As indicated above, the sentences relate to two quite separate incidents.The first, which related to events on 14 January 2002, arose when the appellant went to see the victim in order to recover money which he said had been stolen from him.The appellant dragged the victim from a caravan in which he was living, by his hair and punched him to the ground.He continued to kick and punch him while he was on the ground.The appellant tried to force the victim into his motor vehicle.When the victim refused to allow this, the appellant struck him with a metal bar some 30cm in length.The victim continued to resist and eventually the appellant drove off, leaving the victim behind.The victim suffered cuts, bruising and a kidney injury which, because of an existing condition which the assault aggravated, led to the left kidney having to be removed.
[6]	While the appellant was on bail awaiting trial for the above charges he came to the attention of the police during two drug operations.A number of transactions were executed as a result of visits by under-cover police officers to the appellant’s residence.In the course of these transactions the appellant sold drugs to an undercover officer.These were cannabis and methamphetamine on 5 July;more cannabis on 12 July;and on 26 July to a different officer, a further quantity of methamphetamine.
[7]	On the occasion of the first and third sales the appellant said to the officer words to the effect:

Better not be a cop ‘cause ifyou are I’ll kill you, I’ll shoot you man.

[8]	In August 2002 a search warrant was executed at the appellant’s residence.A quantity of methamphetamine was discovered in three small plastic snap-lock bags.The methamphetamine in these bags was worth approximately $360.
[9]	The grounds of the appeal are –

1. Each of the two sentences was manifestly excessive.

2. Cumulatively the sentences infringed the totality principle.

3. Cumulatively or individually the sentences breached s8(a), (e) and (g) of the Sentencing Act 2002.

4. This was a case where s16 of the Sentencing Act 2002 should have been applied.

[10]	A further ground of appeal is that it was an abuse of process for the Crown to maintain its position in respect of aggravated robbery at sentencing when the appellant had been discharged on that count pursuant to s347 of the Crimes Act 1961.
[11]	In his sentencing notes the Judge referred to the facts.He made one observation which has been the subject of criticism by counsel for the appellant.He said:

In respect of the January assault the motive really was murky.On one side we had the complainant talking about this motor cycle and you saying that he owed you money because he pinched it from you and you were going to sort that out.

Counsel’s point is that the dismissal of the aggravated robbery charge which was related to the motor cycle allegation disposed of that question and it should not have been referred to at all in the sentencing notes.

[12]	The Judge referred to the victim’s injuries which were cuts to his ear which required a stitch, a cut to the back of his head which required four stitches, black eyes, bruising on his face, ribs, stomach and upper body area.He then referred to the injury to the kidney and to the fact that it was a combination of the blows received from the appellant and the existing condition, which led to the removal of the kidney.
[13]	The Judge described the assault as a vicious and prolonged attack and said there was little concern on the part of the appellant, no comprehension and no remorse.Referring to the drug offending, he acknowledged that this was at a low level, but found that on a number of occasions the appellant had supplied cannabis and methamphetamine.The Judge noted that when the warrant was executed the appellant had money, a tick book and other cannabis items on his property and that this offending occurred while he was on bail and involved the supply and sale of methamphetamine and was accompanied by threats.
[14]	The Judge referred to the appellant’s previous convictions, a history of assaults, the last in 2001 and two cannabis convictions.
[15]	As to penalty, the Judge took a starting point in the region of three and a half years on the injuring and attempted kidnapping charges and he imposed a sentence of three years imprisonment.
[16]	On the drug related offending, the Judge accepted that three years was the appropriate starting point.He gave a credit of 12 months for the guilty plea, which reduced the sentence in that respect to two years and he held that the terms should be served cumulatively.He then looked at the totality of the sentence and decided that five years should be reduced to four years six months.He achieved that result by reducing the penalty for the drug related offending to 18 months.

Submissions

[17]	Mr Tennet submitted that if the kidney injury was disregarded,the injuries suffered by the victim were not severe.He referred to a number of decisions in support of his submission that the sentence for the injuring charge was manifestly excessive.He argued that a greater allowance should have been made for the guilty pleas.
[18]	As to the drugs charges, Mr Tennet described Mr Dagg as a small operator, although he acknowledged the seriousness of selling the drug “P”.Again he submitted that the sentence imposed was excessive.
[19]	For the Crown, Mr Simmonds, submitted that the January offending was serious enough to justify a starting point of four years, even though that might have been at the upper end of the range.He noted the Judge’s description of the attack as “vicious and prolonged”.He referred to the element of home invasion in this offending.

Discussion

[20]	We note that the appellant was assessed as having a low offending risk and a high motivation to change.We also note that he has severed his connection with gangs.We accept that this may not be the worst type of offending to which s189(2) of the Crimes Act applies.In reaching this conclusion we also accept that the damage to the victim’s kidney would not have occurred had it not been for the pre-existing condition.We accept the validity of Mr Tennet’s argument that the starting point may have been too high and that a more generous allowance could have been made for the plea of guilty.Whilst the plea occurred at the end of the Crown case during trial, it followed a successful challenge to the more serious charge of aggravated robbery.There was, of course, nothing to prevent the appellant pleading guilty to the other two charges at an earlier date, but that it seems, would not have prevented the trial from proceeding in relation to the more serious charge.
[21]	We think that it is appropriate to start by considering the totality of the sentence.There is no doubt that the District Court Judge was right to impose cumulative sentences, given the quite distinct events from which the charges arose.
[22]	In considering the totality of the sentence, a particularly aggravating feature is that the drug related offending occurred whilst the appellant was on bail.
[23]	On the other hand, we think it reasonable to take into account the assessment of the appellant as having a low risk of re-offending and a high motivation for change.In this regard we have considered the material provided to the District Court by counsel at sentencing.
[24]	Taking all these matters into account, we consider that the term of imprisonment of four years six months was manifestly excessive and that a total term of imprisonment of four years was the limit of what was appropriate.
[25]	In view of our comments about the injuring charge, the appropriate adjustment to make is to reduce the sentence imposed on that count and the attempted kidnapping to two years six months.
[26]	The appeal is allowed.A sentence of four years imprisonment is substituted for the sentence imposed in the District Court of four years six months.

Solicitors:

Crown Solicitors, Auckland