Dodd v R [2013] NZCA 138 (7 May 2013)

Last Updated: 15 May 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA570/2012 [2013] NZCA 138

BETWEEN NICKY BRIAN DODD Appellant

AND THE QUEEN Respondent

Hearing: 17 April 2013

Court: Harrison, Allan and Clifford JJ

Counsel: H D M Lawry for Appellant J E Mildenhall for Respondent

Judgment: 7 May 2013 at 10.15 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Following his pleas of guilty, Nicky Dodd was sentenced in the High Court at Whangarei to a total of seven years imprisonment on conviction for charges of methamphetamine dealing, conspiracy to supply a precursor substance, conspiracy to supply cannabis, cannabis cultivation and robbery.[1] He appeals on the ground that the sentence was manifestly excessive.

Background

[2] Mr Dodd’s offending fell into two distinct categories. He committed the discrete offence of robbery in August 2009. Mr Dodd had asked a Boyd Norgrove to come to his house to carry out some repairs on a motorbike. Mr Norgrove drove there in a Holden motor vehicle which he had recently sold. While Mr Norgrove was carrying out the repair work in Mr Dodd’s garage, a Samuel Edwards arrived at Mr Dodd’s house. He apparently held a grievance against Mr Norgrove. Mr Edwards met Mr Dodd before the two of them went to the garage. Mr Dodd closed the door behind him and then Mr Edwards started punching Mr Norgrove around the head. There was no suggestion that Mr Dodd participated directly in this violence.
[3] Mr Dodd then directed Mr Norgrove to give him the keys to the Holden car and also to a BMW car which was at Mr Norgrove’s address. Mr Dodd must have accepted, for the purposes of his later plea, that Mr Norgrove complied with the direction under a threat of further violence. On Mr Dodd’s instructions, a third party drove Messrs Edwards and Norgrove to the latter’s home in his Holden. The third party drove away from there in the Holden, taking also some car wheels; Mr Edwards drove off in the BMW. The police later apprehended Mr Dodd in the stolen Holden.
[4] Mr Dodd was charged with aggravated robbery. On 14 November 2011, the day his trial was due to commence in the District Court, the Crown accepted Mr Dodd’s offer to plead guilty to an amended charge of robbery. Mr Edwards pleaded guilty to one charge of wounding with intent to injure. On 18 November 2011 he was sentenced to a term of two years and ten months imprisonment.
[5] Mr Dodd’s drug offending occurred around the same time. The police had undertaken a covert investigation into the activities of a motorcycle gang which was involved in methamphetamine offending in Northland. In accordance with a warrant issued in the High Court, the police intercepted text messages and audio communications passing between a number of people. Messages sent from and to his cell phone revealed Mr Dodd’s participation in drug dealing between July and September 2009. He later pleaded guilty to three counts of supplying methamphetamine, 13 counts of offering to supply methamphetamine, one count of conspiracy to supply methamphetamine, two counts of conspiracy to supply pseudoephedrine and one count of conspiring to supply cannabis.
[6] Mr Dodd was charged along with seven others. Their trial was set down to commence in the High Court on 7 February 2012 for a duration of five weeks. The next day, Mr Dodd pleaded guilty to all except one charge and two days later pleaded guilty to the remaining charge of cultivating cannabis.

High Court

[7] Woodhouse J treated the robbery and drug offending as discrete in terms of time, place and circumstances. He imposed cumulative sentences accordingly. On appeal, Mr Lawry does not challenge this approach.
[8] On the drug dealing charges, Woodhouse J was satisfied that the supplying and offering to supply methamphetamine offending was frequent and continuous. In his assessment it fell within what is known as band two on the Fatu[2] scale, justifying a starting point of four and a half years imprisonment. An uplift of two years was applied for the other drug offences. Against this adjusted starting point of six and a half years, the Judge allowed Mr Dodd reductions of: (a) six months for personal circumstances; (b) five months for the nine months spent on electronically monitored (EM) bail; and (c) seven months for the guilty pleas. In the result, the end sentence fixed for the drug charges was five years imprisonment.
[9] On the robbery charge, Woodhouse J adopted a starting point of three years. He applied an uplift of three months on account of Mr Dodd’s relevant previous convictions, including one for aggravated robbery. He allowed a five per cent or two month discount for a late guilty plea. In the result, the end sentence fixed for the robbery charge was three years and one month.
[10] On a totality basis, Woodhouse J was satisfied that a cumulative sentence of eight years and one month would be excessive. So he reduced it to a total of seven years imprisonment – comprised of four years for the drug dealing and three years for the robbery.

Decision

[11] On appeal Mr Lawry challenges Mr Dodd’s sentence on a number of fronts. He says that it is manifestly excessive; and that a sentence of no more than five years imprisonment was warranted. He says that the final sentence for the drug offending should not have exceeded four years imprisonment; and that any uplift on account of the robbery charge by way of a cumulative sentence on a totality basis should not have exceeded one year.
[12] We will start with the drug offending, which is plainly the more serious. Mr Lawry has focussed his challenge on Woodhouse J’s finding that the total quantity of methamphetamine involved in the 13 offences of offering to supply was around 20–25 grams. He says there was insufficient proof of supplies above five grams, especially given that there is no evidence about the extent to which the purity of the drugs had been reduced.
[13] While we accept the Judge’s sentencing notes are at times hard to follow and that there is no direct evidence to support his finding on methamphetamine quantities, the intensity of the communications intercepted over a one month period between 26 August 2009 and 17 September 2009 show that Mr Dodd was regularly offering to supply quantities of about one gram of methamphetamine for sale. Direct evidence of actual quantities available for sale is rare in such cases. However, this factor does not disqualify the sentencing judge from making an evaluative finding.
[14] In our view Woodhouse J was entitled to infer that Mr Dodd was in a position to make good on his 13 offers to supply methamphetamine. On that basis, the amount involved exceeded 13 grams. Additionally he actually supplied $300 worth of methamphetamine. And there was nothing before the Judge which might suggest that the purity of what was on offer had been reduced.
[15] In aggregate, Mr Dodd’s offending on the supplying and offering to supply charges took him well over the three year threshold for eligibility for sentencing under Fatu’s band two. We accept Ms Mildenhall’s submission that the nature and extent of his intercepted communications establish that Mr Dodd was a pivotal participant in a reasonably sophisticated, large scale commercial operation. As this Court recognised in Fatu, quantity and purity of drugs are not the only criteria for determining where offending falls within a particular sentencing band. The sentencing process is a wide ranging inquiry designed to evaluate culpability. Those who play reasonably substantial roles in methamphetamine dealing operations can expect sentences towards the higher end of the relevant band. A starting point of four and a half years for Mr Dodd’s supplying and offering to supply offending cannot be termed excessive.
[16] Mr Dodd also pleaded guilty to one charge of conspiracy to supply methamphetamine with an indicated quantity of two grams; and two charges of conspiracy to supply pseudoephedrine with an estimated yield of 540–805 grams. They were serious offences in themselves, justifying significant sentences on a standalone basis. So, too, was the charge of cultivating cannabis – it would have warranted a discrete starting point of at least three years imprisonment. A further adjustment of two years to the starting point for this other offending, to a total of six and a half years imprisonment, was modest.
[17] Allowances of six months for personal circumstances for a man who at 36 years of age had accumulated a long list of previous convictions and of five months for being on EM bail for nine months may be seen as generous; some judges would have made little if any reduction on these grounds. And we reject Mr Lawry’s submission that the Judge, in exercising his discretion, should have allowed more than a 10 per cent reduction for the guilty pleas. An end sentence of five years imprisonment for Mr Dodd’s composite drug offending was, if anything, lenient.
[18] Mr Lawry also challenges the robbery component of the sentence. He focuses on the sentence of two years and ten months imprisonment imposed on Mr Edwards. He says that if Mr Dodd had been sentenced in the District Court for robbery as a standalone charge, as was Mr Edwards, the sentence would need to be significantly less. On a parity basis, he says, the sentence imposed on Mr Dodd would be unlikely to have exceeded 12–18 months imprisonment. To impose a cumulative sentence of three years imprisonment for the robbery was therefore manifestly excessive.
[19] We reject this submission. As Ms Mildenhall emphasises, Mr Edwards was not a co-offender in the robbery committed by Mr Dodd – they were not similar offenders committing similar offences; Mr Edwards pleaded guilty to wounding Mr Norgrove with intent to injure. The maximum sentence on that charge was seven years imprisonment, compared to the 14 years for robbery.
[20] Plainly Mr Dodd exerted a considerable degree of control over events. The facts suggest that he directed what occurred. As Woodhouse J noted, the offence of robbery – that is, theft accompanied by violence or threats of violence – is serious. Based on this Court’s guideline decision in R v Mako,[3] the Judge had a proper basis for finding that Mr Dodd’s offending justified a starting point of three years imprisonment. An increase of three months for previous relevant convictions, including one of aggravated robbery, was also justified. A slight reduction for the late guilty plea, bringing the end sentence back to three years and one month, was unremarkable.
[21] In the result, the cumulative figure of eight years and one month imprisonment for Mr Dodd’s offending cannot be faulted. Nor can the Judge’s reduction on account of the totality principle. In our judgment, the result of seven years imprisonment was at the lower end of the available range.

Result

[22] Despite Mr Lawry’s careful submissions, we are not satisfied that the sentence imposed was excessive. Mr Dodd’s appeal is dismissed accordingly.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Dodd [2012] NZHC 2146.
[2] R v Fatu [2006] 2 NZLR 72 (CA).
[3] R v Mako [2000] 2 NZLR 170 (CA).