Dodds v R [2024] NZCA 362 (1 August 2024)

Last Updated: 5 August 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA246/2024 [2024] NZCA 362

	BETWEEN	DONNA MAY DODDS Appellant
	AND	THE KING Respondent

Hearing:	24 June 2024
Court:	Ellis, van Bohemen and Hinton JJ
Counsel:	G D Burns and M J Taylor-Cyphers for Appellant B D Tantrum and C R Purdon for Respondent
Judgment:	1 August 2024 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Hinton J)

• [1] Donna Dodds pleaded guilty to one charge of wilfully attempting to pervert the course of justice. On 19 April 2024, she was sentenced to 14 months’ imprisonment by Lang J in the Auckland High Court.^[1]
• [2] Ms Dodds appeals her sentence on the basis that the Judge erred by not commuting the sentence to one of home detention.
• [3] The Crown opposes the appeal. It submits that the sentence of imprisonment was appropriate and consistent with the purposes and principles of sentencing as set out in the Sentencing Act 2002.

Offending

• [4] On 3 June 2022, Benjamin McIntosh was shot, and he died as a result of his injuries. Ms Dodds’ son, Ethan, was a suspect.
• [5] On 6 June 2022, police executed a search warrant of Ms Dodds’ address. She provided police with a formal written statement in which she stated that she, with Ethan and another son, left Auckland on the evening of 2 June 2022, returning home on 4 June 2022. However, security footage subsequently obtained by police revealed that Ms Dodds and her sons left their address together on the morning of 3 June 2022 — after Mr McIntosh was shot and one minute after Ethan had returned to their address. Further, through counsel, Ms Dodds acknowledges that she knew of the likely charge against Ethan by the time of her statement on 6 June 2022.
• [6] On 9 June 2022, Ethan was arrested and charged with the murder of Mr McIntosh. Following a jury trial, he was found guilty and sentenced to life imprisonment with a minimum term of 12 years’ imprisonment.^[2]
• [7] On about 28 June 2022, Ms Dodds was charged with wilfully attempting to pervert the course of justice.

Sentencing

• [8] On 20 February 2024, Lang J provided Ms Dodds with a sentence indication of 18 months’ imprisonment.^[3] He said:

[17] The end sentence obviously means that a sentence short of imprisonment is available. Mr Burns asks me to indicate that a sentence of home detention may be appropriate. I am not prepared to do that given the fact that Ms Dodds has a previous conviction for very similar offending. Whether or not a sentence of home detention is appropriate will largely depend on the material available at sentencing. I therefore propose to make no comment at this stage regarding the appropriateness of such a sentence.

• [9] The indication was accepted by Ms Dodds.
• [10] At sentencing on 19 April 2024, the Judge allowed further discounts for personal circumstances and remorse, resulting in a final sentence of 14 months’ imprisonment.^[4]
• [11] The Judge then considered whether to convert the sentence of imprisonment to one of home detention. Counsel for Ms Dodds submitted that home detention was appropriate on the sentencing principle that the Court must impose the sentence that is the least restrictive outcome appropriate in the circumstances.^[5] Referring to previous similar offending by Ms Dodds, the Judge said:

[19] I would have been attracted to that submission if this was the first occasion on which you were before the Courts for offending of this type. However, one factor I cannot ignore in the present context is the fact that you have been convicted on a previous occasion of very similar offending to the present. Notably, this resulted in you receiving a sentence of 12 months intensive supervision on 2 June 2022, the day before the events giving rise to the present charge. This sentence contained a condition requiring you to observe a nightly curfew at your address. The Crown pointed out to the jury in your son’s trial that you breached that curfew when you were absent from Auckland until the early hours of 4 June 2022. The breach of curfew is not a matter of great significance for present purposes. However, the fact that you were prepared to become involved in offending of this type on the day after you were sentenced for similar offending is a matter of real concern. It demonstrates that the imposition of a sentence of intensive supervision with associated conditions was no deterrent to you committing a further similar offence immediately thereafter.^[6]

• [12] The Judge noted that the Court is “obviously hesitant to send a person to prison at 61 years of age when they have never served a custodial sentence in the past”.^[7] However, in light of the sentencing purposes of denunciation, deterrence, and accountability, the Judge held that a sentence of imprisonment was necessary. In particular, the Judge considered imprisonment was necessary to make clear to Ms Dodds that she cannot assist her children to evade detection or conviction if they commit criminal offences in the future.^[8]

Relevant legal principles

• [13] This Court has confirmed that the ordinary standard of appellate review on appeals against sentence applies to appeals of decisions not to commute a sentence of imprisonment to home detention.^[9] The Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should be imposed.^[10] For the Court to intervene the sentence must be shown to be wrong in principle or manifestly excessive.^[11] The focus is on the end result, rather than the process by which the sentence is reached.^[12]
• [14] The decision as to whether to commute a sentence of imprisonment to home detention is a discretionary exercise that engages all of the purposes and principles in ss 7 and 8 of the Sentencing Act. The margin of appreciation extended to sentencing judges is usually significant.^[13] For offences involving attempts to pervert the course of justice, the overriding sentencing purposes are deterrence and denunciation.^[14] Where such purposes are of particular significance, an appellate court will seldom interfere in a sentencing judge’s assessment of the appropriateness of home detention.^[15]

Discussion

• [15] The sole issue is whether imprisonment is the least restrictive outcome appropriate in the circumstances.
• [16] Mr Burns, for Ms Dodds, submits that the least restrictive appropriate outcome is home detention. He says the Judge placed too much emphasis on the purposes of deterrence, denunciation and retribution, and failed to take into account countervailing factors, in particular Ms Dodds’ rehabilitation and reintegration.
• [17] For the reasons discussed below, we disagree.
• [18] First, we do not accept the appellant’s submission that because Ethan now faces a long‑term sentence of imprisonment, there is no need for personal deterrence. While we acknowledge, as does Mr Purdon for the Crown, that this limits or certainly postpones Ms Dodds’ ability to commit future similar offending involving Ethan — in respect of whom it seems she is particularly susceptible to manipulation — Ethan may find other ways of influencing her from prison. Further, Ms Dodds has other children with criminal histories, one of whom travelled in the car with her and Ethan following the killing of Mr McIntosh. There is still opportunity for Ms Dodds to offend in the same manner in the future.
• [19] However, we place little weight on personal deterrence. More relevantly, the purpose of deterrence encapsulates both personal and general deterrence. That is, not only must the sentence deter Ms Dodds from reoffending, but it must also generally deter other persons who may be minded to offend in a similar way.^[16] Along with denunciation, general deterrence is a primary consideration when sentencing for attempts to pervert the course of justice.^[17]
• [20] We also do not accept the appellant’s argument that it is relevant that Ms Dodds did not succeed in helping Ethan evade detection, or that her actions did not have the effect of derailing a trial. That is a matter of happenstance. Had the departure of Ms Dodds and her sons from their address on 3 June 2022 not been captured on CCTV, the conduct of the prosecution may have been materially different.
• [21] As to the other sentencing principles, the appellant submits the Judge failed to take into account Ms Dodds’ prospects of rehabilitation and reintegration, and the limited need for protection of the community. Although not explicit, we consider the Judge did take into account prospects of rehabilitation. This emerges from his expressed reluctance to impose a custodial sentence on a 61‑year‑old who had no previous sentence of imprisonment. Further, as Mr Purdon succinctly identified, Ms Dodds demonstrates limited capacity for rehabilitation. Her offending occurred immediately following the commencement of a sentence of intensive supervision for similar offending. This demonstrates a lack of willingness to engage meaningfully with or learn from a rehabilitative sentence. Ms Dodds’ guilty plea was entered only one week before trial. Additionally, as observed by the Judge, Ms Dodds has continued to minimise her culpability.^[18] All of these factors point against her having any meaningful likelihood of rehabilitation.^[19] Her prospects in this regard are clearly not such as to countervail the principles of deterrence, denunciation and personal accountability.
• [22] The appellant’s final submission is that because Ms Dodds has previously only been sentenced to intensive supervision, the Judge erred by imposing a sentence of imprisonment rather than home detention, the latter being the next level on the sentencing hierarchy.^[20] But there is no principle that an offender must be subject to the entire array of non‑custodial sentencing options before being sentenced to imprisonment.^[21] The sentencing exercise requires a judge to determine the least restrictive sentence appropriate in light of the purposes and principles contained within the Sentencing Act. That assessment was properly undertaken by the Judge.
• [23] As noted by this Court in R v Edmonds, where denunciation and deterrence are primary sentencing goals, as they are here, a sentence of imprisonment may be required to respond adequately to the offending.^[22] We consider the Judge was right to determine, in light of those principles, that a short‑term sentence of imprisonment was necessary in this case.
• [24] It follows that we do not consider the sentence imposed by the Judge was manifestly excessive. It was the least restrictive outcome appropriate in the circumstances.

Result

• [25] The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent

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^[1] R v Dodds [2024] NZHC 871 [judgment under appeal].

^[2] R v Dodds [2024] NZHC 1419.

^[3] R v Dodds [2024] NZHC 241.

^[4] Judgment under appeal, above n 1, at [13]–[15] and [17].

^[5] Sentencing Act 2002, s 8(g).

^[6] We note the Judge referred to Ms Dodds breaching curfew. The position in that regard is unclear but the Judge placed little or no reliance on it, and nor do we.

^[7] Judgment under appeal, above n 1, at [20].

^[8] At [20].

^[9] Palmer v R [2016] NZCA 541 at [18].

^[10] Criminal Procedure Act 2011, s 250(2).

^[11] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

^[12] At [36].

^[13] Palmer v R, above n 9, at [19].

^[14] Thomas v R [2020] NZCA 257 at [7]. See also Miller v R [2014] NZCA 382 at [11].

^[15] R v Taiepa [2009] NZCA 120 at [20].

^[16] R v Radich [1954] NZLR 86 (CA) at 87.

^[17] Miller v R, above n 14,at [11].

^[18] Judgment under appeal, above n 1, at [15].

^[19] J (CA268/2016) v R [2016] NZCA 466 at [8]–[12].

^[20] Sentencing Act, s 10A.

^[21] Ngaata v Police HC Wellington CRI-2010-485-73, 27 August 2010 at [6].

^[22] R v Edmonds [2009] NZCA 152 at [21].