R v Cassidy [2016] NZDC 15176 (9 August 2016)

Last Updated: 29 November 2016

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT WELLINGTON

CRI-2016-096-000773 [2016] NZDC 15176
_{THREE STRIKES WARNING}

THE QUEEN

v

_{DYLAN ELLAPHON CASSIDY}

Hearing:	9 August 2016
Appearances:	L Hann for the Crown K Bailey for the Defendant
Judgment:	9 August 2016

_{NOTES OF JUDGE I G MILL ON SENTENCING}

[1] Mr Cassidy, I am going to sentence you now. You know the sentence indication that I gave you and that is really the starting point for me and I have to decide whether I will make any further reductions from that. I can tell you that I will make some reductions on that.

[2] Whatever way we look at this and whatever way we describe your involvement in this serious assault, it was a very serious assault and although you were not the only person involved you were involved to a serious extent. Not perhaps as much as the other man, in fact not as much as the other man, but you cannot avoid a substantial prison sentence which I have already indicated to you.

[3] What I need to do is go through what I said at the sentence indication. Now, I

am repeating myself here but this has to be said because this is sentencing. I have to repeat those things so there is a record of why I reached the end sentence.

R v DYLAN ELLAPHON CASSIDY [2016] NZDC 15176 THREE STRIKES WARNING [9 August 2016]

[4] Taking into account the things I have seen today, the letters that I have got, some very good letters I have got, I will then adjust the sentence and announce the sentence at the end. I have to then give you what is known as a strike warning which I will read out to you when I have announced the sentence.

[5] So, the starting point is that you are here for sentence on a single charge of wounding with intent to cause grievous bodily harm. The facts of the case start a little bit before your actual involvement and they involve the kidnapping and the assault of a Mr Mark Smith and that began before you came on the scene.

[6] On 1 February this year and Mr Smith received a Facebook message from another defendant in this case asking him to come to her home. He arrived there about quarter past five in the morning, but before he went into the house or got out of the car he became uneasy about what was happening. Two males approached the driver’s door of his car. One of them was Nathan Cooper. He is also a defendant in this case and he was holding a tyre iron. He put this around Mr Smith’s neck and pulled him out of the vehicle. Once out, he robbed Mr Smith and then another vehicle pulled up and he dragged Mr Smith into that vehicle and then hit him around the head and upper body with the tyre iron that he was holding. I do emphasise that you were not present during any of this.

[7] However, then Mr Cooper and Mr Smith travelled by car, and I think there is another man also involved but we do not know the identity of that man, to your address. Once at the address you appeared in the lounge and you were recognised by the victim and you were holding a metal pole approximately 60 centimetres in length and this is where your offending took place. Both you and Mr Cooper started hitting the victim about the head and upper body with the weapons that you had. During the beating some of his teeth were knocked out, his lips were split, he had cuts and abrasions to his head, arms, upper body and his jawbone was cracked. He lost consciousness during the beating on several occasions.

[8] I will refer to this perhaps later but not all of these injuries are necessarily attributable to the assault at your house but some of them must have simply been attributable to that particular assault.

[9] Then Mr Cooper took over again, again you were not involved in this, and he took a sharp knife, cut off the victim’s dreadlocks, taped his mouth, cut his clothing off and then put him in the boot of the car and drove away.

[10] As I said at sentencing there is a Court of Appeal case of R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, which applies to this case and sets out guidelines. It sets out what are aggravating circumstances and what are the ranges of sentences that are imposed in these cases. Band 2 of that guideline case is appropriate where two or three of the aggravating features were there. Band 3, where serious offending had occurred where three or more aggravating features occurred and they were particularly grave. As I said at the sentence indication, this case does not fall into Band 3 but it certainly falls at the high end of Band 2, and Band 2 provides a starting point of five to 10 years’ imprisonment.

[11] The aggravating features here, and there are several of them, is that it was not spontaneous. It was not necessarily premeditated to any great degree but it was not a spontaneous thing that you became involved in this. You were prepared, when the man came into the house, to assault him.

[12] The severity of the violence and injury is important. It is a serious assault and I have already outlined the injuries that he received, some of which must have been received at your house. It was an attack to the head, weapons were used and you yourself had a metal pipe. There were two of you attacking him which made him more vulnerable and he became unconscious which made him more vulnerable still.

[13] So as I said, it falls at the top of Band 2 and in my view a starting point of eight years’ imprisonment is appropriate. You have a bad record for violence, going back as far as 1994, there are two aggravated robberies; 1999, aggravated robbery;

2005, assault with intent to injure; domestic assaults also, common assaults, assaults with a weapon, 2010. But more recently there have not been the same number of serious assaults and that is explained to a very large degree in the letters that I have received. It is a bad record but it is an improving record up until the events of this particular assault.

[14] So, a modest uplift I think is justified of six months, meaning eight years and six months’ imprisonment is the starting point. You are entitled to a 25 percent discount from that for your guilty plea and the question then remains, what else do I give you as a credit?

[15] I must say I was very moved by the letters that I read from your partner and her mother and I was very sad to see how much excellent progress you have made in various aspects of your life up until the time of these offences. You are in full time employment, you are contributing to the household both financially and emotionally and you are held in high regard by your partner and her family. That must have been quite difficult for you given your past and the way that you came to know your partner originally. All that was not for nothing but it was put at risk by what you have done.

[16] I see that you have done some good things in prison; you have not wasted your time. You have some health issues but it seems to me that these can be dealt with. You have gone to some programmes and completed those programmes and you have got a good report here also.

[17] You have written a letter of apology which is an apology to probably everyone concerned. So you do deserve some credit for your circumstances which I had not given you at the sentence indication and so I am going to reduce the starting point by six months for those things. Then I am going to reduce it further by 30 percent, which is 25 percent for your guilty plea and five percent for your expressions of remorse. Not quite as much as the maximum but getting close to that.

[18] So the result then is this: rather than a sentence which would have been six years or more, you are now convicted and sentenced to imprisonment for five years and six months.

[19] As far as the minimum term of imprisonment is concerned, I am not going to impose a minimum term of imprisonment, principally for two reasons: First is all the information that I have now before me and secondly, although you are guilty of serious offending you were not as culpable, that is blameworthy, as the other man and I do not think it would be right in my view to impose a minimum term of imprisonment on you. So by a narrow margin at least I am not going to do that.

[20] Finally, I am going to give you the first strike warning and you will get a copy of this in writing shortly. But given your conviction for the charge of wounding with intent to cause grievous bodily harm, you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given written notice of these consequences and a list of serious violence offences. If you are convicted of any serious violence offence except murder committed after you receive this warning you will receive a final warning. In addition, if the Judge imposes a sentence of imprisonment for that offence other than life imprisonment for manslaughter or preventive detention, you will serve that sentence without parole or early release.

[21] If you are convicted of a murder committed after you receive this warning you will be sentenced to imprisonment for life. You must serve a life sentence without parole unless it would be manifestly unjust to do so. If you receive a life sentence without parole you will not be released from prison. If serving the sentence without parole would be manifestly unjust the Judge must specify the minimum term of imprisonment you will serve. Now, I am not saying that you are going to commit any of those offenses, but in the past, not the recent past but in the past you have committed offences which would qualify. So if you get into serious trouble in the future you come to your second strike warning and that is that you serve your sentence without parole.

[22] Well Mr Cassidy, you have some very good support with your partner and her family and that is in spite of what you have done, so I suppose you have just got to work to getting your earliest possible release and getting back to where you were before this happened, which I must say is a credit to you. You cannot afford to put your liberty at risk like this again because you will be serving a very long sentence indeed.

I G Mill

District Court Judge