Police v Dunn [2017] NZDC 4605 (7 March 2017)

Last Updated: 19 June 2017

_{EDITORIAL NOTE: NO SUPRESSION APPLIED.}

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-004-8318 [2017] NZDC 4605
_{THREE STRIKES WARNING}

NEW ZEALAND POLICE

Prosecutor

v

MADDISON DUNN

_Defendant

Hearing:	7 March 2017
Appearances:	E Bergseng for the Prosecutor S Lance for the Defendant
Judgment:	7 March 2017

_{NOTES OF JUDGE D J SHARP ON SENTENCING}

[1] Mr Dunn, I am going to record leave to vacate the not guilty and enter a guilty plea. As I told you, I am not going to increase the uplift that I have to do in relation to the burglary matters in any event, so it simply closes the book on any offending that you had in the past now.

[2] I just have to give you a warning, and I am not sure whether or not a First Strike Warning has been given but I am going to do it now. It is just because your offence is one that requires a First Strike Warning. So it relates to your conviction for aggravated robbery. You are subject to the Three Strikes Law. I am giving you this warning of the consequence of another serious violence conviction. You will be given written notice outlining these consequences, which lists what the

_{serious violent offences are.}

NEW ZEALAND POLICE v MADDISON DUNN [2017] NZDC 4604 [7 March 2017]

[3] If you were convicted of any serious violent offence other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you would serve that sentence without parole or early release.

[4] If you are convicted of murder committed after this warning you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[5] So you get a written copy of that warning but after this conviction you need to bear in mind that those consequences follow for the serious offences. Now, having given that warning, and firstly I acknowledge that your whānau are here supporting you, one of the most important things as far as your rehabilitation is concerned will be the support you have got from the people who came along here and are in your life. People that are involved with offending, people involved with the burglary or other things, you never see them in Court. The people who matter to you are the people that have come along here. They are the people that you want to live up to their expectations, which is not to see you where you are now.

[6] In addition to that I know that underlying this is a problem that you have with drugs. That problem is something that you will hopefully get help for in prison and certainly I will tell, as part of the decision there will be a portion on rehabilitation, and the Parole Board who will look at your case will see that there are things contained in this decision that I say about what you do about your problems with drugs. You know yourself that if you had not had the problems with drugs it is highly unlikely that you would be where you are now, and you know that from the fact that there was a time when you were able to cope with it, and then you found yourself in a position where you could not cope with it and the addiction drove you to a lot of offending that is regarded seriously.

[7] Now, when I sentence you I have to take into account certain aspects of sentencing. I have to try to make it clear that offending of this kind is denounced, which means it is said to be totally wrong, and I do that. And you would not want to see somebody treated the way that this person was if you were thinking the right

way. Also, to deter you, which is to mean that you know that offending of this kind is something that you cannot be doing, or will end up with terrible consequences, and that other people when they look at what happened here get the same impression.

[8] I have to be consistent as far as I can with other cases if they are similar so that people are treated fairly, and I have to take into account prospects for your rehabilitation. At 22 that has to be a serious consideration because you have got a long way to go in your life and this is something that you can get over if you deal with it the right way.

[9] Also, I am bound to impose the least restrictive outcome in the circumstances. Those are all things I have to take into account when I look at your sentencing. I am bound when I look at your case to take a lead offence, and the lead offence in this case must be the aggravated robbery charge, that is the most significant. It means that I do not disregard the others, and I will talk about them, but I have to look at that sentence because it attracts the highest sentence.

[10] The circumstances were that on Saturday 16 July you were with the defendant Hooper. The complainant drove Hooper to Sykes Road in Manurewa. Ms Hooper said she wanted to meet her cousin. You walked up to the complainant who was still seated in the driver’s seat and presented a knife. You were told to move over into the front passenger’s seat. You got into the driver’s seat and you drove the vehicle north along Roscommon Road with the complainant in the front seat and Hooper in the rear seat. While in the vehicle Hooper demanded and has taken the complainant’s Apple iPhone, his debit card and his licence. The complainant was able to immobilise the vehicle which made you get out of the vehicle. After you got out of the vehicle even worse things happened. As you know the complainant was stabbed in the head and the neck with a knife five times as he drove and the public intervened to bring things to an end.

[11] He was stabbed with a knife by your co-defendant but this was after you left the scene and I do not take it into account in your sentencing. But the serious aspects of this are the fact that there had to be some discussions with you, and the

prosecution say the text messagings show that this was something that was organised. That is called premeditation which is where people plan to do things together.

[12] The second thing is that you did produce a knife. You did not use the knife but that presentation of the knife is separate from the way the matter is charged. It is charged because you were with another person, and acting in groups is always more serious because people together can do more than one person alone could, and that is the basis you are charged. But also there was the presence of a weapon, not only on your behalf but also on behalf of the other person. So the use of the weapon as a threat on your part and the organisation of things mean that this makes the offending more serious. There is nothing that I can see in the circumstances of the offence that makes it less serious so I have to take those factors into account.

[13] Your counsel would have told you about a case called R v Mako1 in which the Court of Appeal set out various levels for offending. Now, your offending in my view fits into the level of street robbery, albeit nearer to the top end of that level. It does not take on the same characteristics as could be found as a robbery of a taxi driver or other vulnerable person. This was something that was organised but it was not in the scale of robbery that would have required me to start with four years. That was suggested by the prosecution but I start at three years in terms of the lead offence.

[14] From there I have to look at the other offences which you are here for. There are a number of burglaries. I will not go through the facts of them but there are domestic burglaries, which are always regarded as serious matters. The other burglary matters require me to make an uplift. That uplift needs to reflect the fact that although you were suffering from an addiction at the time there has to be serious penalties that follow with regard to committed burglary offenders, and I am sure you know the reasons for that.

[15] So I need to uplift that starting point of three years. The uplift that is required brings things to four years and three months. From there I need to look at you and

1 R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA)

the factors that relate to yourself. You have a history that includes matters that are serious. It is important when looking at somebody’s history that it is not a situation in which you get sentenced again for the fact that you have been subjected to sentences for a significant number of matters involving violence, and that you have a history as a burglar, but there will be an uplift and that will be of six months. That brings the sentence to one of four years six months.

[16] From there I consider your age. You are a person who is 22 years of age. Although the credit that I could give you would be more except for the fact that you have got such a history of being involved in criminal offending, I accept that young people find it more difficult to look ahead into consequences and can be more susceptible to influences that cause trouble, and so I will give three months’ credit in relation to youth. I will give a further credit with regard to the prospects of rehabilitation in relation to drugs and this portion will be something that will be considered by the Parole Board when they look at your sentence. They get the sentencing notes. And so the more that you can achieve by way of courses in relation to your addiction difficulties the more benefit you will get when it comes to potential for early release.

[17] That puts me to a position of four years. You are entitled to 25 percent with regard to your guilty plea. That brings the sentence to one of three years’ imprisonment in relation to aggravated robbery; there will be sentences at the same time in respect of the burglary convictions of one year’s imprisonment. They are served at the same time.

[18] The driving while disqualified matter, there will be a sentence of 12 months’ disqualification imposed. In relation to the breach of post-detention conditions there will be a conviction and discharge. On the theft matter there will be a sentence of two months’ imprisonment at the same time.

[19] That sentence of three years is tailored to meet the circumstances as you are involved with. The important thing to take away from this sentencing is that it does not matter about other people’s involvement in things, it does not matter about other background factors. You have to make decisions that will keep you from ending up

with further convictions of the same kind. If you get them after that warning you run a risk of getting no parole, which means serving the entire sentence, so that is something you need to be conscious of.

D J Sharp

District Court Judge