Dockerty v Police [2012] NZHC 2500 (26 September 2012)

Last Updated: 2 October 2012

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2012-442-17 [2012] NZHC 2500

BETWEEN DWAYNE JONATHAN DOCKERTY Appellant

AND POLICE Respondent

Hearing: 25 September 2012

Counsel: R W Ord for Appellant

M A O'Donoghue for Respondent

Judgment: 26 September 2012

_{JUDGMENT OF THE HON JUSTICE KÓS}

[1] Dwayne Dockerty was sentenced to 12 months’ imprisonment by a District Court Judge for three assaults. The first was on his partner. He placed her in a headlock, pushed her over, dragged her from her car, and threw her to the ground. The trial Judge rejected Mr Dockerty’s evidence that the headlock was in fact a cuddle. The Judge described that evidence as “ludicrous in the extreme”. Shortly afterwards Mr Dockerty was stopped by a police patrol car. He was arrested and placed in the car to be transported to the police station. He then spat at one of the police constable’s face and head on several occasions. In the back yard of the Nelson police station he bit a sergeant on the arm. The explanation offered was that he was grossly intoxicated, having drunk a lot of bourbon.

[2] Mr Dockerty has numerous convictions for violence: 13 previous convictions for assaulting the police, six previous convictions for resisting the police, four previous convictions for male assaults female, one previous conviction for assault

_{with intent to injure, one previous conviction of assaulting a person with a firearm or}

DOCKERTY v POLICE HC NEL CRI 2012-442-17 [26 September 2012]

airgun, one previous conviction for assaulting a person with a blunt instrument and three previous convictions for common assault.

District Court decision

[3] Mr Dockerty defended the charge of male assaults female, but pleaded guilty to two charges of assaulting police officers. As I have said, the trial Judge rejected the defence offered in the male assaults female charge, and convicted Mr Dockerty.

[4] On 30 July 2012 a different District Court Judge sentenced Mr Dockerty on all three charges to 12 months’ imprisonment (12 months on the male assaults female charge and concurrent terms of three months for each of the police assault charges). Taking the offending together, as it was all connected, the Judge applied a starting point of nine months, applied an uplift of six months for Mr Dockerty’s significant history of violence, and then gave a credit of three months in respect of the guilty pleas to the police assaults (an overall credit of 20 per cent).

Appeal

[5] Mr Dockerty now appeals on the basis that the sentence is manifestly excessive.

[6] For Mr Dockerty, Mr Rob Ord submits that the male against female offending did not warrant a starting point of nine months’ imprisonment. The District Court Judge had viewed the assaults on the police as more serious than the male assaults female. It was more “a scuffle”, in which evidence of harm was said to be completely lacking. Mr Ord submitted that the following concurrent sentence would have been fair: a starting point of three months for the “job lot”; an up-lift of three months (doubling the sentence) appropriate for all matters to reflect violent history; and no credit for guilty plea on the male assaults female charge, but a small reduction for the guilty pleas on the police assaults. The result being, still on Mr Ord’s mathematics if not mine, a six month term of imprisonment.

[7] Alternatively, Mr Ord submits that cumulative sentencing as follows would have been fair: a starting point of four months on the police assaults and two months on the male assaults female, increased to six months and four months respectively for Mr Dockerty’s criminal history and reduced to four and a half months on the police matters for guilty pleas. Mr Ord submits, “An eight to nine month cumulative sentence would be just, but the 12 months sentence is therefore manifestly excessive on these facts.”

Crown submission

[8] For the Crown Mr O’Donoghue submits that the sentence was within the available range. There is no relevant tariff case in male assaults female or assaults on the police. Sentencing outcomes in cases of less serious assaults are often significantly dependent on the offender’s previous history of violence. Assaults on police officers acting in the execution of their duty should always be regarded as serious. Both spitting and biting “are disgusting assaults which carried risks for the officers involved”. Mr O’Donoghue submits that the starting point of nine months on a totality basis accurately reflected the degree of criminality and culpability inherent in the three assaults.

Discussion

[9] The consequence of ss 115 and 119 of the Summary Proceedings Act 1957 is that this is a general appeal to be heard by way of rehearing. The onus lies on Mr Dockerty to satisfy the Court that the grounds of appeal have been made out and that this Court should differ from the original decision. The appellate court must come to its own view on the merits.[1] But it will not interfere with what is a legitimate exercise of judicial sentencing discretion or tinker with a sentence unless

_{it offends the conscience of the Court.}

[10] I am in this case satisfied that a sentence of one year’s imprisonment is appropriate in the circumstances of the three assaults, judged on a totality basis, and having regard to the criminal history of Mr Dockerty in relation to violence.

[11] First, I do not think the overall starting point of nine months can be criticised in its own terms in relation to this offending. These were serious and offensive assaults against the police, and there can be no justification nor excuse for them. They demand condemnation. The assault against Mr Dockerty’s partner may not have left her with lasting injuries, but it was nasty and it was violent. One consequence of it was that a protection order was made by the Court against Mr Dockerty in favour of his partner. Secondly, Mr Dockerty’s criminal history of violence is very bad, and justified a very substantial uplift in its own terms on the initial sentence taking the three assault charges together. Nothing but a severe sentence at this point is likely to alter what is becoming a regular drum beat of cruelty meted out to others. Thirdly, Mr Dockerty was fortunate to receive the overall credit of 20 per cent for his not guilty plea on two of the three charges. The sentencing Judge would have been entitled to take a much more conservative approach, given that there could be no defence to those charges, and given also that Mr Dockerty maintained a defence on the male assaults female charge which the trial Judge described as utterly ludicrous. That charge was the lead charge adopted by the sentencing Judge. In these circumstances a much lower discount than 20% would have been appropriate. Indeed it might have been no discount at all, as a trial was still required on the lead charge. That alone would have seen a final sentence of the order of that imposed by the Judge. Finally, I am not prepared in the circumstances of this case, with the history of the appellant and the nature of assaults committed in this case to tinker with a sentence of 12 months’ imprisonment, when the appellant himself accepts that one of nine months would have been appropriate (but based on a degree of credit which I do not consider appropriate in this case in any event).

[12] The sentence imposed in the District Court will stand. When within the 12 month term Mr Dockerty is released will be a matter for the proper authorities to determine in light of the progress he makes in prison.

Result

_{[13] Appeal dismissed.}

_{Stephen Kós J}

Solicitors:

Crown Solicitor, Nelson for Respondent

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[1] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).