R v Dodd [2018] NZHC 1720 (12 July 2018)

Last Updated: 3 September 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2017-088-964 [2018] NZHC 1720

THE QUEEN

v

ADAM OWEN DODD WALTER REID NGAAU

Hearing:	12 July 2018 (via AVL)
Appearances:	MB Smith and SJ Barnaart for Crown S Gray for A Dodd AB Fairley for W Ngaau
Sentence:	12 July 2018

SENTENCING NOTES OF TOOGOOD J

R v DODD AND NGAAU [2018] NZHC 1720 [12 July 2018]

[1] Walter Reid Ngaau and Adam Owen Dodd: you appear for sentence having pleaded guilty to a charge of unlawful assembly.¹ Mr Dodd, you also appear for sentence having pleaded guilty to a charge of theft arising out of related circumstances.²

The background facts

[2] Mr Dodd, you are a patched member of the Whangarei Chapter of the Tribesmen Motorcycle Club, and Mr Ngaau, you are an ex-president of the Whangarei Black Power. Your offending arose out of a confrontation between the Far North Chapter and the Whangarei Chapter of the Tribesmen, culminating in the death of a Mr John Henry Harris.

[3] The circumstances were that in 2015 Mr Halen Lum transferred from the Whangarei Tribesmen Chapter to the Far North Tribesmen Chapter where he later became President. Upon his transfer, Mr Dodd, you ordered that Mr Lum should give up his Harley Davidson V-Rod as payment for the transfer. This form of debt collection is known as 'taxing'. It frequently involves illegal activity and is often accompanied by, or followed by, violence. That was the case here and this case is a graphic example of why taxing and those acts of unlawful activity which surround it are abhorred by ordinary citizens. I understand it is ingrained in the gang culture but the courts will not tolerate it.

[4] Conflict arose because the Whangarei Chapter perceived that Mr Lum owed a further debt when he continued to reside in the Whangarei area. On 15 October 2016, Mr Dodd, you went to a Whangarei address to take a red Holden Commodore. You spoke to Mr Lum for approximately 20 minutes and told him you were going to take the car. Mr Lum said later he feared there would be violence against him, his partner and his children, who were also present at the address, if he tried to prevent you from taking the vehicle. You then stole the car and drove it away. The vehicle was in fact owned by Mr Lum's partner, but it makes no difference that you might have been

¹ Crimes Act 1961, s 86(1)(a): maximum penalty of 12 months’ imprisonment.

² Crimes Act 1961, s 219: maximum penalty of 7 years’ imprisonment.

wrong in thinking it was Mr Lum’s car – you had no right to steal it, as your guilty plea acknowledges.

[5] Mr Lum then made contact with the Far North Tribesmen to assist in getting the vehicle back. Negotiations failed to resolve the issue.

[6] At approximately 3.30 am on 18 October 2016, several members of the Far North Tribesmen travelled to your home address in Whangarei and retrieved the Commodore. The vehicle was then taken back to Mr Lum's address. A few hours later, both you Mr Dodd, and you Mr Ngaau, met other co-defendants and you travelled in two vehicles to Mr Lum's address to confront him and his associates. Mr Ngaau, you got out of the vehicle with a co-defendant; Mr Dodd, you stayed inside your car. Violence was inevitable. After a verbal exchange between the two groups, a firearm was discharged. Mr Harris and a Mr Brack were injured but Mr Harris later died from his injuries. The responsibility for Mr Harris's death will be determined in the trial of a co-defendant. You are both to be sentenced on the basis that you were not involved in the killing, but Mr Harris’s death resulted from a confrontation in which you both played a part.

[7] I have regard to the victim impact statements which are restrained and, in many respects, which have positive elements. They provide a background to the sentencing that I have to undertake and I extend the Court's sympathy to Mr Harris's whanau.

Purposes and principles of sentencing

[8] In sentencing I must hold you both accountable for the harm done to the victims and the community³ through the unlawful assembly and the theft. I must promote in you a sense of responsibility for that harm,⁴ and deter and denounce others from this kind of offending.⁵ I am also required to impose the least restrictive outcome that is appropriate in the circumstances.⁶

³ Sentencing Act 2002, s 7(1)(a).

⁴ Sentencing Act 2002, s 7(1)(b).

⁵ Sentencing Act 2002, s ss 7(1)(e) and s7(1)(f).

⁶ Sentencing Act 2002, s 8(g).

Mr Ngaau - sentencing approach

[9] On the charge of unlawful assembly, Mr Ngaau, you face a maximum sentence of 12 months' imprisonment. The Crown submits that, given the circumstances and your involvement in them, the appropriate starting point is six months' imprisonment, and counsel then suggest an uplift of around one month to recognise that your previous convictions call for added deterrence. The Crown acknowledges that a discount that is "more than nominal" may be available because you have pleaded guilty not long after the more serious charges were dropped. Mr Fairley does not disagree with the Crown's approach and I intend to adopt it.

Adam Dodd - sentencing approach

[10] In your case, Mr Dodd, the Crown submits that the starting point on the unlawful assembly charge, which it regards as the lead offence, should reflect your greater involvement in the circumstances which led to the unlawful assembly. Eight months' imprisonment is suggested as appropriate. It is then submitted that the theft of the motor vehicle − which, of course, was an integral part of the circumstances leading to the confrontation and Mr Harris's death − should be dealt with by way of a further uplift. In her written submissions Ms Barnaart suggested that, given your extensive history of violent and dishonesty offending, an uplift of around three months' imprisonment should be imposed to take account of the additional need for deterrence. The Crown acknowledges that you also should receive a more than nominal discount for pleading guilty after the Crown's resolution of the charges against you.

[11] Ms Gray submits on your behalf, Mr Dodd, that the unlawful assembly should be regarded as an aggravating factor on the lead offence of theft. She submits that a starting point in the vicinity of 15 months' imprisonment should be adopted for the theft charge with an uplift of six months for the charge of unlawful assembly. Ms Gray submits that only two months' uplift should be adopted in the light of your previous convictions. She also asks for consideration to be given to your family circumstances because you have had very little contact with your children while you have been remanded in custody; particularly your youngest child who is aged only ten months and because upon your release, as I understand it, you expect to have childcare responsibilities.
[12] Ms Gray submits you should be given a full discount of 25 per cent for your guilty pleas and that the total effective end sentence should be one of no more than 16 months' imprisonment. Counsel points out that you have already spent nearly 19 months in custody, as a result of your having faced a charge of murder which has now been withdrawn.

[13] Mr Dodd, I agree that the theft charge should be taken as the lead offence – it carries a substantially higher maximum sentence than the unlawful assembly and it was deliberate dishonesty. I agree with Ms Gray that, bearing in mind the maximum of seven years' imprisonment, a starting point of 15 months' imprisonment is appropriate. On the unlawful assembly charge, if considering that alone, I would have taken a starting point of nine months' imprisonment to reflect your significant culpability or blameworthiness in the offending. You were the instigator of it. It was pre-meditated and it was serious of its kind. While I accept that you were not responsible for what happened to Mr Harris, it is relevant that the confrontation which you orchestrated involved inevitable violence and that it resulted in a man’s unlawful death.

[14] Bearing in mind the fact that the theft was an integral part of the overall offending, I have regard to the totality principle and would uplift the 15 months' sentence for theft by seven months to produce a total effective sentence of 22 months' imprisonment.

[15] I add a further uplift of two months to recognise the extra need for deterrence in your case because of your criminal history. Ms Gray has produced a number of certificates indicating that, while you have been in custody awaiting trial, you have successfully attended a number of courses designed to improve your life skills and to give you a better prospect of rehabilitation. I commend you for that and I take into account your expressions of remorse and your determination to lead a different and better life in the future. To recognise those efforts and the steps you have already taken towards rehabilitation, I allow a discount of two months' imprisonment, bringing the sentence back to one of 22 months' imprisonment. I do not think your family circumstances warrant any discount. You were plainly not thinking about your
children when you committed these offences, and the resulting time you spent in prison is entirely your responsibility.

Discount for guilty pleas

[16] While you both pleaded guilty soon after the Crown resolved to drop the more serious charges against you, the Crown's case on the charges to which you have pleaded guilty was a strong one. I consider the discount which is appropriate is one of around 15 per cent.

[17] Would you both please stand.

Sentence − Dodd

[18] Mr Dodd − from the sentence of 22 months’ imprisonment, a discount of 15 per cent for your guilty plea produces a total effective end sentence of just over 20 months' imprisonment.

[19] I therefore sentence you to 20 months' imprisonment for theft, and nine months' imprisonment for unlawful assembly. Those terms are to be served concurrently; that is, at the same time.

Sentence – Ngaau

[20] Mr Ngaau, you participated in the unlawful assembly but you were not an instigator and I agree that a starting point of six months' imprisonment is appropriate on the charge to which you have pleaded guilty. An uplift of one month's imprisonment is appropriate to reflect a need for deterrence given your prior history, and I also apply an approximately 15 per cent discount in your case.

[21] On the charge of unlawful assembly, therefore, I sentence you to six months' imprisonment.
[22] In respect of both of you, standard release conditions shall apply. You may both stand down.

.............................................

Toogood J