I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CRI [2017] NZHC 2279 THE QUEEN PATRICK DIXON

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CRI [2017] NZHC 2279 THE QUEEN v PATRICK DIXON Hearing: 20 September 2017 Counsel: L P Radich for the Crown P Leʼauʼanae for the Defendant Sentence: 20 September 2017 SENTENCE OF EDWARDS J Counsel: Solicitors: P Le au anae, Auckland Kayes Fletcher Walker Limited, Auckland Mason Treloar Harvey, Auckland R v DIXON [2017] NZHC 2279 [20 September 2017]

2 Introduction [1] Mr Dixon, you appear for sentence having been found guilty of a number of offences following a jury trial in Auckland. The offences for which I am sentencing you today are: (a) Two offences of using a firearm against a law enforcement officer. That offence carries a maximum penalty of 14 years imprisonment. (b) One offence of threatening to kill. That offence carries a maximum penalty of seven years imprisonment. (c) One offence of male assaults female. That offence carries a maximum penalty of two years imprisonment. [2] You were acquitted on a further charge of assault with a weapon. Offending [3] Your offending took place in the early hours of 3 February You, your ex partner and her cousin, were driving back from Waihi to Auckland. You were in the back seat and your ex partner and her cousin were in the front seat. Your ex partner was driving. [4] During the course of that car journey you became increasingly agitated, and you began arguing with your ex partner. You blamed her for calling the police on you. You had a warrant out for your arrest at the time, and you had disappeared when police came looking for you the day before. [5] Your agitation escalated. You punched your former partner two or three times in the face with a closed fist whilst she was driving. [6] At some point in time, you threatened to kill your ex partner by pointing the gun at her and saying words such as, I ll blow you away or, I ll use this gun. It

3 is not certain whether the gun was loaded at the time. But it is clear that you had bullets with you, and the means and the intention to follow through on your threat. [7] You arrived back in Auckland, and were in the vicinity of Manurewa, at around 3.30 am in the morning. Senior Sergeant Wood was on duty that night. He saw the vehicle you were in and, thinking it was the type of car which is often stolen, decided to make some inquiries. Those inquiries showed that the car was not stolen, but it was unregistered. He decided to pull the car over. He followed the car, flicking his headlights, then activating his red and blue lights, and finally using his siren. [8] The car slowed, and eventually pulled over to the side of the road. Just as the officer was getting out of his car, you opened fire. You fired three shots. The bullets bounced off the front of the car. The gun you used was not recovered, but evidence suggests that it was a shotgun. [9] That was not the end of it however. The car you were in took off, and, in an act of remarkable bravery, the officer decided to follow. You demanded that your former partner pull over, just past a bend in the road. You were lying in wait for the officer. As he rounded the corner, you opened fire again. You were standing in the well of the back passenger door, two hands on the gun. The evidence suggests that three to four shots were fired this time. [10] You directed your ex partner to drive to a nearby house, where a woman you knew lived. The two women were able to get away from that house. You were apprehended in Cambridge a few days later. Your defence at trial was that it was not you in the back of the car that night, but another man who has since died. Victim impact [11] The impact of your offending on the officer concerned was apparent from the victim impact statement that he read out this morning, and I thank him for doing that this morning. He described realising just how close he had come to being killed that night just for doing his job and keeping the community safe. The incident has changed both his, and his family s, perspective on his work and the risks he takes

4 working on the frontline. After 21 years in the job, his wife now worries about him going to work every day. [12] It was also evident that your offending had a real impact on both your ex partner and her cousin. They were terrified at the time, and were still evidently shaken when they recalled the events in Court. The stress of your offending has caused a once close relationship between the two women to break down. Personal circumstances [13] In terms of your personal circumstances, Mr Dixon you are 31 years of age. You have a young child whom you do not have any contact with, and two teenage children with different partners. [14] You have a lengthy criminal history. You have received sentences for 74 criminal convictions in the District Court, and another four from the Youth Court. You have other family violence convictions for which you have yet to be sentenced. [15] Those convictions which are particularly relevant for sentencing purposes include the domestic violence convictions from 2015 and 2016; assault with intent to injure and common assault, both from 2012; and two convictions for male assaults female from You also have two convictions for possession of an offensive weapon from [16] You have some other violence related convictions which relate to offending from 2001 to You also have convictions for escaping police custody, and resisting police from You received a three months sentence of imprisonment for one of those offences, but the remaining sentences were non-custodial. Because of the age of those convictions, and the sentences you received for them, I do not consider them to be relevant for sentencing purposes and I put them to one side. The remainder of your convictions are also irrelevant. They relate to dishonesty type offending such as burglary, theft, and breach of release conditions, and driving whilst disqualified.

5 [17] I have read the pre-sentence report. Your risk of reoffending and causing harm to others is assessed as high by the report writer. Of real concern, Mr Dixon, is the fact that you continue to maintain that you were stitched up and framed, and that the offending was committed by another man who is now dead. That position cannot be sustained in the face of the overwhelming evidence at trial which clearly pointed to you as being the offender in this case. Sentencing framework [18] I now turn to the sentencing framework I will adopt in sentencing you today. [19] The sentencing approach is well established. I first must consider your offending with regard to any aggravating or mitigating factors. That leads to a starting point. I then make adjustments, as necessary, for aggravating and mitigating features which are personal to you. [20] In fixing a sentence, I take into account the principles and purposes embodied in ss 7 and 8 of the Sentencing Act Those which are particularly relevant in your case are: denouncing and deterring your conduct; holding you accountable for the harm caused; and promoting a sense of responsibility for that harm. Protection of the community from you is also relevant. That may lead me to consider your rehabilitation and reintegration into the community. Finally, I note that I must fix a sentence which is the least restrictive in all the circumstances. [21] The Crown seeks a 50 per cent minimum period of imprisonment to be imposed. I address that issue after I have determined the term of your sentence. Starting point [22] The first step is to set a starting point. I take the unlawful discharge of a firearm offence as the lead offence. I then apply uplifts for the other offences to set a starting point for the totality of your offending in this case.

6 Unlawful discharge of a firearm [23] In setting a starting point I must have regard to the aggravating and mitigating features of your offending. The Crown submits, and your counsel does not dispute, that there are three aggravating features of your offending. I agree that each of these features is present in your case. [24] First, the level of intentional violence aimed directly at the police officer is particularly serious. You did not just wave the gun around in the air, or shoot it in the general vicinity of a police officer. You deliberately and intentionally took aim at the police car and fired shots. The car was marked, and it had its red and blue lights on. You must have known there was a police officer inside when you took aim. [25] In the first shooting incident, you were estimated to be as close as four metres away from the police car. You fired at least three shots. All of those shots hit the car. The second incident also involved you deliberately taking aim and firing. Although you were further away on this occasion, you fired at least three shots at the police officer. The risk to life was extremely high and it is just pure luck, and quite frankly a miracle, that the officer was not injured, or worse, killed. [26] The second aggravating feature relates to the degree of pre-meditation in your offending. It is clear that you always had the intention of using the gun. You had it with you in the car, and, at some point in time you loaded it. Earlier in the car journey, you had put pieces of paper in your ears to protect yourself from the sound of the gun firing. [27] I accept that you did not intend to shoot a police officer when you set out that night. In that respect, the first incident could be seen as opportunistic rather than premeditated. But that cannot be said of the second shooting incident. The officer described the second incident as an ambush. You were lying in wait for the police officer, the car you were in concealed around a bend in the road. When the officer

7 rounded the corner, you opened fire. You were standing outside the rear passenger door, pointing the gun directly at the police car. [28] The third aggravating feature of your offending is the vulnerability of the officer concerned. The officer was in a car alone. He was simply on duty that night doing his job. He could not have expected what was about to unfold, or that his life was in danger. He was unarmed, and taken completely by surprise. [29] Another aggravating feature is that your offending was committed whilst on bail, and whilst there was the warrant out for your arrest. That elevates the gravity of your offending also. [30] Those aggravating features are relevant when I come to compare your offending to other offending of this kind, and the starting points adopted in those cases. [31] I have read a number of cases involving the use of firearms against a law enforcement officer. Your counsel suggests that those cases fall into two categories: cases where the offender uses a firearm in a reactionary way, and those where the offender actively confronts police whilst armed. I do not consider the cases can be categorised quite so neatly. Although, I do accept that the degree of confrontation involved in the offending is relevant in assessing culpability. [32] In any respect, I do not consider your offending can be fairly characterised as reactionary. You initiated the confrontation by opening fire on an unarmed police officer. As I have already noted, there was more than an element of premeditation involved in your offending. [33] The Crown referred me to R v McDonald. 1 I consider that case to be significantly more serious than your case and I put it to one side. However, the case of R v Samuels has some similarities. 2 In that case, shots were fired at police on four 1 2 R v McDonald HC Auckland CIV , 22 September R v Samuels [2009] NZCA 153.

8 separate occasions during a car pursuit. Mr Samuels walked towards the police raising his rifle directly at the constable with his hand on the trigger. He did not fire the gun, but the officers opened fire, and the appellant, Mr Samuels, was seriously wounded. A starting point of 12 years imprisonment was upheld on appeal. [34] I have also considered R v Shaw. 3 In that case, Mr Shaw and his partner were trying to avoid detection by authorities and had gone bush. The police subsequently located them and a high speed police chase commenced. Mr Shaw fired shots at the pursuing police car from the front passenger side of the car. When the pursuit continued on foot, Mr Shaw periodically put down the child he was carrying, and aimed the rifle at the police officers shadowing him. A starting point of 10 years, uplifted by six months because the offending was on bail, was adopted in that case. [35] I consider the offending in R v Samuels to be marginally more serious than your offending. As I read that case, it involved four separate shooting incidents, each of which was the subject of four separate charges. There was also a greater degree of confrontation with police. I therefore consider a starting point of less than 12 years is warranted. [36] Some aspects of the offending in R v Shaw are more serious than yours. But, the premeditated nature of your offending, and the vulnerability of the officer concerned, makes your offending more serious in other respects. Overall, I consider your culpability to be generally on a par with that in R v Shaw. [37] The Crown seeks a starting point of between 11 and 12 years imprisonment. Your counsel suggests somewhere between eight and nine years imprisonment. In light of the cases reviewed above, I adopt a starting point of 10 years, six months. Uplift for other offending [38] I now turn to consider the uplift for the other offending. The Crown seeks an uplift of between one to two years. Your counsel proposes an uplift of one year. 3 R v Shaw HC Timaru CRI , 16 December 2009.

9 [39] The threatening to kill offence is the next most serious. It carries a maximum penalty of seven years imprisonment. When you made your threat, you were sitting in the back of a car with the gun, and bullets. You were highly agitated and arguing with your ex partner who was driving the car at the time. You had the means of following through on your threat, and I can only imagine the terror that both women must have felt when you made it. A starting point in the region of 12 months imprisonment could have been justified for this offence alone if it was being sentenced separately. [40] The male assaults female charge involved several punches to the face of your former partner with a closed fist as she was driving the car. She was in a particularly vulnerable position with no means of escaping the blows. However, as the Crown accepts, no serious physical injury resulted from those punches. I consider a starting point of six months for that offending alone would have been justified if sentenced as a stand-alone offence. [41] But rather than just adding on the starting points for both offences, I need to consider the overall starting point which reflects the totality of your offending. And on that basis, I apply an uplift of one year for the other two offences. [42] That leads to a starting point of 11 years, six months imprisonment. Personal aggravating and mitigating factors [43] I now turn to consider personal aggravating and mitigating factors. [44] As I have already mentioned, Mr Dixon, you have a lengthy criminal history with convictions stretching back to Not all of those are relevant for sentencing purposes, but you do have a number of violence related convictions for which you have received sentences of imprisonment. Those sentences do not appear to have deterred you from re-offending at all. In fact, the pattern of your convictions shows a total disregard and contempt for the sentences imposed on you. [45] The Crown seeks an uplift in the vicinity of one to two years imprisonment to account for your previous history. Your counsel suggests one year would be

10 appropriate. Given the age and irrelevance of many of those convictions, I apply an uplift of one year for your prior convictions. [46] There are no personal mitigating factors for which you would otherwise be entitled to a discount. You have shown no remorse, no regret, and taken no responsibility for your offending. Your counsel stresses that you are still a young man and that the sentence I impose should not be too crushing. [47] I agree that at 31 years of age, it is not too late to change your life around if not for your own sake, at least for the sake of your children. But you cannot start on that journey until you accept your own wrongdoing and take responsibility for it. As matters currently stand, I see no reason at all to soften the sentence I would otherwise impose. [48] The end sentence I intend to impose is one of 12 years, six months imprisonment. Minimum period of imprisonment [49] I turn next to consider whether or not to impose a minimum period of imprisonment. [50] The law allows me to impose a minimum period of imprisonment if I am satisfied that the standard parole period is insufficient to hold you accountable, denounce and deter your conduct, and to protect the community from you. I consider a minimum period of imprisonment is necessary in your case. [51] It is necessary to hold you accountable for what you have done. Your offending involves serious harm, to the individual victims in this case and to the community as a whole. We rely on police officers to do their duty and keep us safe. They play an important role in maintaining law and order. When you shot at the police officer in this case, you not only threatened him, but the very safety of our society.

11 [52] Your offending also requires strong denouncement and deterrence. As the Court of Appeal has emphasised, the maximum penalty of 14 years imprisonment shows a clear legislative intention that those using firearms against law enforcement officers should be dealt with severely. Deterrence is the main consideration for sentencing of this offence. A strong message needs to be sent to you and to others that using a firearm against a police officer is a very serious offence, and it will be treated as such at sentencing. [53] Finally, I consider a minimum period of imprisonment is necessary to protect the community from you. Your lengthy criminal history, and lack of any insight into your offending gives rise to a very high risk of re-offending which is likely to cause harm to others. Previous sentences of imprisonment have done nothing to deter you, and you have not demonstrated any commitment to rehabilitation or reintegration which might otherwise mitigate that risk. [54] In all the circumstances, I consider a six year minimum period of imprisonment is appropriate. Sentence [55] Mr Dixon, please stand. [56] I sentence you as follows: (a) For the two offences of using a firearm against a law enforcement officer, I sentence you to 12 years, six months imprisonment. I impose a minimum term of imprisonment of six years on that sentence. (b) For the offence of threatening to kill, I sentence you to 12 months imprisonment; and (c) For the offence of male assaults female, I sentence you to six months imprisonment.

12 [57] These sentences are to be served concurrently. That means you will serve an effective sentence of 12 years, six months imprisonment, with a minimum term of imprisonment of six years. [58] Mr Dixon, you may stand down. Edwards J