BRANDON DAINTY AND THE KING
[2024] NZHC 2739
•23 September 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-389
[2024] NZHC 2739
BETWEEN BRANDON DAINTY
Appellant
AND
THE KING
Respondent
Hearing: 17 September 2024 Appearances:
K Hamblin for Appellant
N Herewini for Respondent
Judgment:
23 September 2024
Reissued:
30 September 2024
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 23/092024 at 10am.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
K Hamblin, Auckland
Meredith Connell, Auckland
DAINTY v R [2024] NZHC 2739 [23 September 2024]
Introduction
[1] On 18 July 2024, Mr Dainty was sentenced on a charge of common assault to nine months’ supervision and a fine of $750 of which a portion was applied as emotional harm reparation.1 He appeals the sentence of supervision.
[2] Mr Dainty was 19 years old at the time of the offending and had no previous convictions. It is said that supervision was unnecessary and unjustifiable and as a result the sentence was manifestly excessive.
[3] The Crown submits that the sentence of supervision was appropriate and should not be disturbed.
Background
[4] The catalyst for the offending was an incident on New Years’ Eve, 31 December 2022. One of Mr Dainty’s co-defendants, Mr Andrews, attended a New Years’ Eve party. At about 11.30 pm, the victim requested that people leave the party because the house was too crowded. There was what is described as a tussle.
[5] At approximately 2 pm the next day, 1 January 2023, Mr Dainty and a different co-defendant went to the party address. Mr Dainty went into the address via a sliding door and said he was there because his friend has been “rushed”. Mr Dainty threatened the complainants saying they had 10 to 20 minutes to leave “because this is my house” and he was going “pop” them. Mr Dainty and the co‑defendant then left.
[6] An occupant of the house phoned the police reporting that she and others had just been threatened and she was scared. As she was on the phone to the police Mr Dainty, Mr Andrews, and the other co-defendant returned. They entered the property uninvited. Mr Andrews accused the victim of “rushing” him the night before and punched him in the jaw. The victim pushed Mr Andrews away. Mr Andrews then threw multiple punches and kicks to the victim’s head and body. Mr Dainty joined in the assault by punching the victim. A chair was thrown during the assault which hit the victim’s left wrist. It is not clear who threw the chair. Mr Dainty and Mr Andrews
1 R v Dainty [2024] NZDC 17477.
were the people actually involved in the assault. The third co-defendant stood inside the property while his associates assaulted the victim.
The sentencing decision
[7] The sentencing Judge began by noting that the defendants were all young men before setting out the charges faced and the procedural history. The Judge then set out the facts of the offending noting that all of the defendants, including Mr Dainty, were youths. Mr Andrews was 18 years old with no previous convictions, Mr Dainty was 19 years old, and the third co-defendant was 20 years old.
[8] The Judge said that Mr Andrews took the lead in the offending. The Judge noted that Mr Dainty offered to pay a fine but was not in a position to undertake community work because he was in employment. The Judge erroneously noted that Mr Dainty had previous convictions.
[9] Mr Dainty was fined $750 and ordered to pay half to the complainant as emotional harm reparation. The Judge then said, “he is also placed on supervision for nine months”.
The approach on sentence appeals
[10] An appellant may appeal against sentence as of right under s 244 the Criminal Procedure Act 2011.
[11] An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed.2 In any other case the appellate court must dismiss the appeal.3 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing Judge.4 An appellate
2 Criminal Procedure Act 2011, s 250(2).
3 Section 250(3).
4 Palmer v R [2016] NZCA 541 at [17]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR
482 at [30].
decision is focused on the end result rather than the process by which the sentence was reached.5
[12] When allowing an appeal on the basis that there was an error in the sentence imposed the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of the sentence or any condition of sentence; or remit the sentence to the court that imposed it.
Discussion
[13] Ms Hamblin, for Mr Dainty, submits that the imposition of supervision did not meet the test in s 46 of the Sentencing Act 2002 which provides:
A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[14] Ms Hamblin says there is no indication in the sentencing notes that the Judge turned his mind to s 46 and in particular, whether a sentence of supervision would reduce the likelihood of further offending. She says that there was nothing about the circumstance of the offending or about Mr Dainty himself, such as problematic use of alcohol or persistent use of violence, which might have suggested that supervision would reduce the likelihood of further offending. There were no issues identified that would benefit from a sentence of supervision.
[15] Ms Hamblin refers to Sherley v New Zealand Police where the appellant pleaded guilty to driving with excess blood alcohol and careless driving and was sentenced to nine months’ supervision including a special condition to undertake alcohol counselling and treatment as directed.6 In that case, Asher J noted there was nothing on the file to indicate that the appellant had an alcohol problem and there was no reference in the sentencing decision to s 46 which imposes what was described as a “preliminary requirement” before supervision can be ordered. Asher J said that a sentence of supervision is a significant sentence, ranking as more serious than fines
5 Kumar v R [2015] NZCA 460 at [81].
6 Sherley v New Zealand Police [2012] NZHC 1499.
and reparation, and that it can involve a very considerable imposition on personal liberty. The offender is required to report, to live and to undertake employment as directed, and not to move without permission. A sentence of supervision cannot be imposed if the s 46 test is not met. Asher J concluded that there was no good reason and no basis for an imposition of a sentence of supervision.
[16] Ms Hamblin submits that the same conclusion should be reached in the present case. There was no good reason and no basis for the imposition of a sentence of supervision on the appellant.
[17] The Crown submits that the summary of facts revealed issues of violence. Mr Dainty during his first visit to the address threatened to “pop” the victims and later returned to the address and joined in an assault. The Crown submits that the sentence of supervision was appropriate to address the underlying causes of the violent offending and reduce the prospect of further offending. A stopping violence course would be available as part of a sentence of supervision.
[18] The Crown refers to the case of Chang v New Zealand Police which involved domestic violence.7 Mr Chang pleaded guilty to one charge of common assault and had no previous convictions. In that case, Downs J noted that Mr Chang had said he wished to undertake relationship counselling but could not afford it, and that he wanted to do restorative justice and was prepared to complete voluntary community work. Downs J considered that supervision was an obvious choice.
[19] In the present case, it is acknowledged that the reference to Mr Dainty having previous convictions was not correct. There is also a scarcity of any reasons in the decision for the sentence of supervision. I cannot be sure that the Judge’s view of Mr Dainty as a person with previous convictions was irrelevant to his assessment of whether supervision was required. It is possible that the erroneous view that Mr Dainty had previous convictions did affect the decision as to whether supervision was required. On the other hand, the offending itself had some concerning elements including the initial threat and the fact Mr Dainty returned to the house. There is
7 Chang v New Zealand Police [2019] NZHC 2051.
clearly a level of premeditation. Mr Dainty and his co-defendants deliberately went back to the house intending violence.
[20] Supervision carries some practical difficulties for Mr Dainty because he is employed as a welder and his hours are variable. The requirement to report is said to be causing him difficulty. Mr Dainty does not have a device because of unrelated non‑violent charges for which he is currently on bail. As a result of this, Mr Dainty must report in person which requires him to take time off work.
[21] When a sentence of supervision is imposed it would be preferable for the Court to set out, at least briefly, what the sentence of supervision is intended to address. Where such a sentence is imposed by an experienced District Court Judge however, I would not easily assume that the Judge had not considered the potential for a sentence of supervision to reduce the risk of reoffending through rehabilitative measures available as a result of such a sentence. I do not assume that the Judge failed to consider the benefits of supervision simply because there is no overt reference to s 46 in the decision.
[22] The level of violence involved in this matter, the willingness to be involved in a group attack, the premeditated nature of the offending, and Mr Dainty’s youth all suggest that a sentence of supervision has the potential to address offending behaviour and give Mr Dainty a chance to mature without becoming further involved in the criminal justice system. I note that the fact that Mr Dainty is working is to his credit and is generally considered protective.
[23] The supervision component of the sentence reflects the willingness of the Judge to put Mr Dainty’s rehabilitation ahead of punitive aspects of sentencing. I consider that a fine alone would be manifestly inadequate for the level of violence that occurred. A sentence of supervision is intended to be rehabilitative rather than punitive, but it does carry the reality that a defendant is subject to oversight for a period of time. Mr Dainty cannot undertake any other punitive sentence due to his work. In the circumstances, I find that the sentence of supervision was an appropriate response combining both interests of rehabilitation and reducing the risk of further violent offending. It seems obvious to me that a 19-year-old man engaged in this type of
incident would benefit from such oversight and rehabilitation; and that supervision has the potential to address offending behaviour and reduce the risk of reoffending.
[24] I do find, however, that the reference to Mr Dainty having previous convictions was an error. The Judge may have been misinformed or he may have been referring to the fact that Mr Dainty has active charges. The question then becomes whether the sentence imposed was manifestly excessive in light of the lack of previous convictions.
[25] Considering s 46 of the Sentencing Act afresh, I find that a sentence of supervision is appropriate for the reasons set out, but the lack of previous convictions means that the period of supervision should be reduced.
Result
[26]The appeal is allowed.
[27] The sentence of nine months’ supervision is quashed and substituted with a sentence of six months’ supervision.
Wilkinson-Smith J
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