BRANDON DAINTY AND THE KING - [2024] NZHC 2739

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 2739
Decision Date: 23 September 2024

CaseChat Overview and Summary

The case involves an appeal by Brandon Dainty against his sentence for common assault, specifically challenging the imposition of nine months of supervision as part of his sentence. The appeal was heard in the High Court of New Zealand, Auckland Registry. The primary issue before the court was whether the sentence of supervision was appropriate and justified under the circumstances. Ms Hamblin, representing Mr Dainty, argued that the imposition of supervision did not meet the statutory test for such a sentence as outlined in section 46 of the Sentencing Act 2002, which mandates that supervision be imposed only if it would reduce the likelihood of further offending through rehabilitation and reintegration. Ms Hamblin contended that the sentencing judge had not considered the statutory criteria and that there were no circumstances indicating that supervision would be beneficial for Mr Dainty. The Crown, on the other hand, argued that the sentence of supervision was appropriate to address the underlying causes of the violent offending and reduce the prospect of further offending. The court examined the nature of the offending, Mr Dainty’s lack of previous convictions, and the potential benefits of supervision. The court found that while the reference to Mr Dainty having previous convictions was erroneous, the level of violence involved, the premeditated nature of the offending, and Mr Dainty’s youth suggested that a sentence of supervision could address his offending behaviour. However, considering Mr Dainty's lack of previous convictions, the court decided that the period of supervision should be reduced. The appeal was allowed, and the sentence of nine months’ supervision was substituted with a sentence of six months’ supervision.

The final order of the court was that the appeal is allowed, and the sentence of nine months’ supervision is quashed and substituted with a sentence of six months’ supervision.

Orders