D v Police HC Palmerston North CRI 2008-454-14

[2008] NZHC 804

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2008-454-000014

BETWEEN  D

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 June 2008

Counsel:         No appearance for Appellant

E J McCaughan for Respondent

Judgment:      3 June 2008

ORAL JUDGMENT OF WILD J

[1]      Mr Dellabarca appeals against sentence.  He has not appeared in support of his appeal, and is not represented.  He was not represented when he appeared before Judge Ross in the District Court at Levin on 5 March either.  I record that Mr Becker appeared this afternoon as a courtesy to the Court, having been informed by the Court that the appellant had put Mr Becker’s name on his Notice of Appeal as solicitor acting for the appellant.  Mr Becker has no instructions from the appellant. I acknowledged the courtesy of his appearance and gave him leave to withdraw.

[2]      The grounds of appeal as Mr Dellabarca sets them out in his notice are:

I have had no previous convictions.   I was not offered the services of the duty solicitor at the time of entering my plea.   The police officer dealing with my case informed me I would get diversion.  The alleged victim had inflicted a far more serious crime upon myself and that was not taken into consideration  and  I  have  been  convicted  for  the  actions  I  took  in  self defence.

D V NEW ZEALAND POLICE HC PMN CRI 2008-454-000014  3 June 2008

[3]      As this appeal is one against sentence only it is fundamentally misconceived. In the District Court at Levin on 5 March, Judge Ross convicted the appellant and ordered him to come up for sentence if called upon within six months.  That means exactly what it says.  The Judge did not sentence the appellant.  He indicated that he would do  so  if  the  appellant  was  called  upon  within  six  months  to  appear  for sentence.  That would likely be the case if the appellant got into further problems with the law within the six month period.  But if the appellant stays free of trouble he will have a conviction only, no sentence.

[4]      To summarise, filed at this point, an appeal against sentence is misconceived and I intend dismissing it.

[5]      For the sake of completeness I deal with the points raised by the appellant in his notice.   First, he mentioned that he was not offered the services of the duty solicitor.   That appears to be correct.   The first question Judge Ross asked the appellant was whether he had a lawyer acting for him.  The appellant answered ‘No’. The appellant did not ask for the opportunity to speak to the duty solicitor or take other legal advice.  He did not do that at any stage of the quite lengthy interaction he had with Judge Ross.  At one point he did tell the Judge that he had a lawyer acting for him in respect of an application he had made to the Family Court for a protection order against his former partner.   So it was clear to the Judge that Mr Dellabarca knew how and where to get legal assistance if he needed it.

[6]      The appellant’s second point is that he was informed by a police officer that he would get diversion.  For the Police, Mr McCaughan advises me that the Police never advised the appellant he would receive diversion on the present charge, which is one of intentionally damaging a motor car by throwing a rock through the passenger side window of the car.  Mr McCaughan has obtained instructions from the Police.  Constable Gilman, who dealt with the appellant, recalls that, when she spoke to him after the initial complaint, she advised him that if he was charged he may be eligible for diversion.  But after investigating this matter, the Police decided that  the  appellant  was  not  eligible,  presumably  because  the  offending  was  too serious.

[7]      The last matter the appellant raises is that he acted in self defence.   If the appellant seriously believed that to be the case, then he ought not to have pleaded guilty to the charge, because self defence, if it can be made out, is a defence to a charge of this sort.  If the appellant seriously wanted to pursue self defence he would need to seek leave to vacate his guilty plea.   That is not an application that I am dealing with today, and not a course that I consider is seriously open to the appellant. Throwing a large stone or rock through the passenger window of a motor vehicle is, on the face of it, difficult to reconcile with a plea of self defence, in that the vehicle was being driven at the appellant with a view to knocking him down.

[8]      As I said, the appeal, which is against sentence only, is misconceived and I

dismiss it.

Solicitors:

Crown Solicitor, Palmerston North for the Respondent