Dalley v R - [2010] NZCA 290

IN THE COURT OF APPEAL OF NEW ZEALAND
CA136/2010
[2010] NZCA 290
BETWEENALFRED HARRY DANNY DALLEY

Appellant

ANDTHE QUEEN

Respondent

Hearing:15 June 2010

Court:Chambers, Winkelmann and Fogarty JJ
Counsel:B L Sellars for Appellant

M D Downs for Respondent

Judgment:7 July 2010 at 11 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.
BThe sentence of five years, nine months’ imprisonment is quashed. In substitution therefor:
(a)a sentence of four years, four months’ imprisonment is imposed on the wounding with intent charge; and
(b)a sentence of eighteen months’ imprisonment is imposed on the aggravated burglary charge

- both sentences to be served concurrently.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
[1]        This is an appeal against a sentence of five years nine months’ imprisonment on each of one count of aggravated burglary and one count of wounding with intent to cause grievous bodily harm.[1]
[1]     R v Dalley DC Auckland CRI-2008-027-2442, 4 March 2010.
[2]        Mr Dalley now appeals against the sentence as being manifestly excessive. Ms Sellars, for Mr Dalley, submits Judge Field’s starting point was too high, and his discount of only three months for Mr Dalley’s mental health problems too miserly.
The offending
[3]        At approximately 2 am on 5 October 2008 the appellant was in the vicinity of the victim’s home address in Kaikohe.   He located a wooden chair which he placed underneath a toilet window outside the victim’s house, removed the glass louvres from that window and placed them on the ground some distance away, and concealed them with vegetation. He then climbed through the window into the house and went into the kitchen at which point he rushed at the victim who was sleeping in an armchair. He threatened to kill him saying:
I’m going to kill you, you put me away for three years and I should gouge your eyes out before I kill you.

The victim described him as “yelling like a crazy man”. Mr Dalley was throwing items around the lounge area and attempted to pull the telephone off the wall.
[4]        The victim, who was 70 years old but fit and quite strong, attempted to grab him and remove him from the house. A struggle ensued during which time the appellant picked up a torch from among the victim’s belongings and struck him on the head with sufficient force to smash the torch and leave the victim with a 7.5 cm laceration on his scalp. The appellant then fled the scene. The victim was kept in hospital overnight.
[5]        The victim was known to the appellant. In 2004 the appellant had been charged with assaulting him. He was acquitted on that charge but convicted of common assault of a neighbour who tried to intervene.
Judge Duncan Harvey’s original sentencing decision
[6]        Mr Dalley, having entered guilty pleas to the two charges, was originally sentenced by Judge Duncan Harvey.[2] Judge Harvey sentenced Mr Dalley to a total period of imprisonment of five years nine months. Mr…

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.

Continue reading Dalley v R

Details

AGLC: Dalley v R [2010] NZCA 290
Case: [2010] NZCA 290
Decision Date: 7 July 2010

CaseChat Overview and Summary

The appellant, Alfred Harry Danny Dalley, appealed against his sentence of five years and nine months’ imprisonment, imposed for charges of aggravated burglary and wounding with intent. The case was heard by the Court of Appeal of New Zealand, with Chambers, Winkelmann, and Fogarty JJ presiding. The appeal was against the severity of the sentence, which Dalley claimed was manifestly excessive. The central legal issues were whether the starting point for the sentence was appropriately set and if the discount for Dalley's mental health issues was adequate.

The Court of Appeal found that Judge Harvey’s starting point of nine years was too high, considering the specific circumstances of the case. They also held that the three-month discount for Dalley’s mental health issues was insufficient. The court acknowledged Dalley's bipolar disorder and his lack of medication control at the time of the offence, which significantly influenced his behaviour. Consequently, they determined that a one-year reduction for mental health issues was more appropriate. The Court substituted a sentence of four years and four months for the wounding with intent charge, and eighteen months for the aggravated burglary charge, to be served concurrently.

The final orders of the Court of Appeal quashed the original sentence and imposed the new sentences as outlined.

Orders