Dalton v Police - [2014] NZHC 1335

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-43 [2014] NZHC 1335

BETWEEN
AARON JAMES DALTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 June 2014

Appearances:

K Gray for Appellant
D J Orchard for Respondent

Judgment:

13 June 2014

JUDGMENT OF MANDER J

[1] The appellant seeks to appeal a sentence of 9 months and 3 weeks imprisonment imposed upon him by Judge Neave on four charges of knowingly possessing an objectionable publication in breach of s 131A(1) of the Films, Videos, and Publications Classification Act 1993.

[2] At the time the appellant was sentenced he was not eligible to be considered for a sentence of home detention. The proposed address for an electronically monitored sentence was his mother’s. The only available accommodation however was away from the main house in a metal building which interfered with the electronic monitoring equipment. There is now a room available to the appellant inside the interior of his mother’s house as a result of a boarder moving out of the residence.

[3] The initial course taken on behalf of the appellant was to seek an application to review the sentence under s 177 of the Criminal Procedure Act 2011. That application was declined by Judge Saunders as the District Court has no jurisdiction
to review a sentence imposed in respect of a category 3 offence where the maximum

DALTON v NEW ZEALAND POLICE [2014] NZHC 1335 [13 June 2014]

penalty exceeds 3 years. As a result, the appellant now seeks to appeal his sentence of imprisonment. The appeal is now out of time, however the respondent does not oppose an extension of time for the filing of the appeal and no difficulty in that regard arises.

[4] In the circumstances however a more fundamental difficulty is apparent. The appellant is unable to identify a basis upon which the appeal could potentially be allowed. Section 250 of the Criminal Procedure Act 2011 provides as follows:

250 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

[5] In the absence of the appeal Court being able to identify an error in the sentence it must dismiss the appeal. No issue is taken by the appellant with the approach adopted by Judge Neave nor to the length of the sentence he imposed in the absence of home detention being an available option at the time of his sentencing.

[6] Ms Gray on behalf of the appellant invited me to grant leave to the appellant under s 80I of the Sentencing Act 2002 to cancel the sentence of imprisonment and substitute a sentence of home detention. Where an offender is subject to…

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 Dalton v Police

Details

AGLC: Dalton v Police [2014] NZHC 1335
Case: [2014] NZHC 1335
Decision Date: 13 June 2014

CaseChat Overview and Summary

In this case, Aaron James Dalton appealed against his sentence of imprisonment imposed by Judge Neave for possessing objectionable publications. Dalton argued that he was not eligible for home detention at the time of sentencing due to technical issues with the electronic monitoring equipment at his mother's residence. However, a room is now available inside the main house, allowing for electronic monitoring. The appeal was out of time, but the respondent did not oppose an extension of time for filing the appeal. The appellant sought an order under s 80I of the Sentencing Act 2002 to cancel the sentence of imprisonment and substitute a sentence of home detention. However, the appellant did not apply for leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention at the time of sentencing, and thus could not argue that any error arose from the leave not being granted. The court found no error in the sentence imposed, either in terms of the sentence of imprisonment or in not granting leave under s 80I, and dismissed the appeal.

The court examined whether there was any identifiable error in the sentence imposed by Judge Neave. The appellant argued that he was not eligible for home detention at the time of sentencing due to technical issues with the electronic monitoring equipment at his mother's residence. However, a room is now available inside the main house, allowing for electronic monitoring. The court noted that the appellant was not seeking to argue that any error arose from the leave not being granted at the time of sentencing. The court found that the appellant could not identify a basis upon which the appeal could potentially be allowed, as the first appeal court must dismiss the appeal in any other case. The court also noted that the appellant had not had access to counselling or rehabilitative resources to address the sexualised nature of his offending, but this was not a basis for allowing the appeal.

The court granted an extension of time for filing the appeal but dismissed the appeal in the absence of any identifiable error in the Judge's sentencing decision. The court found that the appellant had served nearly three months of his sentence, and his release date was some two months away. The court noted that the appellant would soon have the benefit of the type of supervision and rehabilitative assistance which may have been more immediately available to him if home detention had been imposed. In light of the relatively short period of time the appellant had to serve before his release date and the rehabilitative support that it was anticipated would be available to him as part of his release conditions, even had the appeal been able to be advanced, it was unlikely to have resulted in a different outcome.

Orders