Daw v R - [2011] NZCA 581

IN THE COURT OF APPEAL OF NEW ZEALAND

CA478/2011
[2011] NZCA 581

BETWEEN MICHAEL IAN DAW
Appellant

AND THE QUEEN
Respondent

Hearing: 7 November 2011

Court: Wild, Chisholm and Potter JJ

Counsel: D H Hall for Appellant
K Raftery and M Davie for Respondent

Judgment: 18 November 2011 at 10.30 am

JUDGMENT OF THE COURT

A Time for appealing is extended.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

On the first day of his trial in the District Court at Hamilton the appellant pleaded guilty to one count of burglary. He was sentenced by Judge Burnett to 16 months imprisonment and ordered to pay reparation of $480.[1] The appellant appeals against his sentence of imprisonment on the ground that the Judge did not give proper consideration to the alternative of home detention.
[1] R v Daw DC Hamilton CRI-2010-019-9904, 6 July 2011.
The appeal is one day out of time. There is no opposition by the Crown to an extension of time, which is granted.

The offending

At about 12:15 a.m. on 16 October 2010 the appellant forced a window in a motel complex, climbed into a unit, and removed a television set valued at $599. His actions were recorded on closed circuit television. At the time the room was unoccupied. The television set has not been recovered.

The appellant

The appellant is 24 years of age and has 31 prior convictions. These include burglary for which he received a six month sentence of imprisonment in May 2010. The offending giving rise to this appeal occurred shortly after he had been released from prison after serving that sentence. Earlier convictions include theft, assault with intent to rob, and breaches of various court orders.
At the time of sentencing the appellant was employed on a dairy farm and he was regarded by his employer as a hard worker. The probation officer considered that there was a high risk of re-offending, with alcohol being a key factor. It is noted in the report that the appellant had failed to comply with conditions relating to two previous sentences of community work and that he had received a short sentence of imprisonment for each of those breaches. A sentence of imprisonment was recommended.

Sentencing in the District Court

Upon pleading guilty the appellant was remanded for sentence and a home/community detention appendix was requested by the Judge. However, no appendix was provided because it became apparent that if a sentence of home detention was to be considered it would not be possible for the appellant to continue to reside at his rural address. Thus the pre-sentence report advised the sentencing Judge that the appellant had not been able to provide an alternative address and that if the Court wished to consider an electronically monitored sentence an adjournment would be necessary so that a suitable address could be identified.
Given the absence of a home detention appendix, Mr Hall asked the Judge to adjourn sentencing so that a…

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: [2011] NZCA 581
Decision Date: 18 November 2011

CaseChat Overview and Summary

In Daw v R, Michael Ian Daw appealed his sentence of imprisonment, arguing that the sentencing Judge had not properly considered the alternative of home detention. The appeal was heard by Wild, Chisholm, and Potter JJ in the Court of Appeal of New Zealand. Daw had pleaded guilty to burglary and was sentenced to 16 months imprisonment. He argued that the Judge had not given proper consideration to home detention and had erred in refusing an adjournment to obtain a home detention appendix.

The central legal issue was whether the sentencing Judge had exercised her discretion to decline home detention on a proper basis and whether she should have granted an adjournment to obtain a home detention appendix. The court found that the Judge had ample information to determine that home detention was not an appropriate sentence given the nature of the offending, Daw's recent release from prison for similar offending, and his unsatisfactory response to community-based sentences. The court noted that the Judge had correctly declined to delay sentencing for a further report, as in the case of Paora v R, and that the Judge had adequately reflected the immediate payment of reparation in the sentence.

The appeal was dismissed, and the original sentence was upheld. The court found no error in the exercise of the Judge's discretion or in the consideration of the payment of reparation.

Orders