Dawson v Police - [2012] NZHC 3298

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-045 [2012] NZHC 3298

BETWEEN JADE MATHEW TONY DAWSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 December 2012

Counsel: R Rai for Appellant
SA Law for Respondent

Judgment: 7 December 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 7 December 2012 at 9:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS
Till Henderson (Stratford) for Appellant
C&M Legal (New Plymouth) for Respondent

DAWSON V POLICE HC NWP CRI-2012-443-045 [7 December 2012]

Introduction

[1] Mr Dawson appeals against a sentence of nine months’ imprisonment

imposed on him by Judge AC Roberts in the District Court at Hawera on 10 October

2012. Mr Rai, on the appellant’s behalf, submits that this sentence was manifestly excessive and that the District Court Judge should have exercised his discretion to impose a sentence of home detention coupled with special conditions to attend programmes to teach him to manage his anger problem and to address his drug dependency.

Background

[2] The appellant came before the District Court Judge for sentencing on three charges to which he had pleaded guilty. The first was threatening to cause grievous bodily harm, the second was possession of cannabis, and the third was possession of utensils. The latter two charges have not featured in the appeal since the District Court Judge convicted and discharged the appellant on them without comment. The charge of threatening to do grievous bodily harm carries a maximum term of
imprisonment of seven years.1

[3] The summary of facts describes circumstances surrounding a heated argument between the appellant and his partner in a car which had pulled over to the side of the road. It is convenient to quote from the summary of facts:

Three members of the public, including the victim as named in the information, saw the defendant’s partner crying in the vehicle and could hear the defendant yelling at her.

They approached the driver’s window and asked if she was ok.

The defendant has said to them “fuck off you don’t know what this is about”.

The defendant has picked up a hammer from by his feet, got out of the vehicle and stood approximately one metre from the victim.

He raised the hammer and said “fuck off and mind your own business, I’ll smash your fucking head in” and “do you want this hammer through your head?”

The victim believed that he was about to be hit in the head with the hammer by the defendant.

The defendant was told to calm down by the members of the public and eventually got back into the vehicle, telling his partner to drive off.

[4] Of significance, is that on 8 May 2012, just two months before this incident, the appellant had been before Judge Roberts on an admitted charge of behaving threateningly. That behaviour involved a golf club and a 24 year old female. At that time, because of the appellant’s medical condition, his inability to pay…

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 Dawson v Police

Details

AGLC: Dawson v Police [2012] NZHC 3298
Case: [2012] NZHC 3298
Decision Date: 7 December 2012

CaseChat Overview and Summary

Dawson appealed against a sentence of nine months' imprisonment imposed on him by the District Court Judge for threatening to cause grievous bodily harm, possession of cannabis, and possession of utensils. The appellant argued that the District Court Judge's sentence was manifestly excessive and that the Judge should have exercised his discretion to impose a sentence of home detention with special conditions to address the appellant's anger management and drug dependency issues. The legal issues in this case were whether the starting point of 12 months' imprisonment adopted by the District Court Judge was too high and whether the Judge should have imposed a sentence of home detention. The Court found that the starting point of 12 months' imprisonment was too high and that the appropriate starting point should have been around seven months' imprisonment. The Court also found that the District Court Judge was entitled to refuse to impose a sentence of home detention given the appellant's history of criminal offending and the persistent nature of his offending. The appeal against the sentence of imprisonment was allowed and a sentence of seven months and two weeks' imprisonment was substituted. The appeal against the District Court Judge's refusal to impose a sentence of home detention was denied.

Orders