Dean v Police - [2014] NZHC 1542

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-00009 [2014] NZHC 1542

BETWEEN
LUKE MORRIS DEAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 July 2014

Appearances:

R Rai for appellant
B Sweetman for respondent

Judgment:

3 July 2014

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Luke Morris Dean, pleaded guilty to one charge of injuring with intent to injure. He was sentenced by Judge Roberts in the District Court at New Plymouth on 2 April 2014 to one year and nine months' imprisonment.1
Mr Dean now appeals that sentence as being manifestly excessive.

Mr Dean’s offending – the facts

[2] In the early hours of the morning on Saturday 23 November 2013 Mr Dean, who had been drinking alcohol in a bar, approached the victim. Unprovoked Mr Dean pushed the victim in the back and then punched him in the face causing the victim to fall to the ground. Mr Dean then delivered a further five punches to the victim’s face and stomped on the victim’s head. The victim lost consciousness for a period during the assault and suffered a contusion to the right eye, abrasions to the
lips, face and head, and a partial tear to the mouth.

1 Police v Dean DC Hawera CRI-2014-021-000051, 2 April 2014.

DEAN v POLICE [2014] NZHC 1542 [3 July 2014]

[3] Disturbingly, Mr Dean had, just five months previously, been guilty of similar offending. On that occasion Mr Dean had, at a social function, knocked his victim unconscious by punching him and had then picked up a metal chair and proceeded to beat his victim as he lay unconscious on the ground. Mr Dean pleaded guilty to a charge of assault with a blunt instrument, and was sentenced to 275 hours community work and to pay reparation of $1,000.

[4] At the time of this offending Mr Dean had paid that reparation and had completed approximately 100 hours of his community work sentence.

The challenged sentencing decision

[5] By reference to the tariff decision of Nuku,2 the Judge fixed a starting point of two years’ imprisonment, noting the aggravating factors of Mr Dean’s victim’s vulnerability, particularly after he had been knocked to the ground, and of Mr Dean stomping on his victim’s head. There is, and can be, no challenge to that starting point.

[6] The Judge then uplifted that starting point by four months to take account of Mr Dean’s previous offending. In doing so the Judge noted the similarity in the offending and the closeness in time of the two incidents. For Mr Dean, Mr Rai challenges that uplift as being excessive.

[7] The Judge declined to provide any credit for remorse, notwithstanding Mr Dean’s report writer’s assessment that Mr Dean took responsibility for his offending, was prepared to make restitution by way of financial reparation and was also willing to participate in a restorative justice process. At the same time, Mr Dean’s report writer said that Mr Dean gave the impression that he felt…

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 Dean v Police

Details

AGLC: Dean v Police [2014] NZHC 1542
Case: [2014] NZHC 1542
Decision Date: 3 July 2014

CaseChat Overview and Summary

Luke Morris Dean appeals against his sentence of one year and nine months' imprisonment, imposed for injuring with intent to injure. The court was required to determine whether the sentence was manifestly excessive and whether home detention was an appropriate alternative. The sentencing judge had set a starting point of two years' imprisonment, increased by four months due to the defendant's previous similar offending, and declined to provide credit for remorse or youth. The appeal focused on whether the uplift was disproportionate, whether credit should have been given for remorse, and whether home detention was appropriate. The High Court found that the uplift was not disproportionate and that the sentencing judge was best placed to assess the genuineness of the defendant's remorse. However, the court determined that the judge had not properly considered the possibility of home detention and that it was an appropriate alternative given the defendant's youth, supportive family, and employment status. The court allowed the appeal, quashed the imprisonment sentence, and substituted it with a sentence of home detention for nine months, with conditions including an alcohol and drug assessment and anger management treatment.

Orders