Dear v Police - [2022] NZHC 2474

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000257

[2022] NZHC 2474

BETWEEN
ROYCE ATFIELD DEAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 September 2022

Counsel:

PJ Syddall for Appellant

BS Rorrison for Respondent

Judgment:

29 September 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 29 September 2022 at 12 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Auckland. PJ Syddall, Auckland.

DEAR v POLICE [2022] NZHC 2474 [29 September 2022]

The case

[1] Royce Dear appeals a sentence of nine months’ imprisonment on a charge of attempted burglary, two charges of receiving stolen property, and one charge of breaching conditions of intensive supervision.1 An appeal must be allowed if there was an error in the sentence and a different one should be imposed.2 Or, in short, if the sentence is manifestly excessive.3

Background

[2] In the early hours of 24 October 2021, Mr Dear and another attempted to break into a commercial refrigerator using crowbars and a hammer, causing $600 worth of damage. Police intervened, hence the charge of attempted burglary. Earlier that month, Mr Dear twice received stolen property totalling $600. Earlier again—on 18 May 2021—Mr Dear failed to report as required by a sentence of intensive supervision.

[3] Judge N R Dawson treated the attempted burglary as the lead offence, for which he adopted a starting point of 10 months’ imprisonment. The Judge added a total of three months for the other offending, then another month for Mr Dear’s record; Mr Dear has an extensive criminal history.

[4] The Judge deducted 25 percent for Mr Dear’s guilty pleas, and a further 10 percent for mitigating features identified in a cultural report. The Judge declined to impose a sentence other than imprisonment. He noted Mr Dear had received community-based sentences, including sentences of supervision, “none of which have deterred you from offending”.4

The appeal

[5] On Mr Dear’s behalf, Mr Syddall takes no issue with the starting point or increases, which he accepts are “entirely within range”. However, Mr Syddall

1      Police v Dear [2022] NZDC 14712.
2      Criminal Procedure Act 2011, s 250(2).
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
4      Police v Dear, above n 1, at [15].

contends the Judge should have given greater discount for the cultural report-based features, particularly “addiction and mental health issues”. He also contends the sentence should have been commuted to home detention. Mr Syddall argues Mr Dear has embarked on a rehabilitative path, which home detention would facilitate.

Analysis

[6] Mr Syddall relies heavily on the cultural report Mr Dear placed before the District Court. The report was written by Lara Syddall, who has a Masters in Education,5 and Vanna Blucher, a specialised education needs coordinator. The report says Mr Dear:

(a)Began using alcohol at the age of 10, then cannabis and methamphetamine from the age of 12.

(b)Was expelled from school when 14.

(c)Began to experience psychotic…

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 Dear v Police

Details

AGLC: Dear v Police [2022] NZHC 2474
Case: [2022] NZHC 2474
Decision Date: 29 September 2022

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Royce Atfield Dear against his sentence of nine months’ imprisonment for attempted burglary, receiving stolen property, and breaching intensive supervision conditions. The appeal centred on whether the sentence was manifestly excessive. The District Court had treated the attempted burglary as the lead offence, setting a starting point of 10 months' imprisonment, and increased the sentence based on other offences and Dear's criminal history. The court applied discounts for guilty pleas and mitigating factors, such as addiction and mental health issues identified in a cultural report, but did not impose a sentence other than imprisonment. The appeal argued that the court should have given greater discount for the cultural report-based features, particularly addiction and mental health issues, and should have commuted the sentence to home detention. The High Court found that the starting point and increases were acceptable, and the cultural report did not provide persuasive evidence to justify a greater discount. The court also noted that the report's reliance on self-reporting and the qualifications of the authors raised concerns. The court further determined that the aspects identified by the appellant supported a sentence of home detention, but given Dear's history of community-based sentences and continued offending, the sentence was not manifestly excessive. The appeal was dismissed.
This case underscores the importance of the cultural report's credibility and the qualifications of its authors, as well as the need to consider the defendant's history of offending and the effectiveness of previous community-based sentences when determining an appropriate sentence.

Orders