Dearman v R - [2016] NZCA 143

IN THE COURT OF APPEAL OF NEW ZEALAND

CA408/2015
[2016] NZCA 143

BETWEEN	CLINTON MICHAEL DEARMAN Appellant
AND	THE QUEEN Respondent

Hearing:	2 March 2016
Court:	Ellen France P, Keane and Dobson JJ
Counsel:	AND Garrett for Appellant K S Grau for Respondent
Judgment:	29 April 2016 at 3 pm

JUDGMENT OF THE COURT

A An extension of time to appeal against sentence is granted.

B The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Keane J)

On 2 October 2013, Clinton Dearman was sentenced in the Dunedin District Court, to imprisonment for seven and a half years, and a 50 per cent minimum period of imprisonment, three years, nine months, for two aggravated robberies of the Forbury Pharmacy, Dunedin, the first on 4 July 2012 and the second on 29 November 2012.[1]
[1]R v Dearman DC Dunedin CRI-2012-012-4014, 2 October 2013.
This sentence, in its totality, is consistent with a sentence indication the sentencing Judge, Judge Crosbie gave Mr Dearman on 27 June 2013, as a result of which Mr Dearman pleaded guilty to the two offences.[2] Originally, as a result of the second offence, Mr Dearman also stood charged with kidnapping and aggravated assault. But, the Crown undertook not to pursue the kidnapping charge at the sentencing indication and Mr Dearman was subsequently discharged on both charges.
[2]R v Dearman DC Dunedin CRI-2012-012-4014, 27 June 2013.
On 15 July 2015, Mr Dearman, who by then was acting for himself, appealed his convictions as well as his sentence, one year, eight months out of time, complaining about the conduct of his then counsel (not his counsel on this appeal). He has since abandoned that aspect of his appeal. He appeals his sentence.
First Mr Dearman contends that the starting point the Judge took for the first of his aggravated robberies, seven years, ought to have been no higher than six years, the starting point the Judge had intimated in his sentencing indication; and that this alone rendered his sentence manifestly excessive.
Secondly, he contends that in uplifting the starting point robbery by two years three months for the second aggravated robbery the Judge wrongly assumed that it was aggravated by the related assault. However, he had been discharged on the assault charge. On that basis, he contends that the uplift must have been inflated.
Mr Dearman is entitled to pursue his appeal against sentence, despite the fact that he accepted a sentencing indication.[3] He requires an extension of time to do so.[4] He was to give an affidavit explaining his delay but did not do so in time for his appeal. The Crown contends that the interests of justice do not justify any extension, but accepts that it is unprejudiced. We have heard his appeal on its merit.

Two aggravated robberies

[3]Crimes Act 1961, s 383(1). Section 245 of the Criminal Procedure Act 2011 recognises that an appeal can be brought against a sentence that has been imposed following a defendant accepting 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.

Continue reading Dearman v R

Details

AGLC: Dearman v R [2016] NZCA 143
Case: [2016] NZCA 143
Decision Date: 29 April 2016 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Clinton Michael Dearman against his sentence for two aggravated robberies of a pharmacy in Dunedin. The appeal centred on the starting point and uplift for the second robbery. Dearman argued that the starting point for the first robbery should have been six years, not seven, and that the uplift for the second robbery was inflated due to an incorrect assumption about the related assault charge. The Crown argued that the sentence was appropriate and that Dearman's appeal was out of time. The Court allowed the appeal on the grounds of time but dismissed it on the merits, holding that the starting point and uplift were correctly determined.

The legal issues before the Court were whether the starting point for the first robbery was correctly set at seven years and whether the uplift for the second robbery was properly calculated. Dearman argued that the starting point should not exceed six years based on the guidelines in R v Mako. He further contended that the uplift for the second robbery was inflated because the Judge wrongly considered the dismissed charge of aggravated assault. The Crown maintained that the Judge's decisions were justified and proportionate to the gravity of the crimes.

The Court found that the starting point for the first robbery was appropriately set at seven years, aligning with the precedent in R v Collett. The Court concluded that the Judge was entitled to regard Collett as a reliable comparator, despite the differences in the number of robberies and the type of weapon used. The Court also found that the Judge had correctly determined the uplift for the second robbery without considering the dismissed assault charge, and that the overall sentence was neither excessive nor disproportionate. Therefore, while granting Dearman an extension of time for his appeal, the Court dismissed the appeal on the merits, affirming that the sentence was just and appropriate.

Orders