Dellaway v R - [2010] NZCA 100

IN THE COURT OF APPEAL OF NEW ZEALAND
CA743/2009
[2010] NZCA 100
BETWEENDEAN FREDERICK GEORGE DELLAWAY

Appellant

ANDTHE QUEEN

Respondent

Hearing:18 March 2010

Court:O'Regan, Rodney Hansen and Simon France JJ
Counsel:R G Glover for Appellant

K A L Bicknell and A C Walker for Respondent

Judgment:25 March 2010 at 3 pm

ORDER OF THE COURT

Leave to appeal out of time is granted, but the appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Introduction
[1]        Mr Dellaway appeals the sentence imposed on him in relation to three representative charges of supplying cannabis to persons under the age of 18, and charges of cultivating cannabis, possessing cannabis, disqualified driving and breaching community work. The apparent final sentence is two years nine months’ imprisonment.[1]
[1]      R v Dellaway DC Christchurch CRI 2008‑009‑8278, 27 March 2009.
[2]        We use the word apparent because the primary appeal ground is that the sentencing remarks are confused, and that the final sentence is unclear. It is submitted the sentencing exercise fails in its task of adequately informing what sentence the offender has received in relation to his offending.
[3]        An appeal against conviction was abandoned prior to the hearing, and is dismissed.
Factual background
[4]        The three charges of supplying cannabis involved encouraging young persons who visited his house to use cannabis which was supplied to them by Mr Dellaway. The three children concerning whom charges were laid on the first occasion were aged between 13 and 14 years. The charge of cultivation arose from a search of Mr Dellaway’s garage which revealed 15 plants growing. The possession of cannabis charge arose at the same time.
[5]        Concerning driving while disqualified, this was the seventh conviction for that offence. The sixth occasion had occurred five months earlier. In relation to that earlier offence Mr Dellaway was sentenced to 80 hours community work. Mr Dellaway completed 41 hours, and then just stopped attending. This is the basis of the breach of community work, another type of offending that appears in various form on his record with considerable regularity.
Submissions
[6]        As noted, the appeal is somewhat unusual in that the primary challenge is to the structure and clarity of the sentencing exercise. It is convenient therefore to set out the relevant portions of the sentencing remarks before setting out counsel’s submissions:
[9]         I deal with the term of imprisonment by way of lead sentences on the supply charges, and all of the other sentences will be inclusive. I have to first fix a starting point guided by the authorities and counsel’s references. In a convoluted way I fix the overall starting point as follows.
[10]       In relation to the three supply charges I fix it primarily at two years but uplift it for the aggravating features I have referred to by six months to arrive at two years and six months. In relation to driving while disqualified I start at six months and add six months, that is another year,…

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 Dellaway v R

Details

AGLC: Dellaway v R [2010] NZCA 100
Case: [2010] NZCA 100
Decision Date: 25 March 2010

CaseChat Overview and Summary

The case of Dellaway v R involves the appellant, Dean Frederick George Dellaway, who is appealing the sentence imposed on him by the District Court of Christchurch. Dellaway was sentenced to two years and nine months' imprisonment for various offences including supplying cannabis to persons under the age of 18, cultivating cannabis, possessing cannabis, disqualified driving, and breaching community work. The primary issue raised in this appeal is the clarity and structure of the sentencing remarks. Dellaway argues that the final sentence is unclear and that the sentencing exercise fails to adequately inform him of the sentence he has received in relation to his offending.

The Court of Appeal of New Zealand considered the submissions made by both parties and reviewed the sentencing remarks. The Court found that the warrant accurately reflects the sentences imposed by the Judge and that the sentences, both individually and collectively, were appropriate. The Court concluded that Dellaway is subject to a sentence of two years and nine months' imprisonment.

The Court of Appeal held that the sentencing remarks, while convoluted, were understandable when read in the context of the entire judgment. The Court emphasised that the key issue on appeal is whether the final total sentence is available and within range, and that rarely will the route to the final sentence be of appellate significance. The Court of Appeal dismissed the appeal against sentence, but granted leave to appeal out of time.

In conclusion, the Court of Appeal of New Zealand dismissed the appeal against sentence in the case of Dellaway v R. The Court found that the sentencing remarks, while convoluted, were understandable when read in the context of the entire judgment. The Court held that the final sentence of two years and nine months' imprisonment was appropriate and that the appeal was out of time.

Orders