Dempsey v Police - [2015] NZHC 2589

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2015-442-20 [2015] NZHC 2589

BETWEEN
RONAYNE JOSEPH DEMPSEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
20 October 2015

(Heard at Wellington via AVL)

Counsel:

M J Vesty for Appellant
S K O'Donoghue for Respondent

Judgment:

21 October 2015

JUDGMENT OF BROWN J (Appeal against sentence)

[1] Mr Dempsey pleaded guilty to one charge of common assault.1 On 27 July

2015 he was sentenced by Judge Whitehead to nine months’ imprisonment in the District Court at Nelson.2 Mr Dempsey now appeals against that sentence on the ground that it is manifestly excessive.

Facts of the offending

[2] At 6.00am on Sunday 25 January 2015 Mr Dempsey and an associate were on Manchester Street in Christchurch. They approached the victim, who was unknown to them, from behind and Mr Dempsey pushed him and punched him in the head. There was then a struggle, the result of which was Mr Dempsey and the victim
ending up in a bush. The associate then punched the victim in the head, causing the

1 Crimes Act 1961, s 196. Maximum penalty: one year imprisonment.
2 Police v Dempsey [2015] NZDC 14399.

DEMPSEY v NZ POLICE [2015] NZHC 2589 [21 October 2015]

victim to drop to the ground in order to protect himself. The victim suffered a sore head. The assault can be characterised as random, unprovoked and unsophisticated.

District Court sentencing

[3] The relevant paragraphs of his Honour’s sentencing notes are as follows:

[2] You have some 10 pages of prior convictions, and many of those are violence and breaching protection orders, male assaults female, and other offending across the spectrum including breach of Court release conditions, breaches of community work, possessing weapons in a public place, also assaulting police, theft, and it just goes on.

…

[5] The probation report I have read describes this particular assault as a random act of violence directed at a complete stranger. You have an ongoing propensity for violence, impulsivity and poor decision-making skills, and you have little sign of any genuine remorse. Rather eerily the probation officer said that your risk of re-offending is assessed as high because of your recidivist pattern of offending dominated by serious violence, and your risk of causing harm to others is considered high.

[6] The recommendation of the probation officer is prison. Clearly you and your counsel, Mr Vesty, accept that; the issue is how long. You seem to have settled in to the remand wing of your current prison. That is not a factor that I can take into account today. I take into account a sentence that will be deterrent for you, even though you are not going anywhere for a while, accountability and responsibility and in the public interest. I must impose the least restrictive sentence, and I am of the view that the starting point, given your history of assaultative behaviour, is 12 months. You are entitled to a discount for an early guilty plea of R v…

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 Dempsey v Police

Details

AGLC: Dempsey v Police [2015] NZHC 2589
Case: [2015] NZHC 2589
Decision Date: 21 October 2015

CaseChat Overview and Summary

In Dempsey v Police, Ronayne Joseph Dempsey appealed against his sentence of nine months' imprisonment for a charge of common assault. The case was heard at the High Court of New Zealand in Wellington via audio-visual link. The appeal centred on the severity of the sentence imposed by the District Court, which Mr Dempsey argued was manifestly excessive.

The legal issues before the court were whether the District Court erred in its sentencing methodology and whether the resulting sentence was disproportionate to the offence. The appeal was assessed under section 244 of the Criminal Procedure Act 2011, which allows for an appeal if there is an error in the sentence imposed and a different sentence should be imposed.

The court examined the sentencing notes and found that the District Court did not adequately explain the methodology used to determine the starting point of 12 months' imprisonment. The court considered the nature of the assault, which was random, unprovoked, and resulted in minor injuries to the victim. It also took into account Mr Dempsey's extensive criminal history, which included numerous convictions for violent offences. The court found that the District Court placed too much emphasis on the criminal history without sufficiently weighing the gravity of the specific offence. The court concluded that a starting point of six months was more appropriate and, after applying a discount for the guilty plea and considering the lack of mitigating factors, the appropriate sentence was six months' imprisonment.

The High Court allowed the appeal and substituted the sentence imposed by the District Court with a sentence of six months' imprisonment. This decision highlighted the need for proportionality in sentencing and the importance of properly articulating the reasoning behind the starting point and the final sentence.

Orders