Dempsey v The King - [2023] NZCA 461

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA441/2022
[2023] NZCA 461

BETWEEN	RONAYNE JOSEPH DEMPSEY Applicant
AND	THE KING Respondent

Hearing:	28 August 2023
Court:	Miller, Ellis and van Bohemen JJ
Counsel:	M Zintl for Applicant M J Lillico for Respondent
Judgment:	21 September 2023 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Dempsey seeks an extension of time to appeal against the minimum period of 12 years’ imprisonment imposed in his sentence of life imprisonment for the murder of Bruce Mortimer on 4 July 2015.[1] He says that through counsel error the trial Judge, Clifford J, was not made aware of extensive personal mitigating factors which would have reduced the minimum period of imprisonment (MPI) by at least 12 to 18 months.
[1]R v Dempsey [2016] NZHC 3056 at [49] [sentencing notes].
The sentence was passed on 13 December 2016 and the appeal was filed on 26 August 2022, so Mr Dempsey is out of time by five years, six months and 26 days. His explanation for delay is that trial counsel, John Sandston, did not advise him about a possible appeal against sentence or advise him of time limits on an appeal. In support of his application for extension of time he has tendered a report prepared under s 27 of the Sentencing Act 2002 and he has provided copies of specialist reports prepared during his childhood and adolescence.

The offending

Mr Dempsey and Mr Mortimer both lived in a residential complex, Franklyn Village, in Nelson. Each resident rented a separate room.
The background to the attack on Mr Mortimer was a dispute over morphine pills which he accused Mr Dempsey of stealing. Mr Dempsey claimed that in return for him helping to recover the pills Mr Mortimer agreed to speak to an acquaintance with whom Mr Dempsey was having difficulties. Mr Dempsey thought that Mr Mortimer had not kept his side of the bargain. Clifford J recounted what Mr Dempsey did about it:
[18]     In the days leading up to Friday 3 July two people had heard Mr Dempsey say he was going to stab or smash Mr Mortimer in relation to the morphine pills.
[19]     Several of your acquaintances that evening described the events. Two different groups of people had been partying in Franklyn Village. They came together, they including you, in room 214, along the corridor from your and Mr Mortimer's rooms. A number of those people said they heard you saying the guy down the hall had $200, that you wanted that money to buy alcohol and that you were going to jump him for it or stab him to get the money.
[20]     Eventually, you went to Mr Mortimer's room. Mr Brunsell followed you. You banged and knocked loudly on the door. Witnesses heard you saying that Mr Mortimer had ripped you off. Mr Mortimer…

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 The King

Details

AGLC: Dempsey v The King [2023] NZCA 461
Case: [2023] NZCA 461
Decision Date: 21 September 2023 at 10.30 am

CaseChat Overview and Summary

In Dempsey v The King, the Court of Appeal of New Zealand addressed Ronayne Joseph Dempsey's application for an extension of time to appeal against the minimum period of 12 years' imprisonment imposed on him for the murder of Bruce Mortimer. Dempsey argued that his trial counsel's failure to advise him about a possible appeal against his sentence and the associated time limits led to the delay in filing his appeal. He sought an extension of time, claiming that had the trial judge been aware of extensive personal mitigating factors, the minimum period of imprisonment could have been reduced by at least 12 to 18 months. Dempsey submitted a report prepared under s 27 of the Sentencing Act 2002 and copies of specialist reports from his childhood and adolescence in support of his application.

The central legal issues before the Court were whether Dempsey's delay in appealing was adequately explained and whether the mitigating information he provided would have materially affected the sentence. Dempsey's counsel argued that the merits of the appeal justified an extension of time. The Crown, however, contended that the delay was too long and that the mitigating information was not new, as it was already available at sentencing and could have been presented to the trial judge.

The Court found that Dempsey's explanation for the delay in appealing was unsatisfactory. Dempsey and his trial counsel had both acknowledged that Dempsey was initially content with the sentence imposed, which was less than the 17-year minimum period of imprisonment he feared. The Court also concluded that the mitigating information, though it might have been new to Dempsey, was not new to the legal process, as it was contained in reports available at the time of sentencing. The Court held that the premeditated nature of the offending and the significant aggravating factors meant that a lengthy minimum period of imprisonment was required to meet the purposes of the Sentencing Act.

Ultimately, the Court declined Dempsey's application for an extension of time to appeal. The delay in appealing was not satisfactorily explained, and the mitigating information would not have materially affected the sentence. The interests of justice did not require an extension of time, and the appeal was dismissed.

Orders