Dennis v Police - [2018] NZHC 886

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-424

CRI-2017-404-438 [2018] NZHC 886

BETWEEN
RICHARD DESMOND DENNIS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 April, 1 May 2018

Appearances:

M W Ryan for Appellant

A R C Linterman for Respondent

Judgment:

2 May 2018

JUDGMENT OF WHATA J

This judgment is delivered by me on 2 May 2018 at 11.00am pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Counsel/Solicitors:
M W Ryan, Barrister, Auckland Meredith Connell, Auckland

DENNIS v NEW ZEALAND POLICE [2018] NZHC 886 [2 May 2018]

[1] Mr Dennis pleaded guilty and was sentenced to 21 months’ imprisonment on multiple charges, including injuring with intent to injure, assault with a weapon, five charges of male assaults female, one charge of indecent assault, disorderly behaviour and one charge of threatening behaviour. The central issue on appeal is whether Judge D J Sharp was wrong not to impose a sentence of home detention.

Background

[2]Mr Dennis pleaded guilty to the following summary of facts.

Male assaults female

[3] Sometime in 2006, Mr Dennis returned home after being out drinking. An argument ensued with the complainant. He picked up a baby bottle and threw it directly at the complainant’s head. The bottle struck her cheek, resulting in a black eye.

Injuring with intent to injure

[4] In late July 2006, Mr Dennis and the complainant were at a show. An argument ensued about Mr Dennis wanting to go out drinking afterwards. The complainant went home. A brief time later, the defendant also returned home. The defendant punched the complainant in the chest with a closed fist and said, “I will stop your heart”. Mr Dennis also kicked the complainant once to the buttock area, causing her ear to contact a skirting board, resulting in her ear splitting. She required several stitches.

Assault with a weapon

[5] Sometime in 2009, Mr Dennis accused the complainant of sleeping with her brother’s friends. He picked her up by the throat with his left hand. He lifted her off the ground, causing her head to bump the extraction fan. He grabbed a knife with his right hand and held it towards her face. He held the knife to the complainant’s cheek and said he would, “Fucken kill her”.

Male assaults female

[6] Between September and October 2011, the defendant kicked a second complainant in the groin with his foot.

Indecent assault

[7] The same complainant stood up and Mr Dennis grabbed her around the throat and forced her onto her knees. They walked further down the road and Mr Dennis urinated on her. They then got into a taxi together.

Male assaults female

[8] Between 1 January 2012 and 31 December 2012, Mr Dennis and the complainant were at a lodge. They got into a car together. The defendant slammed the complainant's head against the steering wheel of the vehicle and punched her in the arm. Because of…

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 Dennis v Police

Details

AGLC: Dennis v Police [2018] NZHC 886
Case: [2018] NZHC 886
Decision Date: 2 May 2018

CaseChat Overview and Summary

The appellant, Mr Richard Desmond Dennis, appealed against the sentencing decision of Judge D J Sharp, who sentenced him to 22 months' imprisonment. Mr Dennis had pleaded guilty to a number of charges, including injuring with intent to injure, assault with a weapon, multiple charges of male assaults female, indecent assault, disorderly behaviour, and threatening behaviour. The central issue on appeal was whether Judge Sharp was wrong to not impose a sentence of home detention. The Court of Appeal was required to consider whether the sentencing Judge erred in law by failing to consider all the purposes and principles of sentencing when imposing a sentence of imprisonment rather than home detention. The appeal hinged on the evaluation of the severity and nature of the offending, the need for deterrence of domestic violence, and the appellant's prospects for rehabilitation.

The Court of Appeal considered the principles outlined in Fairbrother, which state that a sentence of imprisonment can be quashed and substituted with home detention if the sentencing judge assumes that the offence category lies beyond a sentence of home detention or gives complete priority to the purpose of deterrence without regard to any countervailing purposes of sentence. However, the Court noted that a short term of imprisonment does not always have to be commuted to a sentence of home detention. The judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose, taking into account all the purposes of sentencing.

In this case, the Court of Appeal found that Judge Sharp had conducted a relatively detailed evaluation of the offending and Mr Dennis' personal circumstances against the relevant principles of sentencing. The Court was not satisfied that the Judge disregarded that overall evaluation when deciding to impose a sentence of imprisonment. The Court also found that the aggravating features of Mr Dennis' offending, particularly his unbroken propensity over several years to physically abuse his partners, strongly supported the conclusion that a period of imprisonment rather than home detention was required. The Court concluded that the proper balance of competing purposes and principles demanded a sentence of imprisonment, not home detention.

The appeal was dismissed, and the original sentence of 22 months' imprisonment was upheld.

No orders for costs were made.

Orders