Diack v Police
[2024] NZHC 3384
•13 November 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2024-412-57
[2024] NZHC 3384
IN THE MATTER of an appeal against sentence BETWEEN
BLAIR RICHARD JOHN DIACK
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 November 2024 Representation:
L S Collins for Appellant
C E R Power for Respondent
Judgment:
13 November 2024
JUDGMENT OF OSBORNE J
Introduction
[1] Blair Diack (now aged 39) pleaded guilty to three charges of assault in a family relationship,1 a charge of injuring with intent,2 and a charge of driving while suspended.3 On 19 September 2024, having pleaded guilty following a sentence indication, he was sentenced by Judge M B Turner to two years and two months’ imprisonment.
1 Crimes Act 1961, s 194A. Maximum penalty: two years’ imprisonment.
2 Crimes Act 1961, s 189(2). Maximum penalty: five years’ imprisonment.
3 Land Transport Act 1998, s 32(1)(c) and 32(3). Maximum penalty: three months’ imprisonment or a fine not exceeding $4,500.
DIACK v POLICE [2024] NZHC 3384 [13 November 2024]
[2] Mr Diack now appeals his sentence on the basis it was manifestly excessive. Specifically, he says the Judge gave insufficient credit for personal mitigating circumstances.
Facts—the offending
[3] Between 1 March 2023 and 30 April 2023, Mr Diack and the victim were living together. One evening in that period, when the victim was in bed, Mr Diack punched her in the head three times. Within the same period, Mr Diack further assaulted the victim, punching her in the jaw following an argument. On 11 November 2023, Mr Diack was sitting in a parked car and the victim was patting her dog through the window. Mr Diack unexpectedly punched her to the side of the head and then drove off. Those facts give rise to the three charges of assault on a person in a family relationship.
[4] The injuring with intent to injure charge occurred on 12 November 2023 when Mr Diack struck the complainant to the neck and kicked her in the stomach. She fled and hid under a bridge. Mr Diack chased her, caught up to her, and punched her twice in the face and kicked her in the stomach. Given the two incidents at two locations, Mr Diack would have faced two separate charges.
[5]The assaults resulted in the following injuries:
(a)victim’s head “split open”;
(b)pain in the jaw, with a contusion; and
(c)two lumps on the head.
[6] The injuring caused concussion to the complainant and multiple soft tissue injuries.
[7] The driving while suspended charge arose because, while Mr Diack’s licence was suspended from October 2023, he drove away from the 11 November 2023 incident.
Sentencing decision
[8] The Judge received a “comprehensive and helpful psychological report” from Craig Prince, a consultant clinical psychologist; a report from Restorative Justice Otago; and the directed pre-sentence report.
[9] The Judge set a starting point of 22 months’ imprisonment for the injuring with intent charge with an uplift of nine months’ imprisonment for the three assault charges. The Judge observed the charges demonstrate an ongoing pattern of violence by Mr Diack towards the victim. The Judge did not apply an uplift for the driving charge. The total starting point was therefore 31 months’ imprisonment.
[10] The Judge applied a 10 per cent uplift for Mr Diack’s relevant previous convictions and allowed a 20 per cent discount for his guilty pleas. The Judge allowed a five per cent discount for Mr Diack’s attendance at the restorative justice conference, background factors relating to mental health issues and early negative influences, and Mr Diack’s willingness to seek treatment. The Judge was not prepared to award any greater credit as, first, he doubted the genuineness of Mr Diack’s apology and, secondly, Mr Diack had had offence-specific treatment since 2011 but this had not brought about a lasting change in his behaviour in intimate-partner relationships. The Judge referred to Mr Prince’s report where the psychologist quoted Mr Diack as attributing responsibility for this violence in intimate relationships 50 per cent to himself and 50 per cent to his partner, and that it was (in relation to the present charges) the victim being caught being unfaithful that led him to attack her as he did.
[11]A sentence of two years and two months’ imprisonment was therefore imposed.
Principles on appeal
[12] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepting sentencing principles”.5 It is appropriate that this Court intervene and substitute its own view only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
Appellant’s submissions
Guilty plea credit
[13] Mr Collins noted Mr Diack was first charged with the injuring offence and the driving offence on 13 November 2023. At the same time, he was charged with threatening to kill, a charge later withdrawn when he accepted his sentence indication in May 2024. For some months, police were making further enquiries of the victim and further charges were pending. The three assault charges were ultimately filed on 2 February 2024. In the meantime, Mr Collins sought clarification in relation to the charges. He took the view that it was difficult to give proper, informed advice to Mr Diack about the existing charges without knowing the full picture of allegations or evidence against him. Mr Collins refers also to the fact that through disclosure it was learnt the victim had two recent convictions for making false statements to the police that crimes had been committed and had served a term of imprisonment for such offending. Mr Collins notes it was incumbent on him to do due diligence prior to advising Mr Diack as to the prospect of pleas. Mr Collins said the allegation Mr Diack had used a weapon (a stick) in the attack on the victim was not evidenced in the CCTV footage of the incident, resulting in that allegation being withdrawn.
[14] Mr Collins summarised these various factors—the victim’s previous false statements; the contradiction of an allegation by CCTV footage; and prosecutorial delay in confirming all charges in evidence. He submits it was appropriate Mr Diack immediately requested a sentence indication on 2 February 2024 (the day the charges were finalised against him), with the sentence indication hearing then occurring on 14 May 2024 as scheduled. At that time the sentence indication was to relate to all
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
charges other than the threatening to kill charge, the police having offered to withdraw the latter charge if Mr Diack were to plead guilty to the other charges.
[15] Mr Collins submitted, against this background of “significant prosecutorial delay in confirming all charges/evidence”, Mr Diack was entitled to a full credit of 25 per cent for his guilty pleas. Mr Collins referred to the observations of the Supreme Court in Hessell v R.7 The Supreme Court rejected the Court of Appeal’s approach that would not allow for a credit where a plea is entered only after resolution of dispute of the facts. Mr Collins invokes particularly the following passage in the judgment:8
[61] If the circumstances indicate that a defendant is not fully prepared to acknowledge guilt at the outset, that must be factored into the sentence. But the requirement that a defendant must always plead guilty before entering the disputed facts process to get the maximum discount is too rigid. The better course is to permit sentencing judges to assess the value of the plea in the particular circumstances, without a rigid application of a scale of discounts dependent on the exact timing of the plea. The same approach should apply where the defendant has exercised his or her right to challenge the admissibility of evidence.
[16] Mr Collins points in this case particularly to the fact charges were not finalised until 2 February 2024 and that some matters (the alleged use of the stick as a weapon and the alleged threat to kill) were ultimately resolved in Mr Diack’s favour through discussions with the prosecution.
Remorse
[17] Mr Collins submits the Judge should have recognised Mr Diack’s genuine remorse. He notes in the past Mr Diack had not accepted his guilt. By contrast, Mr Diack did so promptly in relation to the present conviction. Mr Collins notes Mr Diack wrote a letter of apology to the victim and had offered to meet her in person and to apologise at a restorative justice conference. That meeting occurred and the victim accepted Mr Diack’s apology. Mr Collins submits those matters had value and merit. Mr Collins further notes both as reported by Mr Prince, and noted in the restorative justice notes, Mr Diack, in conjunction with his guilty pleas, has requested treatment to address his violence in intimate partner relationships, to address his
7 Hessell v R [2010] NZSC 135 at [59]–[61].
8 At [61].
“anger, narcissistic jealousy, everything”. He also identified he will be getting drug assessment through the Probation Service.
[18] Mr Collins submits the Judge erred in using the comments Mr Diack made to Mr Prince as reasons to question the genuineness of Mr Diack’s remorse. Mr Collins submits Mr Prince’s comments were in relation to Mr Diack’s former partners and not the victim in the present case.
[19]Mr Collins referred to Mr Diack having come to a “change of mindset”.
Respondent’s submissions
Uplift
[20] Mr Power, for the police, notes the Judge’s uplift of 10 per cent was expressed to relate to Mr Diack’s previous convictions. Mr Power notes Mr Diack’s current offending occurred while he was on sentence pursuant to a sentencing on 6 March 2023, a circumstance also relevant when a sentence uplift is being considered.
Guilty plea credit
[21] Mr Power submits Mr Diack could have entered guilty pleas at an earlier date—the Judge therefore did not err in limiting the discount to 20 per cent.
Remorse
[22] Mr Power submits the Judge did not err in limiting the discount for remorse (and other matters) to five per cent. He noted Mr Diack attributed a substantial portion of the blame to the victim and, despite treatment since 2011, he has continued to offend in intimate partner relationships.
Analysis
Guilty plea credit
[23] I do not consider the Judge erred in setting a discount of 20 per cent for Mr Diack’s guilty pleas. Mr Diack entered all his guilty pleas six months after he was
first charged. While Mr Collins correctly identifies some of the guilty pleas came promptly after the Crown had provided the necessary clarification or evidence of amendment of allegations, charges such as the injury charge and the driving charge could have been the subject of much earlier pleas. It was Mr Diack’s right to await clarification and withdrawal or amendment of some charges, and to have his counsel to mitigate the complainant’s credibility but that does not alter the fact Mr Diack could have pleaded to at least those offences which he knew he had committed as charged. It was within the Judge’s discretion to set the discount at 20 per cent, which represents a credit approaching the highest level.
Remorse
[24] In relation to remorse, I recognise Mr Diack’s willingness to engage in restorative justice and the victim’s acceptance of his apology. I also reference the statement he has made to Mr Prince and to his victim as a change of mindset. I also accept the Judge appears to have relied (at least in part) on one statement of Mr Diack quoted in Mr Prince’s report about Mr Diack’s view of the responsibility his victims shared for his violence and used it to assess the genuineness of Mr Diack’s remorse in this case. But, as I have summarised, Mr Prince also reported Mr Diack still identified it was the suggested infidelity of the victim in this case that caused him to violently offend against her. Unfaithfulness or what Mr Diack calls “deceit” is a theme that ran through Mr Diack’s discussion with Mr Prince when explaining the cause of his behaviour towards his partner generally. Having regard to the entirety of Mr Diack’s explanations to Mr Prince, it was open to the Judge to conclude Mr Diack had not clearly established a level of genuine remorse, despite having presented as remorseful to report writers.
[25] I also observe Mr Diack has a history of offending against women including rape in 2008 and family violence offending from 2017 and 2019–2020. Over half of his previous convictions pertain to violent offences. Most significantly, he was imprisoned for the 2008 rape. Circumstances of recidivist offending may reduce the weight placed on even genuine remorse.
[26] In relation to Mr Diack’s personal background, Mr Diack advised the pre- sentence report writer that he had a good upbringing. Likewise, Mr Diack told Mr Prince that he felt loved and cared for and was not exposed to domestic violence or subjected to physical abuse. While he left school early, he was able to find employment. I do not consider Mr Diack’s association with a gang in his late-teens reduces his culpability in the current offending. There is no causal connection that would have warranted a more significant discount.
[27] Mr Prince refers to a head injury Mr Diack suffered but notes the result was mild executive functioning deficits, with possible difficulties in problem-solving and inhibition. What is clear is that Mr Diack has since actively made anti-social lifestyle choices, including gang membership, which have involved—as Mr Prince reports— Mr Diack being prepared to use violence to meet his needs.
[28] It is positive that Mr Diack has requested treatment to address his violence in intimate partner relationships, but I observe as the sentencing Judge did, he has had offence-specific treatment since 2011 (that is in 2013, 2014 and 2016) to little apparent effect. It was open to the Judge to assess any credit for rehabilitation efforts and prospects at a very modest level.
[29] As such, while a discount of five per cent could be considered as sitting towards the bottom of the available range, I find it was available to the Judge to limit credit for remorse, background and prospects of rehabilitation to that level.
Manifestly excessive sentence
[30] In considering on appeal the various uplifts and discounts a Judge has assessed, it is relevant to focus not only on the level of credit challenged by the appellant but also to have regard to other adjustments. I consider the uplift of 10 per cent expressly for Mr Diack’s history of perpetrating family violence was at the lowest end of the available range for an uplift, when regard is also had to the fact the present offending occurred when Mr Diack was “on sentence”. In this case the nature of that history meant an uplift of 15 per cent would have been within range, having regard to the need for deterrence. That must be taken into account in reviewing the end sentence imposed.
Result
[31] I do not find the end sentence reached by the sentencing Judge was manifestly excessive.
[32]The appeal is dismissed.
Osborne J
Solicitors:
L S Collins, Barrister, Dunedin for Appellant Crown Solicitor, Dunedin for Respondent
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