Diack v The King

[2024] NZHC 3603

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2024-412-000059

[2024] NZHC 3603

BETWEEN

DANIEL PHILLIP DIACK

Appellant

AND

THE KING

Respondent

Hearing:

28 November 2024

Counsel:

C M Andersen for Appellant

M E A Brosnan for Respondent

Judgment:

29 November 2024

JUDGMENT OF LA HOOD J

(Appeal against sentence)

An alleged error in the imposition of concurrent sentences

[1]    Daniel Diack appeals against  the  imposition  of  concurrent  sentences  of  16 months’ imprisonment on one charge of breaching a protection order and one charge of threatening to kill.1 The single issue on appeal is whether the Judge should have imposed a lower concurrent sentence on one of the charges, even though this will make no difference to the overall sentence. Mr Diack says that in sentencing him to 16 months’ imprisonment on each charge, the individual sentences did not properly reflect the culpability of each offence. He submits this may impact on how a court deals with him in the future.

1      R v Diack [2024] NZDC 22530 [Decision under appeal].

DIACK v R [2024] NZHC 3603 [29 November 2024]

Background

The offending

[2]    Mr Diack and the victim had been in a relationship for around 18 months. The victim has a protection order against Mr Diack. They had a child who was almost two years old when the offending took place.

[3]    On 12 December 2023, it was arranged for Mr Diack to have a supervised visit and a call on Christmas Day with their child. On the morning of 25 December, the victim and the child were at the victim’s parents’ house. Mr Diack requested photos of the child or a video call, to which the victim responded that she would call him when they got home. Mr Diack was upset by this, and threatened to send sexually explicit videos of the victim to people she knew unless she did what he asked. He also called her a number of offensive names.

[4]    When the victim got home, she set up her phone on a video-call to Mr Diack. She placed the child in front of the phone and stayed in the background of the call. Mr Diack noticed the victim was wearing an oversized t-shirt and assumed that it belonged to a man. He became angry and, in front of the child, said, “I hope you don’t turn into a slut like your mother.” He then said to the victim that he would stab her until he killed her. The victim ended the call quickly.

Criminal history

[5]    Mr Diack’s history, especially in relation to the victim, provides important context. Mr Diack has 53 previous convictions, the most relevant being three convictions for breaching a protection order and two charges of assault on a person in a family relationship.

[6]    On 18 October 2022, the Judge who imposed the sentence under appeal, sentenced Mr Diack to 12 months’ supervision, with judicial monitoring, for assault on a person in a family relationship in relation to the same victim.2 On 30 May 2023, another Judge resentenced Mr Diack on these matters, as he engaged in further family

2      Police v Diack [2022] NZDC 20822.

violence offending against the victim; namely, assault on a person in a family relationship and breaching a protection order.3 The Judge also sentenced Mr Diack for these new offences. The end sentence was, effectively, 12 months’ intensive supervision and five months’ community detention.

[7]    Within a few days, on 2 June 2023, the same Judge who resentenced Mr Diack on 28 May, had to resentence Mr Diack again. Hours after receiving his sentence, in breach of his conditions of intensive supervision, he had posted on Facebook the victim’s address, talked about their relationship, called her a murderer and a killer, and bragged about the lenient sentence he had received.4 The Judge resentenced Mr Diack to six months’ home detention.

The District Court decision under appeal

[8]    No issue is taken with the Judge’s conclusion that the offending needed to be marked by a sentence of imprisonment.5 Both counsel agreed that a global starting point of 18 months’ imprisonment was appropriate,6 and the Judge adopted that starting point.7 In accordance with submissions of both counsel, there was an uplift  of 10 per cent to reflect Mr Diack’s previous offending,8 and a reduction of 20 per cent for Mr Diack’s guilty plea.9 No further credit was given for personal mitigating factors.10 As already noted, the Judge sentenced Mr Diack to 16 months’ imprisonment concurrently on both charges.11

Grounds of appeal

[9]    Ms Andersen submits that it was an error to impose two matching concurrent sentences on each charge, as it failed to reflect the seriousness of each offence, which

3      Police v Diack [2023] NZDC 11393.

4      Police v Diack [2023] NZDC 11375.

5      Decision under appeal, above n 1, at [9].

6 At [14].

7      The Judge did not explicitly note that it was a global starting point in his sentencing notes. However, on review of counsel’s submissions at sentencing, both accepted 18 months was appropriate as a global starting point.

8      Decision under appeal, above n 1, at [19].

9      At [20], noting the timing and the withdrawal of a more serious charge capable of proof meant that he was not entitled to a full guilty plea discount.

10     At [11] and [20].

11 At [23].

is required by s 85(4) of the Sentencing Act 2002. Ms Andersen says it is important for the gravity of each offence to be properly recorded on Mr Diack’s criminal history, as it may be relevant to how a court deals with him in the future.12

Approach on appeal

[10]   The appellant must show the sentencing judge made a material error and that a different sentence ought to be imposed.13 An appellate court will not intervene unless the sentence was manifestly excessive, wrong in principle or there are other exceptional circumstances.14 The focus is not the process by which a sentence is reached, but rather the end sentence imposed. In Tutakangahau v R, the Court of Appeal recognised that even when an end sentence imposed is within range, there may be some circumstances where it is appropriate to correct a sentence. The most straightforward example being where there is an arithmetical error which needs correction to reflect a sentencing judge’s true intention.15

Discussion

[11]Section 85(4) of the Sentencing Act provides:

85       Court to consider totality of offending

…

(4)If only concurrent sentences are to be imposed,—

(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

[12]   This reflects the pre-Sentencing Act common law position, articulated by the Court of Appeal in R v Williams, that it is generally wrong to impose equal concurrent sentences where offences vary in gravity.16 A defendant is entitled to have the

12     Citing R v Williams [1988] 1 NZLR 748 (CA) at 751.

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

14     At [29]–[31].

15 At [36].

16     R v Williams, above n 12, at 751 citing R v Smith [1975] Crim LR 468 (CA).

seriousness of each offence assessed and it may be important in future that the criminal record gives an indication of the gravity of each offence.17

[13]   However, application of these principles must always be context specific. I accept the respondent’s submission that the two offences here are so intertwined that their gravity cannot be sensibly separated.

[14]   The threat to kill and breach of protection order arose out of the same events. Although the threat to kill has a greater maximum penalty, the equivalent seriousness of each offence is reflected in the appellant’s submission that, considered in isolation, the threat to kill would have resulted in a starting point of eight to 10 months’ imprisonment, and the breach of protection order six to nine months. Each offence justifies a comparable starting point and aggravates the other to a comparable degree. And there is no dispute that together they justified a global starting point of 16 months’ imprisonment. To distinguish between the offences in these circumstances by imposing a lesser sentence on one of them, would arguably inappropriately diminish the gravity of each offence.

[15]   I do not accept the structure of the sentence imposed could inappropriately impact on future assessments of Mr Diack’s criminal history. A future court will note that the sentences were imposed concurrently and therefore be aware that 16 months’ imprisonment reflected both the overall gravity of the combined offences as well as the gravity of each offence. As the respondent notes, a court can obtain the sentencing notes if the full context of the offending needs to be considered.

[16]   However, I should not be taken as suggesting that the Judge would have been wrong to impose a lesser concurrent term on one of the offences. Judges have a wide margin of discretion in structuring sentences provided the overall result is within the available range (and there is no error of principle). I do not consider it was an appealable error to fail to impose a lesser sentence on one charge in circumstances where the offences were of comparable seriousness and aggravated one another to a comparable degree. In these circumstances, there is no strong differentiation between

17     At 751.

the two offences, and it is clear what the seriousness of the overall offending was.18 This is reinforced by the fact the sentence structure has not impacted on the overall sentence imposed, or any future assessment of Mr Diack’s criminal record.

Result

[17]I dismiss the appeal.

La Hood J

Solicitors:

Crown Solicitor, Dunedin for Respondent

18     Jane v R (1996) 14 CRNZ 101 at 105.