Duff v Police - [2019] NZHC 3118

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-86

[2019] NZHC 3118

IN THE MATTER of an appeal against conviction and sentence

BETWEEN

NEVILLE MARK DUFF

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 November 2019

Counsel:

EJ Forster for appellant

G Banuelos for respondent

Judgment:

28 November 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 28 November 2019 at 3:00 pm.

Registrar/Deputy Registrar

Date………

Solicitors: Gordon Pilditch, Rotorua To: E Forster, Hastings

Duff v New Zealand Police [2019] NZHC 3118 [28 November 2019]

[1]Mr Duff pleaded guilty to the following charges:

(a)Burglary in February 2019;

(b)Disorderly behaviour and contravening a protection order on 17 May 2019;

(c)Trespass and assault on a person in a family relationship on 16 June 2019;

(d)Male assaults female and contravening a protection order on 17 June 2019;

(e)Driving dangerously, male assaults female, possession of an offensive weapon, speaking threateningly, wilful damage, and contravening a protection order on 23 June 2019.

[2] He was sentenced by Judge Hollister-Jones to two years nine months’ imprisonment in relation to all the above charges.1 He now appeals that sentence as manifestly excessive.

[3]I first summarise the facts concerning Mr Duff’s offending.

Offending

Burglary

[4] Mr Duff went to a local counselling office, broke the rear door to gain access, and took a 40-inch television from the wall. It was valued at approximately $1,000. While Mr Duff was there he made himself something to eat.

17 May 2019

[5] Mr Duff’s partner and the two children he has with her have a protection order against him. On 16 May 2019, he went to the childcare centre where one of his

1 Police v Duff [2019] NZDC 1727.

children was being cared for and attempted to uplift his child, but was unsuccessful. The next day he returned. One of the staff members told him he was not permitted on the premises and asked him to leave. He then charged at the staff member yelling “I will come over there and smash your fucking face”, and lunged at her (although did not hit her). Mr Duff left after members of the public intervened, but returned briefly later that day to pace up and down the footpath outside.

16 June 2019

[6] Mr Duff had been previously trespassed from his sister’s address. He nonetheless went to her address on 16 June 2019. Although she asked him to leave, he ignored her. Mr Duff became aggressive towards his sister, pushing her, then punching her in the ear and then the nose. He proceeded to punch her three to four more times to the head area with closed fists. She suffered minor injuries, including a bleeding nose.

17 June 2019

[7]As noted above, Mr Duff’s partner has a protection order against him.

[8] Notwithstanding this, on 17 June 2019, he arrived unannounced at her address, took leftover food off the table, picked up their one-year old child, and walked out…

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 Duff v Police

Details

AGLC: Duff v Police [2019] NZHC 3118
Case: [2019] NZHC 3118
Decision Date: 28 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Neville Mark Duff appealed against his conviction and sentence. Duff pleaded guilty to various charges including burglary, disorderly behaviour, assault, and driving dangerously. He was sentenced by Judge Hollister-Jones to two years and nine months’ imprisonment. Duff appealed the sentence, arguing it was manifestly excessive. The court considered Duff's extensive history of violent offending, including family violence, and his disregard for court orders. The court assessed the seriousness of the offending and whether the sentence was manifestly excessive. The court found that while Duff's sentence was severe, it was not excessive given the nature and extent of his offending. The court allowed the appeal and reduced the sentence to two years and five months’ imprisonment, to be allocated across the various charges. The court highlighted Duff's willingness to address the causes of his offending, including substance abuse, as a positive sign for his rehabilitative prospects.

Orders