Duggan v Police - [2023] NZHC 1948

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-030

[2023] NZHC 1948

DANIEL DUGGAN

v

NEW ZEALAND POLICE

Hearing: 25 July 2023

Counsel

C Sheat for Appellant

A Brosnan for Respondent

Judgment:

25 July 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 24 April 2023, the appellant, Mr Daniel Duggan, was convicted and discharged by Judge Mika at the Family Violence Court in the Hutt Valley District Court1 after pleading guilty to a charge of assault on a person in a family relationship.2 In convicting and discharging the appellant, the Judge declined the appellant’s application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. The appellant now appeals the Judge’s decision declining that application on the grounds that the Judge erred in finding that the direct and indirect consequences of conviction the appellant had raised were speculative.

1 Police v Duggan [2023] NZDC 7734 [decision under appeal].
2 Crimes Act 1961, s 194A – maximum penalty two years’ imprisonment.

DUGGAN v NEW ZEALAND POLICE [2023] NZHC 1948 [25 July 2023]

Background to the offending

[2] The facts are not in dispute and were set out by the Judge in his sentencing notes as follows:

[3] The relevant facts of the offending are that Mr Duggan and the victim in this matter at the date of the offence had been in a relationship for about two years. The victim was eight months pregnant at the time. Mr Duggan and the victim were at the home address […] at about 10 o’clock [in the morning]. There was an argument. Mr Duggan was seated in the driver’s seat of the victim’s car. He refused to get out of the car or return the key to the victim when he was requested. At this point, the victim has grabbed Mr Duggan’s Xbox to exchange in return for her car key. Mr Duggan has come out of the vehicle and pushed the victim out of his way. It was hard enough for her to push against an outside wall.

[4] Mr Duggan took his Xbox from the victim and started to throw items around in their home. Mr Duggan slammed the ranchslider of the cabin against the victim’s leg on multiple occasions as she tried to get in. The victim has removed the car key from the ignition when Mr Duggan tried to get back into the vehicle. Mr Duggan has wrestled the key from the victim, he has attempted to drive away in the car and pushed the victim when she tried to stop him from driving off in her car. The police arrived a short time later. The victim received injuries including bruising to her forearm and to her right leg.

Decision under appeal

[3] In convicting and discharging the appellant, the Judge declined the appellant’s application to be discharged without conviction.

[4] In terms of the gravity of the offending, the first stage of the assessment, the…

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.

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Details

Case: [2023] NZHC 1948
Decision Date: 25 July 2023

CaseChat Overview and Summary

The appellant, Daniel Duggan, appealed against the decision of Judge Mika at the Family Violence Court in the Hutt Valley District Court, who declined his application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. The appeal centred on the Judge’s finding that the direct and indirect consequences of conviction were speculative. Duggan argued that the consequences would have a significant impact on his mental health and future employment prospects. The court assessed the gravity of the offending, which involved multiple physical assaults on a pregnant partner, as low to moderate. The Judge considered the direct and indirect consequences of a conviction to be speculative, particularly regarding employment prospects, as Duggan was not currently seeking new employment and there was no evidence of specific risks to his future employment. The court held that the consequences of conviction were not out of all proportion to the gravity of the offence, given the relatively minor nature of the offending compared to other cases where general consequences were deemed disproportionate. The appeal was dismissed, affirming the Judge’s decision.

Orders