Dungey v Police - [2014] NZHC 2933

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-000030 [2014] NZHC 2933

THOMAS WILLIAM DUNGEY Appellant

v

POLICE Respondent

Hearing: 24 November 2014 (via AVL)

Counsel:

C Ure for Appellant
C Power for Respondent

Judgment:

24 November 2014

JUDGMENT OF WHATA J

[1] Mr Dungey is appealing a sentence of one year nine months imprisonment imposed for unlawful possession of a firearm, unlawfully taking a motor vehicle, driving while disqualified, refusing an officer’s request for a blood specimen (third or more) and being unlawfully in an enclosed yard or area.

[Judge confers with counsel re offences]

[2] The grounds for the appeal are that:

(a) the initial starting point of one year three months adopted by the

Judge was too high;

DUNGEY v POLICE [2014] NZHC 2933 [24 November 2014]

(b)an initial uplift applied for the additional offending was excessive in its extent and also involved one of the offences being “double counted”;

(c) a second uplift applied amounted to “double counting” of the appellant’s previous convictions.

Background

[3] The background facts are not disputed. On Friday, 6 June 2014, Mr Dungey was drinking at the White Horse Inn, Union Street, with his work associates. He became intoxicated. The sober driver of a Toyota Hilux work vehicle gave Mr Dungey the keys to put a jersey into the truck. A .308 rifle was in the cab of the utility at the time. Mr Dungey got into the car and drove away from the White Horse Inn carpark.

[4] At about 12.05 am on the following Saturday morning Mr Dungey drove the car around the perimeter of the Otago Correctional Facility (OCF) in Milburn. At one stage the defendant stopped the vehicle and was approached by two prison officers. He did not respond to questions from them as to why he was on the OCF property. One of the prison officers saw the .308 rifle with three rounds in the magazine lying between the front seats. The officer seized the rifle and attempted to get the keys out of the ignition. Mr Dungey grabbed the keys and ran off. He was later found in a nearby paddock and he was arrested.

[5] Mr Dungey refused a passive breath test and then refused a breath screening test, evidential breath test and finally a blood test.

[6] Mr Dungey pleaded guilty on the four charges noted above and came before Judge Phillips for sentencing. The Judge noted that Mr Dungey was facing his third charge of refusing to be tested and his last conviction for refusing was as recent as August 2013. The Judge also noted that Mr Dungey was driving as a disqualified driver and that he had previous convictions for serious violence, dishonesty and breaches of Court sentences. The Judge observed that Mr Dungey did not hold a firearms licence and that his employers had told him that he could not use the work

vehicle. He noted that Mr Dungey was entirely uncooperative for the purposes of the testing…

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 Dungey v Police

Details

AGLC: Dungey v Police [2014] NZHC 2933
Case: [2014] NZHC 2933
Decision Date: 24 November 2014

CaseChat Overview and Summary

Thomas William Dungey appealed against a one-year nine months imprisonment sentence imposed for unlawful possession of a firearm, unlawfully taking a motor vehicle, driving while disqualified, refusing an officer’s request for a blood specimen (third or more) and being unlawfully in an enclosed yard or area. The appeal centred on the sentence's starting point and the extent of the uplifts applied for the additional offending. Dungey argued that the initial starting point was too high, the additional uplifts were excessive, and there was double counting of offences. The respondent argued that the sentence was not manifestly excessive given Dungey's history and mix of offending.

The court assessed whether a starting point of 15 months together with a total uplift of 12 months was manifestly excessive. The court found that a starting point of 15 months for a third refusing charge was at the top end of the spectrum but not manifestly excessive, given Dungey's prior convictions. The court found that an additional seven months uplift was appropriate for the firearms, unlawful taking, and being found without excuse. However, the court did not consider that a further uplift for prior related offending was warranted. The court concluded that a cumulative starting point of one year ten months, with a 25 per cent discount for a guilty plea, resulted in an end sentence of 17 months imprisonment. The appeal was allowed, and the sentence was substituted with an end sentence of 17 months imprisonment.

The final orders included a sentence of ten months imprisonment on the refusal charge, one month concurrent on driving without a licence, three months cumulative on the firearms charge, three months cumulative on the unlawful taking, and one month cumulative on being found without excuse. The sentence of disqualification for a period of nine months and the forfeiture orders remained appropriate.

Orders