Dunick v Police
[2014] NZHC 482
•17 March 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2014-409-003
CRI 2014-409-004
CRI 2014-409-005
CRI 2014-409-006
CRI 2014-409-007 [2014] NZHC 482
DANIEL JOHN DUNICK Appellant
v
NEW ZEALAND POLICE Respondent
Hearing: 13 March 2014
Appearances: M E Rout for Appellant
K Bell for Respondent
Judgment: 17 March 2014
RESERVED JUDGMENT OF MANDER J
[1] The appellant applies for leave to appeal out of time in respect of sentences imposed upon him by Judge MacAskill in April 2013 on a raft of charges. These included matters for which the appellant was for re-sentence, he having been originally sentenced to community work but had failed to report as directed.
[2] The principles to be applied in considering leave to appeal out of time are summarised in Cleggs Ltd v Department of Internal Affairs.1 Those principles are as follows:
(a) The onus is on the applicant to show that there existed special circumstances why the decisions and sentences should not stand;
1 Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.
DUNICK v NEW ZEALAND POLICE [2014] NZHC 482 [17 March 2014]
(b)The discretion was given essentially for the purpose of avoiding miscarriages of justice;
(c) That all the circumstances of the particular case should be considered in deciding whether sufficient grounds had been shown; but
(d)One of the matters which must be established is that there was a real likelihood that an appeal would succeed if leave were granted.
[3] The application for leave to appeal out of time is not supported in the usual way by an affidavit from the appellant. Counsel for the appellant, however, Ms Rout, has provided details of the reasons for the failure to appeal within the requisite period. She has been instructed that the appellant requested his original counsel to file a notice of appeal but that he was advised that he would need to do this himself in the absence of legal aid.
[4] Subsequently, after delays relating to the issue of legal aid, authority to uplift the appellant’s file was served on the appellant’s original counsel in August 2013. Ms Rout who by that time was acting was advised that the appellant’s former counsel no longer had possession of the file. Thereafter there were successive enquiries, to no avail. The situation was aggravated by the appellant’s present counsel being unable to obtain the sentencing notes on the basis that until an appeal was filed they would not be transcribed. Legal aid however would not be granted without justification of the merits of any appeal. Substantive progress on the appeal was not made until September 2013, following which a notice of appeal was filed seeking leave to appeal out of time to this Court. There then followed some administrative difficulties regarding the appropriate jurisdiction as between this Court and the Court of Appeal, and further difficulties with legal aid regarding instruction of counsel with the provider status necessary to appear in the Court of Appeal. Subsequently, the situation was clarified, that this Court did have jurisdiction, and a further application for legal aid was made.
[5] On the available information it does not appear that the appellant in any substantive way contributed to the delay and that the appeal has been plagued by
administrative difficulties. Having noted the background to the application for leave, I turn now to the merits of the appeal itself, which will also influence the view I take regarding the granting of leave to extent the time for filing.
[6] The appellant was sentenced in the District Court at Whakatane on
16 November 2011 to community work in respect of a number of offences. On a charge of driving while disqualified, being a third or subsequent offence, the appellant was sentenced to 100 hours community work. In respect of a charge of breaching his release conditions, 40 hours community work was imposed to be served concurrently with the 100 hours on the driving charge. On a charge of unlawfully being in a yard, a further 60 hours community work was imposed to be served cumulatively. On three separate charges of theft of petrol and one of Crimes Act assault, the appellant was sentenced to a further 100 hours community work, cumulative on the 160 hours received in respect of the other offending.
[7] After the imposition of those sentences in November 2011, it is apparent that the appellant left the area and made no attempt to undertake any of the community work. There then followed the further offending for which he was for sentence before Judge MacAskill in April 2013. An application for review in respect of the community work sentences was granted. The sentences of community work were
cancelled and sentences of imprisonment substituted, as follows:
On the driving while disqualified charge, the appellant was
re-sentenced to 4 months imprisonment.
On the breach of release conditions, 1 month imprisonment.
On the charge of being unlawfully in an enclosed yard, 1 month imprisonment.
On each of the three charges of theft of petrol and the one charge of assault, 1 month imprisonment.
[8] Each sentence was imposed cumulatively which amounted to an effective total sentence of 10 months imprisonment. Entries in the appellant’s criminal record note the imposition of a total of 10 months, not 9 months as stated in the Judge’s sentencing remarks.
[9] The appellant submits that the imposition of the 10 month substituted sentence of imprisonment is excessive having regard to the original sentence imposed of 260 hours community work. The appellant relies upon the Court of Appeal decision of R v Morgan,2 which is instructive on the proper approach to the exercise of re-sentencing prisoners who have failed to complete sentences of community work. The following guidance can be elicited from the decision:
(a) In undertaking the resentencing exercise under s 68(3)(c) of the Sentencing Act 2002, a Judge is concerned to impose a sentence that could have been imposed on the offender originally. Substituted sentences should not include any element of sanction for the failure to comply with the community work sentence.3
(b)A re-sentencing Judge is likely to weigh the various purposes and principles of sentencing in a way that is different to that which occurred on the first sentencing. For example, weight that may have originally been placed on the offender’s rehabilitation may assume less importance on re-sentencing, having regard to the offender’s failure to comply with the community-based sentence.
(c) While there must be some proportionality between the sentence originally imposed and the substituted sentence, there can be no strict correlation between them, much less some mathematical formula.
(d)The essential point is that the substituted sentence must be one that could properly have been imposed initially, and it must be imposed
2 R v Morgan [2008] NZCA 232.
3 R v Phillips CA379/90, 22 May 1991.
against the background where the sentence of community work was thought initially to be appropriate.
[10] In the case of Morgan an original sentence of 150 hours community work had been substituted with a sentence of 8 months imprisonment. The Court of Appeal concluded that such a sentence bore no relationship to the original sentence of 150 hours community work, nor the factors that gave rise to it. The Court of Appeal substituted a sentence of 3 months imprisonment on an original charge of assault with a weapon before imposing further cumulative terms in respect of the breach of community work which gave rise to the re-sentencing exercise. A further 1 month was imposed on an unrelated charge of trespass, making an end sentence of 6 months imprisonment.
[11] The appellant rightly acknowledges that each case must stand on its merits and, as the Court of Appeal observed, there can be no strict correlation or mathematical formula to calculate a comparable substituted sentence to that originally imposed. Using the guidance of the case of Morgan, however it is apparent that the total substituted sentence of 10 months imprisonment for the original 260 hours community work is excessive.
[12] In respect of the aggravated driving while disqualified charge and the breach of release conditions for which the appellant was originally sentenced to an effective sentence of 100 hours community work (40 hours being imposed concurrently for the breach of release conditions charge), a sentence of 2 months imprisonment is substituted. In respect of the further 60 hours imposed on the charge of unlawfully being in an enclosed yard, the 1 month substituted sentence of imprisonment stands. Likewise, in respect of the further 100 hours in respect of the further cumulative sentence of community work imposed on three separate charges of shoplifting and a further separate charge of common assault. The 1 month term of imprisonment imposed in respect of each separate offence is appropriate. It follows therefore that the total 10 month substituted sentence of imprisonment is reduced to one of 7 months.
[13] After the appellant failed to meet his obligations in respect of the community work imposed in Whakatane, the appellant committed a number of offences in the South Island between April and October 2012 (the current offending).
[14] The most serious charge is one of assault committed on 19 June and a related charge of disorderly behaviour likely to cause violence. Those charges arose out of a fight which resulted in the victim being kicked in the head at least six times while defenceless on the ground. The appellant was assisted by two associates who also joined in the fight. The appellant was the principal offender who administered the kicking, while the appellant’s co-offenders held the victim on the ground. The attack left the victim with significant bruising to the head and a cut to his face. The appellant’s subsequent behaviour towards Police who sought his apprehension and necessitated him being pepper-sprayed gave rise to the related charge of disorderly behaviour.
[15] In respect of this charge, the appellant was sentenced to imprisonment for
6 months and ordered to pay reparation of $340. On the disorderly behaviour likely to cause violence charge, a cumulative sentence of 1 month was imposed.
[16] In July 2012 the appellant broke into a locked computer suite at a motor camp in Blenheim. He stacked some furniture near a heater and went to sleep. Upon being discovered, he attempted to elude the Police but was subsequently arrested and found to be in possession of a pipe that he used to smoke cannabis. In respect of that charge of being found in a building without reasonable excuse the appellant was sentenced to 2 months imprisonment and ordered to pay reparation of
$70. For the possession of the pipe 1 month cumulative was imposed.
[17] On 12 August 2012, while in Hokitika, the appellant was outside a shop when he ripped a steel cigarette butt holder, used by smokers to discard their unused butts, from its mountings and caused damage. He was sentenced to 1 month imprisonment and ordered to pay reparation of $111.31.
[18] On 16 November 2011, the appellant had been disqualified from driving. Subsequently, in August 2012, he was apprehended driving a vehicle in Hokitika and
gave a false name and date of birth. On this charge of driving while disqualified in its aggravated form, the appellant was sentenced to 8 months imprisonment and disqualified from driving for 2 years and 6 months.
[19] On the charge of breaching community work, which necessitated the re-sentencing exercise detailed above, the appellant was sentenced to imprisonment for 2 months. The appellant was also sentenced on two charges of breaching bail in September and October 2012 for which he was sentenced to 1 month imprisonment on each charge.
[20] Each of these sentences of imprisonment were imposed cumulatively and amounted to some 23 months.
[21] The appellant alleges various errors were made in the imposition of these sentences. I will deal with each of these criticisms in turn.
Absence of starting point and identifying aggravating and mitigating features
[22] The appellant submits that Judge MacAskill erred in not providing a starting point or following the sentencing process outlined by the Court of Appeal in R v Taueki.4 In that case, the Court affirmed the need for the sentencing Judge to fix a starting point.
[23] Related to the District Court’s alleged failure to provided a starting point is the appellant’s submission that while a general explanation as to aggravating and mitigating factors was given, the learned District Court Judge did not identify in terms of uplift or discount the effects of those factors on the custodial sentences imposed.
[24] The Judge did not approach the sentencing exercise in the orthodox way approved by the Court of Appeal in R v Taueki and R v Mako.5 It was possible in respect of the indictable matter involving what constituted a serious assault to have
adopted a structured approach to that sentencing. However, the Judge was faced
4 R v Taueki [2005] 3 NZLR 372.
5 R v Mako (2000) 17 CRNZ (CA), at 283.
with an offender who had committed a series of discrete offences, some more serious than others. The aggravated driving while disqualified charge ultimately attracted a longer sentence than the Crimes Act assault charge, such was the recidivist nature of that offending. In my view the appellant’s criticism is really one based on form rather than substance.
[25] There was no question that the appellant was to be sentenced to imprisonment, nor is it contended otherwise on appeal. The appellant had demonstrated that he was incapable of complying with a community-based sentence. While the Judge did not take an “arithmetical” approach, I am unable to discern any factors which might bear on the appropriateness of the length of sentence imposed which were not covered by him, nor have any omissions in that regard been identified by the appellant.
[26] After reviewing the facts of the particular episodes of offending, the District Court Judge referred to the appellant’s substantial list of prior convictions, and in particular to those relevant to the offending for which he was for sentence. These included a previous conviction for common assault, five previous convictions for driving while disqualified, previous convictions for breaching release conditions, home detention, community work, and seven offences relating to burglary or unlawfully being in an enclosed yard. The Judge reviewed the appellant’s personal circumstances, his transient lifestyle and his domestic situation. The Court had regard to the observations of the pre-sentence report writer and the appellant’s counsel’s submissions, particularly the progress which the appellant appears to have made while incarcerated.
[27] The learned District Court Judge identified the relevant purposes of sentencing and the aggravating feature that much of the offending throughout the period from late 2011 until his final remand in custody was either while in breach of his community work or while on bail. The appellant’s history of non-compliance and his unresponsiveness to previous community-based sentences, coupled with the need to denounce his offending left the Judge with little option but to take a stern approach. Insofar as the Judge was able to afford credit for guilty pleas, the entry of which were varied in respect of different charges and described by the Judge as
overall “less than promptly”, what credit could be given was afforded. The Judge also observed that while the sentences imposed were cumulative, they had been moderated to take account of the totality principle.
[28] Ultimately, on an appeal against sentence the appeal Court must be satisfied that the final sentence(s) imposed were within the range available to the Judge in the exercise of his sentencing discretion, or that some error in the sentencing Court’s approach has resulted in a sentence which requires correction. I have been unable to discern any error in the Judge’s assessment which has resulted from the absence of the Judge having nominated a starting point or having identified the actual adjustments in terms of uplift of discount from that starting point.
[29] Upon my review of the learned District Court Judge’s sentencing remarks, he has appropriately taken into account all relevant matters, it is difficult to discern any personal circumstance that would have given rise to a discount, apart from the entry of guilty pleas. While the actual credit afforded has not been identified, no submission was made on appeal to the effect that the sentences ultimately imposed were excessive because of a failure to so identify that discount. The sentencing Court explicitly stated that such a factor had been incorporated into the final sentence.
[30] I accept that it is preferable that the amount of discount for a guilty plea is identified in order that the offender and others are aware of the benefit received as a result of the entry of plea. Where however a Judge is faced with a raft of different offending involving the entry of pleas at different procedural stages, an approach requiring the identification of discount in respect of each offence becomes unwieldy, if not impractical.
Parity of sentencing
[31] The appellant submits that the appellant’s custodial sentence of 6 months is not reconcilable with the sentences imposed on the appellant’s co-offenders in respect of the assault charge. The co-offenders received respective sentences of 100 hours community work and 6 months supervision, and 150 hours community work.
Emphasis is placed on the active participation of these co-offenders in the assault by holding the victim down at the time that the appellant administered the kicking.
[32] Ms Bell for the respondent advised that the first offender had pleaded guilty at the earliest opportunity. That person is aged 20 years and prior to this incident did not have any previous convictions. Initially, the co-offender was to be dealt with by way of diversion, however on reflection the Police considered the matter was too serious, notwithstanding the absence of any previous history. The other offender had only one prior conviction, and also pleaded guilty at an early stage. In comparison, the appellant has a long history of consistent offending with a previous conviction for assault in March 2012, for which he was re-sentenced by the same Judge. Having regard to the different criminal histories of each offender and the respective roles played by each in the assault, coupled with the timing of the entry of pleas, the difference in the sentences imposed is readily discernible.
Totality principle
[33] The appellant submits that while the Judge acknowledged the totality principle, it is difficult to ascertain how the Judge actually took this factor into consideration. Section 85 of the Sentencing Act 2002 provides that if cumulative sentences of imprisonment are imposed they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. A sentencing Court is required to stand back and assess whether the imposition of a series of cumulative sentences leads to a disproportionate total period of incarceration when compared with the overall criminality for which the offender is for sentence.
[34] There can be no criticism of the sentencing Court for its approach in imposing cumulative sentences as each of the offences for which the offender was being sentenced are either different in kind, one having occurred independently of the other, or were committed on different occasions in different circumstances. In that regard, I do not overlook the appellant’s submission in respect of the possession of the pipe that was found in the course of his apprehension on the charge of being found in a building without reasonable excuse, nor the submission in respect of the
length of sentence imposed for the breach of community work. Those matters aside, there was no submission that each of the component sentences could not properly be imposed on a cumulative basis.
[35] The appellant submits in respect of the breaches of community work, which carry a maximum imprisonment of 3 months, that the appellant received a custodial sentence representing two-thirds of the maximum. In my view there is little merit in that submission The Court of Appeal in Morgan, while allowing the appeal, imposed a 2 month sentence on the same charge of breach of community work cumulative on the sentence for which the appellant was being re-sentenced. In the present case the appellant did not complete any of the community work, apart from the initial induction.
[36] In total the sentence faced by the appellant was one of 33 months, representing the combination of the 10 months imposed as a result of the successful application for review of the community work sentences and the current offending. I have already accepted that 10 months imposed in re-sentencing the appellant should be reduced to an effective sentence of 7 months.
[37] Of concern is whether the sentencing Judge, notwithstanding his reference to having moderated the sentences for the current offending by taking account of the totality principle, considered that principle in the context of imposing an effective 23 month term of imprisonment on top of the 10 months arrived at as a result of the resentencing exercise. It does not appear from a reading of the sentencing notes that this type of consideration was factored into the totality analysis. I hasten to add that such a consideration is not relevant to the re-sentencing exercise in terms of arriving at an appropriate substitute sentence, but it does have a bearing on the appropriate length of the total cumulative sentence imposed on top of the substituted period of imprisonment. The same principle would apply when sentencing an offender who is already a serving prisoner.
[38] As noted, I have already adjusted the substitute sentences to one of 7 months imprisonment. Standing alone, I would not have been minded to make any adjustment for the total period of imprisonment imposed for the current offending,
but as it is to be served on top of the 7 months imprisonment imposed in respect of the application for review, I have concluded that some adjustment should be made to mitigate the cumulative effect of the eight individual sentences imposed in order to properly give effect to the totality principle. Ordinarily, but for the adjustment required in respect of the sentences imposed in substitution of the community work, the reduction might be considered tinkering but, taken together, I take the view the adjustment is worthwhile.
[39] Accordingly, in order to give full and proper effect to the totality principle, I would adjust the overall effect of the cumulative sentence of 23 months, by reducing it by 3 months. I do that by quashing the 1 month imprisonment for possession of a pipe imposed cumulatively and substitute 1 month imprisonment to be served concurrently. I reduce the sentence for the driving while disqualified in its aggravated form to one of 7 months imprisonment. The period of imprisonment of 2 months for being found in a building without reasonable excuse is quashed and substituted with a term of imprisonment for 1 month.
[40] The effect therefore is that in respect of the re-sentencing of the appellant the total term imposed is one of 7 months, and in respect of the current offending the total period of imprisonment is reduced from 23 months to 20 months. Overall, the appeal has the effect of reducing the total sentence of imprisonment by 6 months. Associated orders made in respect of the offending are not affected.
[41] It follows from my assessment of the merits of the appeal that I also grant leave to appeal out of time.
Solicitors:
Better Lawyers Limited, Christchurch
Raymond Donnelly & Co, Christchurch
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