Dunick v Police - [2014] NZHC 482

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,…

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 Dunick v Police

Details

AGLC: Dunick v Police [2014] NZHC 482
Case: [2014] NZHC 482
Decision Date: 17 March 2014

CaseChat Overview and Summary

In the case of Dunick v Police, Daniel John Dunick appeals against his sentences imposed by Judge MacAskill in April 2013, which included a re-sentencing for failing to report as directed for community work. The appellant seeks leave to appeal out of time, arguing that the substituted sentence of imprisonment for his original community work sentences was excessive. The legal issues before the court include whether the substituted sentence was appropriate and if there were errors in the imposition of the sentences for the current offending.

The court considers the principles for granting leave to appeal out of time, emphasizing the need to avoid miscarriages of justice and the likelihood of a successful appeal. The court finds that the appellant did not significantly contribute to the delay and that the appeal was hindered by administrative difficulties. Regarding the merits of the appeal, the court examines the substituted sentence for the original community work, finding it excessive in relation to the original 260 hours community work. The court reduces the total substituted sentence of imprisonment from 10 months to 7 months. The court also assesses the sentences for the current offending, addressing criticisms regarding the absence of a starting point, parity of sentencing, and the totality principle. The court adjusts the cumulative sentence for the current offending to properly apply the totality principle, reducing the total sentence of imprisonment by 6 months. The court grants leave to appeal out of time and adjusts the sentences accordingly.

Orders