Dunlea v Police - [2020] NZHC 984

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000008

[2020] NZHC 984

BETWEEN
MICHAEL JOSEPH DUNLEA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 May 2020

Appearances:

S A Saunderson-Warner for Appellant R D Smith for Respondent

Judgment:

13 May 2020

JUDGMENT OF GENDALL J

This judgment was delivered by me on 13 May 2020 at 2:15 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DUNLEA v NEW ZEALAND POLICE [2020] NZHC 984 [13 May 2020]

Introduction

[1] This is an appeal against sentence. The appellant, Mr Dunlea, was sentenced in the District Court at Dunedin on 11 March 2020 to 29 months’ imprisonment (two years and five months) on a range of charges: charges of threatening to do grievous bodily harm (x 2), assault with a weapon, unlawfully taking a motor vehicle, possession of an offensive weapon, theft and wilful damage. Mr Dunlea appeals that sentence.

Facts

[2] On 13 November 2019 Mr Dunlea, who was employed at the time as a farm manager, arrived at an address in Clydevale to speak to a work colleague, one of the victims in this matter, who will be referred to as Mr R.1 Mr Dunlea was intoxicated and asked where his partner was. He then left that address in his partner’s vehicle and drove to his home address.

[3] Mr Dunlea’s partner had taken one of her children to a neighbours’ house for fear Mr Dunlea would come home intoxicated and cause an incident. Mr R had driven to the address out of concern for what Mr Dunlea might do next. An argument ensued. Mr R was able to overpower Mr Dunlea and hold him to the ground, in an attempt to keep him calm.

[4] Mr Dunlea asked where the children were. When told they were inside he said, “get them out here before I kill the lot of them”. He went inside, woke the children, and put them in his partner’s vehicle. A short time later he drove to the neighbours’ house looking for his partner.

[5] At the neighbours’ house Mr Dunlea knocked on the door and shouted obscenities to the Philippino occupants. The words used were both racist and obscene. Mr R had followed Mr Dunlea to the house. Mr Dunlea confronted him and then punched him twice with two blows connecting with Mr R’s face.

1 The redacted names in this memo are consistent with the District Court decision.

[6] The District Court judgment records Mr Dunlea then retrieved an empty beer bottle from his partner’s vehicle, smashed the bottom half on a fence and approached Mr R. He held the bottle about one centimetre from Mr R’s stomach and said, “you’ve got one chance to tell the truth or I’m going to fucken stab you”. He then turned to his partner and said, “have you ever seen anyone be stabbed before?” He raised the bottle to Mr R’s face, then ran…

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 Dunlea v Police

Details

AGLC: Dunlea v Police [2020] NZHC 984
Case: [2020] NZHC 984
Decision Date: 13 May 2020

CaseChat Overview and Summary

The case of Dunlea v Police is an appeal against sentence, where the appellant, Michael Joseph Dunlea, challenges the 29-month imprisonment sentence imposed on him by the District Court for multiple charges including threatening to do grievous bodily harm, assault with a weapon, unlawfully taking a motor vehicle, possession of an offensive weapon, theft, and wilful damage. The appellant argues that the sentence is manifestly excessive due to insufficient credit for mitigating factors such as addiction, childhood deprivation, and mental health issues. The District Court had adopted a starting sentence of two years and nine months, uplifted by three months for the second threat to do grievous bodily harm, three months for unlawful taking of the motor vehicle, and a further one month for each of the other three charges. The court then applied a three-month uplift to reflect the appellant's previous offending and a seven-month discount for guilty pleas, resulting in a total sentence of 29 months' imprisonment.

The appellant's counsel submitted that the sentence was manifestly excessive due to insufficient credit for mitigating factors, particularly addiction, childhood deprivation, and mental health. The Crown argued that the starting points adopted by the District Court were low, given the circumstances of the offending, and that there was no material evidence presented to the Judge that allowed credit for mitigating factors. The court found that the District Court had intended to give a full 25 per cent discount for the guilty pleas, which equates to nine months, not the seven-month discount the Judge allowed. The court also found that there was not a sufficiently clear nexus between the offending in this case, and the deprivation that Mr Dunlea had suffered as a result of his childhood experiences. The court allowed the appeal, quashed the sentence of 29 months' imprisonment, and substituted a sentence of 27 months' imprisonment (two years and three months) in its place.

Orders