Dunn v Police - [2014] NZHC 3334

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000353 [2014] NZHC 3334

BETWEEN
DARRELL DUNN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 December 2014

Appearances:

M Wharepouri for Appellant
M N H Whittington and R Gibson for Respondent

Judgment:

19 December 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 19 December 2014 at 10.00 am, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland
Copy to: M Wharepouri, Auckland

DUNN v NEW ZEALAND POLICE [2014] NZHC 3334 [19 December 2014]

Introduction

[1] On 20 August 2014 Darrell Dunn, together with another co-accused, entered a guilty plea to an amended charge of theft. The charge related to theft of alcohol from Liquor Plaza in Hobson Street in Auckland City. Judge N R Dawson sentenced him on the same date. At the time Mr Dunn was already serving a term of imprisonment. The Judge convicted him and sentenced him to one month’s imprisonment cumulative on the existing sentence. The record discloses that Mr Dunn had Ms D Bell in support as Amicus Curiae.

Application for leave

[2] Mr Dunn filed an appeal against sentence. Although Mr Dunn had apparently completed his notice of appeal on 30 September 2014 the notice of appeal was not received in this Court until 9 October 2014.

[3] The appeal is out of time. Mr Dunn seeks leave to appeal out of time. The police have not raised any formal opposition to that application. Leave is granted to appeal out of time.

Process in this Court

[4] When the appeal was before the Court on 5 December, Mr Wharepouri appeared noting that he had just been assigned. He had made a brief inquiry of the amicus but was yet to hear back. He was going to discuss the case further with Mr Dunn and advise the position. On that basis Thomas J adjourned the appeal to be called on 15 December 2014.

[5] When the appeal was next called on 15 December 2014 Mr Wharepouri advised the Court he did not feel in a position to pursue the representation of Mr Dunn any further. However, his grant of legal aid was subsequently reinstated and Mr Wharepouri has filed submissions and appeared to advance the appeal on Mr Dunn’s behalf.

Grounds of appeal

[6] Mr Wharepouri confirmed the appeal is advanced against sentence only. It is restricted to two grounds:

(a) first, that at the time Mr Dunn pleaded guilty and was sentenced, he was not legally represented so that s 30(1) of the Sentencing Act 2002 was breached;

(b)second, that the District Court Judge failed to give consideration to the effect the one month cumulative sentence would have on Mr Dunn’s current sentence, making it manifestly excessive.

The requirement for representation under s 30

[7] The Supreme Court considered the application of s 30 in Condon v R.1

Counsel assigned on legal aid to Mr Condon had withdrawn one day prior to…

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 Dunn v Police

Details

AGLC: Dunn v Police [2014] NZHC 3334
Case: [2014] NZHC 3334
Decision Date: 19 December 2014

CaseChat Overview and Summary

The appeal was brought by Darrell Dunn against the sentence imposed by Judge Dawson of the District Court. The sentence was one month's imprisonment cumulative on an existing sentence, for theft of alcohol from Liquor Plaza. Dunn argued the sentence was manifestly excessive and that he had not been legally represented at the time of his guilty plea and sentencing, contravening s 30 of the Sentencing Act 2002. Dunn sought leave to appeal out of time, which was granted. The court considered whether Dunn had been legally represented when he pleaded guilty and was sentenced, and if the sentence was manifestly excessive. The court found that Dunn had been legally represented by an amicus, Ms Bell, and that her role was sufficiently close to that of counsel assigned. The court also found that the sentence was not manifestly excessive, given Dunn's history of offending and the Parole Board's decision to decline parole. The appeal against sentence was dismissed.

Orders