Dunn v The Queen

[2015] NZCA 42

IN THE COURT OF APPEAL OF NEW ZEALAND

CA56/2015
[2015] NZCA 42

BETWEEN	DARRELL EDWARD JAMES DUNN Appellant
AND	THE QUEEN Respondent

Counsel:

Appellant in person
J E Mildenhall for Respondent

Judgment:

(On the papers)

3 March 2015 at 4 pm

BAIL JUDGMENT OF WILD J

The application for bail pending hearing of the application for leave to bring appeal against conviction and second appeal against sentence is dismissed.

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1. By application filed on 25 February, Mr Dunn applies for bail pending the hearing of the application he filed, on 4 February, for leave to bring a second appeal against sentence.  He also seeks to appeal his conviction.

2. Mr Dunn was originally charged with burglary, but this was reduced to theft ex dwelling. Mr Dunn pleaded guilty and was sentenced on 20 August 2014 to one month’s imprisonment,[1] to be served cumulatively upon a two year sentence of imprisonment he was already serving.[2]  The combined sentence means he is subject to the parole regime.[3]  He was declined parole on 12 December last year.[4]

   [1]R v Dunn & Parlane DC Auckland CRI-2014-004-831, 20 August 2014.

   [2]Police v Dunn DC Auckland CRI-2013-004-10613, 13 August 2014.

   [3]Parole Act 2002, s 6(4)(a).

   [4]Dunn, Decision of the New Zealand Parole Board, 12 December 2014.

3. The High Court dismissed his appeal against sentence on 19 December.[5]

   [5]Dunn v Police [2014] NZHC 3334.

4. According to Crown counsel, Mr Dunn’s proposed second appeal raises the same grounds he advanced in the High Court.

5. This Court has not yet determined Mr Dunn’s application for leave to bring a second appeal against sentence under s 253(3) of the Criminal Procedure Act 2011. Mr Dunn also has no automatic right of appeal to this Court against the conviction entered in the District Court that was not the subject of the appeal in the High Court.[6]  He is therefore not eligible for bail, because he does not come within s 55(1) of the Bail Act 2000.  He is not “… a person [who] … is appealing the conviction [and/or] sentence … to the Court of Appeal”.

   [6]The Criminal Procedure Act 2011, s 230(b) provides the first appeal court is the High Court, if the appeal is against conviction entered by a District Court presided over by a District Court Judge, other than a conviction for a category 3 offence after the convicted person elected a jury trial, or a category 4 offence. The offence of theft ex dwelling is a category 2 offence.

6. Even if there was jurisdiction to grant Mr Dunn bail, I would not do so.  He has not demonstrated the sort of “exceptional circumstance” required to grant an application of this sort.[7]

   [7]Iti v R [2012] NZCA 307 at [7]; Ellis v R [1998] 3 NZLR 555 (CA) at 560; Bail Act 2000, s 14.

7. Nor do I consider the strength of the proposed appeal and the element of delay, either singly or in combination, would warrant the granting of bail, if jurisdiction existed.  The appeal dismissed by Venning J was against sentence only.[8]  There were two grounds:  Mr Dunn was not legally represented when sentenced, as required by s 30(1) of the Sentencing Act 2001; and the sentencing Judge failed to give consideration to the effect of imposing a one month sentence upon the existing two year sentence.[9]  Venning J carefully considered each of those two grounds, but found neither was made out.[10]

   [8]Dunn v Police, above n 5, at [33].

   [9]At [6].

   [10]At [20] and [32].

8. Mr Dunn is now seeking to appeal both against his conviction and against his sentence.  The proposed ground of appeal against conviction appears to be based on CCTV footage from the Liquor Plaza bottle store from which Mr Dunn stole liquor.  He claims he instructed his counsel to obtain and advance this CCTV footage in support of his first appeal, but says counsel failed to do this.  So Mr Dunn is now seeking to challenge his conviction for theft of alcohol from the bottle store, even though he pleaded guilty to the charge after it had been reduced from one of burglary.  The grounds of appeal against sentence appear to be those dismissed by Venning J.

9. There are no delays of concern here.  The High Court heard Mr Dunn’s first appeal promptly.  This Court can deal with Mr Dunn’s leave application promptly.

10. Accordingly, the application for bail pending hearing of the application for leave to bring an appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent