Dunn v The the King - [2022] NZCA 574

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA223/2021
[2022] NZCA 574

BETWEEN	DARRELL EDWARD JAMES DUNN Applicant
AND	THE KING Respondent

Court:	Miller, Muir and Gendall JJ
Counsel:	M J Taylor-Cyphers for Applicant S K Barr for Respondent
Judgment: (On the papers)	24 November 2022 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to withdraw the notice of abandonment is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

On 10 November 2015 Mr Dunn killed Teina Wharawhara, a fellow homeless person, at Auckland. A jury found him guilty of manslaughter. On 26 October 2016 Palmer J sentenced him to a term of seven years, six months imprisonment.[1]
[1]R v Dunn [2016] NZHC 2552.
The sentence calculation was: a starting point of six years, three months;[2] an uplift of six months for his previous history of violent offending,[3] and a further uplift of nine months because he was on parole, and in breach of parole conditions prohibiting use of alcohol and drugs, when he killed Mr Wharawhara.[4] The Judge noted that Mr Dunn is of Ngāpuhi descent and that he claimed to experience remorse, but no credit was given for mitigating factors.[5] An allowance for an element of self‑defence was taken into account in the starting point.[6]
[2]At [26].
[3]At [30].
[4]At [33].
[5]At [28] and [34].
[6]At [21]–[22].
Mr Dunn appealed conviction and sentence. On the advice of senior counsel he abandoned the sentence appeal on 10 September 2019, before the hearing. His conviction appeal failed,[7] as did an application for leave to appeal to the Supreme Court.[8]
[7]Dunn v R [2019] NZCA 608.
[8]Dunn v R [2020] NZSC 58.
On 22 April 2021 Mr Dunn filed a sentence appeal. The Court has treated it as an application for leave to withdraw the 2019 abandonment.
Mr Dunn represented himself at the conviction appeal hearing but he had engaged with a number of counsel and had advice from standby counsel, Paul Dacre KC. He has not waived privilege in connection with the abandonment, but it is not in dispute that he acted on advice which extended to the issue he now wishes to raise. The decision to abandon was therefore deliberate and informed.[9] So he must point to circumstances of an exceptional nature justifying departure from the principle of finality.[10] That threshold may be met if he can point to a clear and material error of fact or law in the sentence.[11]
[9]R v Cramp [2009] NZCA 90 at [21]–[26].
[10]At [26].
[11]Marteley v R [2021] NZCA 636 at [37].
The proposed appeal is motivated by the uplift for breach of parole. Mr Dunn has now otherwise served his sentence and is to be released on sentence expiry date in May 2023. His complaint, about which he feels very keenly, is that the uplift was unjustified.
He says that he had earlier been sentenced to two years’ imprisonment on assault…

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 The the King

Details

AGLC: Dunn v The the King [2022] NZCA 574
Case: [2022] NZCA 574
Decision Date: 24 November 2022 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application by Darrell Edward James Dunn to withdraw the notice of abandonment of his sentence appeal against a conviction for manslaughter. The Court was required to decide whether the application for leave to withdraw the notice of abandonment should be granted. The applicant had previously abandoned his sentence appeal on the advice of senior counsel, but now wished to proceed with the appeal, arguing that there was a clear and material error of fact or law in the sentence.

The Court found that the applicant's point of law was not arguable. The applicant had not been technically on parole, but was subject to standard and special release conditions. The Parole Board was obliged to impose standard release conditions and might impose special release conditions. An uplift was available to the Judge for the applicant's offending that followed soon after his release and was in breach of a special release condition. The Court found that there was no material error of fact in the sentence. The Court was not persuaded that the effective sentence was out of range.

The Court declined the application for leave to withdraw the notice of abandonment.

Orders