Duval v Police - [2018] NZHC 393

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000042 CRI-2018-404-000043

CRI-2018-404-000044 [2018] NZHC 393

BETWEEN
JACOB JAMES DUVAL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 March 2018

Appearances:

Dennis Dow and Susan Giles for the Appellant Annabel Linterman for the Respondent

Judgment:

13 March 2018

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 13 March 2018 at 2:45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

DUVAL v NEW ZEALAND POLICE [2018] NZHC 393 [13 March 2018]

Introduction

[1] The appellant, Jacob James Duval, aged 21, was sentenced to seven months’ imprisonment concurrently imposed on a variety of charges by Judge J Jelas on 14 February 2018 at the Waitakere District Court.

[2] Her Honour declined to convert that sentence to home detention on the grounds that given Mr Duval’s significant history of non-compliance she had no confidence he would complete the sentence without incident.

[3] Mr Duval appeals on the narrow question of whether the Judge should have exercised her discretion to order home detention.

Background facts

[4] In his submissions filed in support of the appeal, Mr Dow, for Mr Duval, helpfully provided a table which I have modified for present purposes. This sets out the seven charges Mr Duval pleaded guilty to. For convenience the charges may be divided into three categories defined by the dates of offending; 9 June 2017, 18 October 2017 and 24 December 2017.

Date Charge Maximum sentence End sentence

9 June 2017 Common assault
1 year’s

imprisonment
5 months

18 October 2017 Driving whilst disqualified (3rd or subsequent)
2 years’

imprisonment;
$6,000 fine
7 months

18 October 2017 Dangerous driving
3 months’

imprisonment;
$4,500 fine
3 months

18 October 2017

Failed to stop for red and blue lights (3rd or subsequent)

3 months’

imprisonment;

$10,000 fine

2 months

18 October 2017 Breach of community detention
6 months’

imprisonment;

$1,500 fine
2 months

24 December 2017 Escaping Police custody
5 years’

imprisonment
6 months

Date Charge Maximum sentence End sentence

24 December 2017 Resisting Police
3 months’

imprisonment;
$2,000 fine
1 month

[5] The description set out below is drawn from the summaries of fact which Mr Duval accepted as accurate.

Assault (9 June 2017)

[6] On 9 June 2017 the victim was leaving his home to go to work. As he walked across the road Mr Duval, who was waiting with an associate, challenged him saying, “You’ve been talking shit about me …”.1 The victim denied this and threw a punch at Mr Duval who responded by running at the victim and tackling him to the ground. He then launched a prolonged attack on the victim punching him in the head and face several times while the victim attempted to shield his head in his arms. As a result of the attack, the victim was bruised and required treatment by attending ambulance staff. When spoken to by the Police…

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 Duval v Police

Details

AGLC: Duval v Police [2018] NZHC 393
Case: [2018] NZHC 393
Decision Date: 13 March 2018

CaseChat Overview and Summary

The appellant, Jacob James Duval, appeals against his conviction and sentence imposed by Judge Jelas at the Waitakere District Court. Duval pleaded guilty to multiple charges including assault, driving whilst disqualified, dangerous driving, failed to stop for red and blue lights, breach of community detention, resisting police, and escaping police custody. The primary legal issue before the court is whether the Judge should have exercised her discretion to order home detention instead of a seven-month imprisonment sentence. The court must determine whether there was an error in the Judge's exercise of discretion in not imposing the least restrictive outcome appropriate in the circumstances. The court found that the Judge had considered the relevant factors and properly weighed the purposes and principles of sentencing. The court concluded that the Judge did not err in her sentencing decision and dismissed the appeal. The sentence of seven months' imprisonment remains in place.

Orders