Dwyer v Police - [2021] NZHC 2563

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-36

[2021] NZHC 2563

CHRISTOPHER NICHOLAS DWYER

v

NEW ZEALAND POLICE

Hearing: 28 Septemer 2021

Counsel:

S Hunt for Appellant

J E Bourke for Respondent

Judgment:

28 September 2021

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 2 September 2021 Mr Dwyer was sentenced by Judge Hikaka in the New Plymouth District Court to four months’ imprisonment (with six months’ post- release conditions and reparation) on three charges: one charge or unlawfully taking a motor vehicle, and two charges of breaching home detention.1

[2] Mr Dwyer appeals on the grounds that the sentencing Judge erred by not imposing the least restrictive outcome available in the circumstances, and failing to have proper regard to s 26 of the Sentencing Act 2002.

1 Police v Dwyer [2021] NZDC 17585.

DWYER v NEW ZEALAND POLICE [2021] NZHC 2563 [28 September 2021]

[3] The primary issue for determination is whether imprisonment was the least restrictive outcome appropriate in the circumstances, and whether a combined sentence of community work and intensive supervision is sufficient to reflect the principles and purposes of the Sentencing Act.

Background

Factual background

[4] On 25 February 2021, Mr Dwyer convinced an associate to hire a vehicle from Budget Rentals New Plymouth. He then convinced his associate to extend the rental for a further five days and was provided a different vehicle – a Ford Ranger valued at
$50,000. Mr Dwyer took possession of that vehicle, used it for his personal use and did not return it. He told his associate that he had made arrangements with the rental company, which was false. Mr Dwyer then changed registration of the vehicle into his name, and when it was not returned the vehicle owners reported it to the police.

[5] The vehicle was recovered near Mr Dwyer’s address with his personal belongings inside it. He admitted the facts as outlined and explained that he had originally planned to return the vehicle, but that it had “all got out of hand”, and he could not afford the rental invoice.

[6] On 22 March 2021, Mr Dwyer was sentenced to five months’ home detention on charges of assault with intent to injure and wilful damage. A condition imposed as part of this sentence was that Mr Dwyer was not to associate with or contact the victim of these offences.

[7] It is significant that the associate referred to in relation to the theft charge was in fact the victim in relation to a charge of assault with intent to injure that Mr Dwyer had been sentenced to home detention on. It was a condition of that sentence that he does not associate with her.

[8] On 22 June 2021, Community Corrections visited Mr Dwyer’s address to verify his new accommodation and discovered that there was a female present.

Mr Dwyer introduced this person as “Rosie”, but she was identified at a later date as being the victim…

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 Dwyer v Police

Details

AGLC: Dwyer v Police [2021] NZHC 2563
Case: [2021] NZHC 2563
Decision Date: 28 September 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Christopher Nicholas Dwyer appeals against a sentence imposed by the New Plymouth District Court. The appeal focuses on the sentencing judge's decision to impose a four-month imprisonment term, coupled with six months of post-release conditions and reparation, on three charges: unlawfully taking a motor vehicle and two breaches of home detention. The key legal issue is whether the judge erred by not imposing the least restrictive outcome appropriate in the circumstances, and if the sentence complied with the Sentencing Act 2002.

The court considered the hierarchy of sentencing options outlined in the Sentencing Act, where community-based sentences are preferred over imprisonment. However, the judge found that Mr Dwyer's persistent deception and breaches of home detention, along with his manipulation of the victim, warranted a custodial sentence. The court concluded that the purposes of denunciation, deterrence, protection of the community, and providing for the interests of the victim could not be achieved through a community-based sentence. The appeal was dismissed, affirming the original sentence.

Orders