R v Daly - [2014] NZHC 1922

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-009-001212 [2014] NZHC 1922

THE QUEEN

v

DANIEL JUAN DALY

Hearing: 14 August 2014

Appearances:

D L Elsmore and C Newman for Crown
M M Dixon and M M Cole for Prisoner

Judgment:

14 August 2014

SENTENCING NOTES OF DUNNINGHAM J

[1] Mr Daly, you appear for sentence today having been found guilty on

23 June 2014 by a jury of one charge of male assaults female. That charge arises out of events that occurred in the early morning of Friday 25 January 2013. You were acquitted on a further six counts against this complainant and four against another complainant, and one count was dismissed under s 147 of the Criminal Procedure Act 2011.

[2] You first met the complainant on Manchester Street in Christchurch, at about

1.45 pm on the morning of Friday 25 January 2013. The complainant was 19 years of age, and had, just four weeks earlier, commenced working as a prostitute.

[3] After some small talk, there was agreement that she would accompany you for the rest of the night for paid sex. It is accepted, that as part of this discussion, you said something along the lines of “it could get rough”, to which she answered
“I’m not scared of you”. While there was disagreement about payment

R v DALY [2014] NZHC 1922 [14 August 2014]

arrangements, it is clear that when asked whether you had the money for a night of sex, you showed her the considerable cash you were carrying, and said that you did.

[4] The two of you then got a taxi to go back to the YMCA where you were staying. Before she got into a taxi the complainant texted her friends to let them know that she was going off with you, for the night.

[5] When the two of you got to the YMCA you initially went onto the balcony and, after waking the woman in the neighbouring room, had a cigarette on the balcony. The complainant went to the bathroom and made a telephone call to her friend to let her know where she was, before returning to the room where sexual activities commenced.

[6] On your own admission, the sexual activity that then ensued was rough, involving activities such as thrusting your fingers into her vagina. However, I focus on the physical assaults which you accept occurred, as the charge on which you were convicted is based on these. They include grabbing the complainant’s jaw between your thumb and forefinger, covering her mouth and nose, and slapping her on the face repeatedly. As said in your own words: “I didn’t just slap her once. I slapped her face. I put my hand over her mouth and nose. In some of those times I had my other hand where I had, holding on to her hair and I used the grip I had on her hair to move her head, equivocally her neck. I have gone on 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 R v Daly

Details

AGLC: R v Daly [2014] NZHC 1922
Case: [2014] NZHC 1922
Decision Date: 14 August 2014

CaseChat Overview and Summary

In the case of R v Daly, the defendant was convicted of one charge of male assaults female. The events in question occurred in the early morning of 25 January 2013, where the defendant engaged in prolonged physical assaults against a 19-year-old prostitute. The Crown argued for a starting point of 12 months imprisonment, citing the duration and scale of the violence, as well as the vulnerability of the victim. The defence argued for a lower starting point, given the defendant's limited history of violent offending and lack of injury to the complainant. The court considered the maximum penalty of two years imprisonment for the offence, the prolonged and gratuitous nature of the assault, and the defendant's previous convictions for violence and his completion of the Stopping Violence programme. The court ultimately set a starting point of 10 months imprisonment, with no uplift or discount applied. The defendant was sentenced to 10 months imprisonment.

The final orders of the court were that the defendant, Daniel Juan Daly, be imprisoned for a term of 10 months. No special release conditions were imposed, given the defendant's completion of a Stopping Violence programme and the Probation Officer's comments. The defendant may now stand down.

Orders