R v Dawson - [2012] NZCA 225

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA164/2011
[2012] NZCA 225

BETWEEN THE QUEEN
Appellant

AND KANE GRAHAM DAWSON
Respondent

CA772/2011

AND BETWEEN KANE GRAHAM DAWSON
Appellant

AND THE QUEEN
Respondent

Hearing: 16 May 2012

Court: O'Regan P, White and Miller JJ

Counsel: S B Edwards for the Crown
R A B Barnsdale for Mr Dawson

Judgment: 1 June 2012 at 10.30 am

JUDGMENT OF THE COURT

AWe grant leave to the Solicitor-General to appeal against sentence (CA164/2011) but dismiss the appeal.
BWe grant an extension of time to Mr Dawson to appeal against conviction (CA772/2011) but dismiss the appeal.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

Mr Dawson was convicted after a High Court jury trial of seven charges. (We will refer to Mr Dawson as “the appellant”). He was sentenced by the trial Judge, Andrews J, to an overall sentence of 14 years imprisonment, with a minimum period of imprisonment of seven years.[1]
[1] R v Dawson HC Rotorua CRI-2009-087-2532, 25 February 2011.
The Solicitor-General seeks leave to appeal against the sentence. After counsel for the Solicitor-General filed and served her submissions in support of that leave, the appellant filed an application for an extension of time to appeal against his convictions on all seven charges.
The Solicitor-General’s application for leave and the appellant’s application for an extension of time were heard together, and in relation to both the Court heard argument on both the applications and the merits of the proposed appeals. The Crown opposed an extension of time being granted for the appellant’s appeal against conviction, given that the notice of appeal was not filed for more than eight months after the statutory deadline.
We will set out the factual background, then deal with the appellant’s application for extension of time (which will involve an assessment of the merits of the proposed appeal) and then the Solicitor-General’s application.

The charges

Five of the seven charges relate to the first complainant, whom we will call “A”. She was 16 at the time of the offending. The appellant was 27. The remaining two charges relate to the second complainant, whom we will call “B”. She was also 16 at the time of the offending. The offending against A occurred on consecutive days, Monday 3 August 2009 and Tuesday 4 August 2009. The principal offence against B occurred on Thursday 6 August 2009. The last count arose from an incident which occurred when the appellant appeared in a District Court about a month after the offending against B.

Factual background

The factual background is dealt with in some detail in the sentencing notes of Andrews J. The summary that follows largely reproduces that summary.
The first complainant A, had been in a relationship with the appellant for a few months before the offending. A told the appellant that she wanted the relationship to end. She had in fact had…

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 Dawson

Details

AGLC: R v Dawson [2012] NZCA 225
Case: [2012] NZCA 225
Decision Date: 1 June 2012

CaseChat Overview and Summary

In the case of R v Dawson, the appellant, Kane Graham Dawson, was convicted of multiple charges including rape and assault with intent to injure, with a sentence of 14 years imprisonment, with a minimum non-parole period of seven years. The Crown sought leave to appeal against the sentence, while Dawson applied for an extension of time to appeal against his convictions. The Court of Appeal heard both applications together and addressed the merits of the proposed appeals. The court granted an extension of time for Dawson to appeal against his conviction but dismissed the appeal, finding the appeal would not succeed on its merits. Regarding the Crown's application for leave to appeal against the sentence, the Court granted leave but dismissed the appeal, finding the sentence was within the appropriate range for the offending and the trial judge was well placed to make the totality adjustment.

The appellant's conviction appeal focused on two main issues: the joint trial of the counts relating to the two complainants and the decision not to give evidence at the trial. The court found that the joint trial did not result in a miscarriage of justice as the trial was not conducted on the basis of propensity reasoning, and the judge's directions were sufficient to avoid illegitimate propensity reasoning. Furthermore, the court found that the appellant's decision not to give evidence was not based on negligent advice from his trial counsel and was a difficult decision that took into account the risk of exposure to cross-examination in relation to the events involving the first complainant.

As for the sentence appeal, the Crown argued that the total sentence of 14 years was manifestly inadequate, and the uplift applied by the trial judge for the separate rapes of two victims was insufficient. The Court of Appeal found that the sentence was within the appropriate range for the offending, and the trial judge was well placed to make the totality adjustment. Therefore, the sentence appeal was dismissed despite granting leave to the Crown to appeal against the sentence.

Orders