R v DP - [2015] NZHC 1796

INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 286
CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-204-187 [2015] NZHC 1796

THE QUEEN

v

DP

Hearing: 30 July 2015

Appearances:

K Raftery for the Crown
M N Pecotic and J-A Kincade for the Prisoner

Sentence:

30 July 2015

SENTENCING NOTES OF LANG J

Counsel/Solicitors:
K Raftery, Crown Solicitors, Auckland
M N Pecotic, Barrister, Auckland
J-A Kincade, Barrister, Auckland

R v DP [2015] NZHC 1796 [30 July 2015]

[1] DP, you appear for sentence today having been found guilty by a jury on a charge of manslaughter. As I am sure you are aware, that charge carries a maximum sentence of life imprisonment.

[2] On 29 July 2015 I heard an application by your counsel for an order that your name be suppressed permanently. I declined that application and directed that your name could be published as from sentencing today.1 You have exercised your right to appeal against that decision, and of course there is now a statutory period of suppression so your name cannot be published in relation to the sentencing today.2
Whether or not it can be published in the future will depend on the outcome of the appellate process.

Background

[3] The manslaughter charge was laid after you and your 12 year old associate attempted to rob a dairy in Henderson early on the morning of 10 June 2014.

[4] The background to the matter is that you were living with your mother in a house in downtown Henderson. That address was frequented by people who were involved in the sale and consumption of drugs. You yourself were involved in that type of activity at the time.

[5] I will go into your background in a little greater detail shortly, but for present purposes I propose to set out the bare essentials of your offending. On the morning of 10 June 2014 you and your associate were egged on by another older resident of the property to carry out some form of robbery or burglary. It seems that you left the property with the intent of stealing shoes from a shoe shop in downtown Henderson. That shop had been the subject of a burglary some days earlier, and there was a feeling that it may still be insecure. When you left the house you took with you a sports bag. That belonged to another person at the address. Inside the sports bag was a lethal looking knife. It is not clear exactly when you became aware of the
existence of the knife. Logic would suggest you probably looked in the bag before

1 R v DP [2015] NZHC 1765.
2 Criminal Procedure Act 2011, s 286.

you took it from the house. Certainly, however, you knew the knife was in the bag before you got to the dairy.

[6] When you left the house you also took with you a metal pole. The evidence at…

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 DP

Details

AGLC: R v DP [2015] NZHC 1796
Case: [2015] NZHC 1796
Decision Date: 30 July 2015

CaseChat Overview and Summary

The defendant, DP, was sentenced in the High Court of New Zealand for manslaughter. The case arose from an attempted robbery at a convenience store where DP and an associate, both armed, attempted to rob the store at knifepoint. The storekeeper resisted, resulting in DP fatally stabbing him. DP was found not guilty of murder but guilty of manslaughter. The legal issues before the court were determining an appropriate starting point for the sentence, considering the aggravating and mitigating factors, and deciding on a minimum term of imprisonment. The court considered the gravity of the offence, the need for deterrence and denunciation, the effect on the victims, and DP’s young age and traumatic brain injury as mitigating factors. The court decided on a starting point of seven and a half years, reduced by 20% to six years due to DP’s age and brain injury, with a minimum term of three years and three months before parole eligibility. The court emphasized the necessity of keeping DP in a secure environment to prevent reoffending, particularly due to his vulnerability under stress or influence of drugs and alcohol.

Orders