R v Exley - [2024] NZHC 61

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-035-121

[2024] NZHC 61

THE KING

v

DAMON JOHN EXLEY

Sentencing: 1 February 2024

Counsel:

S A H Bishop and J G Avia for Crown

Judgment:

1 February 2024

ORAL JUDGMENT OF RADICH J

(Procedure during sentencing)

[1] The decision describes the circumstances in which the sentencing of the defendant in this case today proceeded without his physical presence in the courtroom.

[2] In my minute of 13 September 2023, I granted an application for Mr Exley to appear at this hearing by audio-visual link. Through inadvertence, an order to produce was issued for Mr Exley and he was transferred from Auckland Prison to Rimutaka Prison with a view to him being brought before the Court for this sentencing. In advance of the hearing it was determined that, in accordance with the direction made previously, Mr Exley would continue to appear by AVL but now from Rimutaka Prison. Counsel for both parties had filed written submissions in advance of the hearing as in the ordinary course.

R v EXLEY [2024] NZHC 61 [1 February 2024]

[3] Mr Exley, in advance of the hearing, provided a written statement that is dated 24 January 2024. It came before the Court yesterday and I am going to read it now:
STATEMENT OF DAMON EXLEY
To the Wellington High Court. …
I, Damon John Exley, am due to appear in person before the Wellington High Court on 1 February 2024 for sentencing on a number of matters.
I strongly maintain my innocence regarding the convictions for Rape, Kidnapping and Assault with a Weapon. As such, I would like to advise you of my refusal to be present during sentencing for these matters.
I am requesting that the Court complete the final sentencing in my absence. However, if the Court insists that I attend in person, or by AVL, I intend to participate in a ‘dirty protest’ using my own faeces. I would prefer not to do this, but I will not participate in sentencing for offences I have not committed.
If I am forced to attend Court in person, I will commence my dirty protest in the Court cells. If I am forced to attend Court by AVL, I will commence my dirty protest in my cell or the AVL booth at Rimutaka prison.
Signed and dated 25 January 2024.

[4] At the commencement of the hearing today in chambers, counsel for Mr Exley confirmed that Mr Exley’s position was maintained in the sense that he did not wish to be present for the sentencing hearing. As was discussed, under s 123 of the Criminal Procedure Act 2011 a Court is directed not to sentence a defendant for an offence in category 2, 3 or 4, which applies here, in the absence of the defendant. The provision leaves very little in the way of discretion.

[5] This morning, Mr Exley advised that he would no longer…

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 Exley

Details

AGLC: R v Exley [2024] NZHC 61
Case: [2024] NZHC 61
Decision Date: 1 February 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Wellington Registry, the case of the King versus Damon John Exley involved the sentencing of the defendant on charges of rape, kidnapping, and assault with a weapon. The defendant, Exley, had previously maintained his innocence and had expressed a refusal to attend his sentencing hearing either in person or via audio-visual link (AVL). Instead, Exley threatened to engage in a 'dirty protest' if compelled to attend, which included using his own faeces. Despite Exley's stance, statutory requirements under section 123 of the Criminal Procedure Act 2011 mandated that the court could not sentence Exley in his absence. The legal issue before the court was how to proceed with sentencing while respecting Exley's wishes and the statutory requirements.

The court, Radich J, considered the circumstances and the statutory mandate, which left little discretion regarding the defendant's presence. Exley later indicated he would remain silent if compelled to attend but had also dismissed his legal counsel. The court explored various options, including appointing standby counsel, but eventually determined that Exley could be present within the court precincts via AVL from Rimutaka Prison while remaining outside the courtroom. This decision was guided by precedents such as R v Utatao and R v Edgerton, where defendants were similarly situated within court precincts but not in the courtroom itself. The court concluded that Exley's interests were not prejudiced by this arrangement, as he could still hear the proceedings and would be aware of his sentence and the reasons for it. The court ordered that Exley be positioned outside the AVL booth but within earshot of the proceedings and that the AVL system would be configured to limit his visibility and interaction during the hearing. This arrangement allowed the court to proceed with sentencing while respecting Exley's wishes and statutory requirements.

Orders