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 stage a protest of the sort described in the statement that I have referred to but that he would, instead, remain silent during the hearing. Accordingly, Mr Exley sat with his back to the camera.

[6]                 In addition, yesterday Mr Exley advised his counsel that he no longer wished for them to act for him. Accordingly, at the commencement of an in-chambers hearing, counsel for Mr Exley advised that they would need to seek leave to withdraw if     Mr Exley confirmed his position. When Mr Exley was then asked by me, he confirmed to the Court that he no longer wished for Ms Ord and Mr Pohiva to represent him.

[7]                 I indicated at that stage the process that I was proposing was as follows. I would adjourn for a short period to enable counsel to consider their positions and, if an application for leave to withdraw was made, I would then be asking Mr Exley how he wished to proceed. I proposed, subject to comments, that I would adjourn for a period of time to enable Mr Exley to prepare anything that he would like to say on the Crown sentencing submissions in the absence of counsel in his sentencing.

[8]                 On return to the Court, an application for leave to withdraw was made. I granted the application. Brief interaction was initiated by me on the prospect of stand- by counsel procedures being used, but that discussion was not concluded.

[9]                 The Court adjourned until 11.30 am. Then, on the basis mentioned and when the Court recommenced, I indicated that I did not see this as a situation in which a formal appointment for stand-by counsel was warranted. Ms Ord and Mr Pohiva indicated that they were available in the event that Mr Exley was to change his views on his representation. And they have so remained available in the event that that became Mr Exley’s wish. A communication was received at this time that Mr Exley did wish to represent himself but that he intended to remain silent.

[10]             When the Court recommenced at this time, Mr Exley, who was sitting again with his back to the camera in the AVL booth, removed a shirt and he had offensive words written on a shirt underneath. The Court was adjourned so that Corrections officers could deal with the situation.

[11]             Following an in-chambers discussion, which took into account the views of the victim, I determined that we would proceed in the event that, for whatever reason, those words did remain visible. The Court was then advised that the defendant had written the offensive words on his back also, directly on to his skin. It was determined that we would proceed. The Court was then advised that the defendant, who had been taken back to his cell at that stage during the adjournment, would be removing all of his clothes and that he would only come back into the AVL booth through the use of force. The hearing was adjourned at that point on the basis that it would not be in the interests of justice to proceed in circumstances such as those.

[12]             In a chambers hearing that followed, options were discussed. Counsel for the Crown helpfully referred the Court to two authorities. The first of them is R v Utatao which was a case in which Lang J had referred to the defendant having, the morning of that hearing. indicated firmly, both to his counsel and to security staff, that he was not prepared to leave his cell in the courthouse, and in which the Court referred to a written waiver having been signed by the defendant, making it clear that he did not to wish to attend the sentencing hearing. 1 The form was signed and dated. The Judge referred to s 123 of the Criminal Procedure Act, to which I have referred also, which does prohibit the Court from sentencing a offender for a category 2, 3 or 4 offence in his or her absence.

[13]The Court said this:

[4]     Upon reflection, I do not consider Mr Utatao is absent.  He is present in the Court precincts and, if necessary, I could have him brought by force to the courtroom. Having regard to the views he has expressed, however, I am not prepared to do that. I am prepared to accede to his wishes and sentence him in his absence from the courtroom, but in his presence within the court precincts. I will also direct that he remains in the Court precincts until such time as the written three strikes warning has been given to him, together with a copy of my sentencing remarks. He will therefore have notice of the three strikes warning. He will know his sentence and the reasons for it before he leaves the courthouse. I do not see how his interests are prejudiced in any way by that procedure being adopted.

[14]             I refer also to R v Edgerton, a decision of Duffy J, in 2020, in which similar circumstances arose.2 In that case also, the defendant was not prepared to leave his cell. In that case, as in the case of the decision of Lang J, a written waiver was provided to the Court by the defendant saying that he did not wish to attend his sentencing and that he consented to the sentencing going ahead in his absence. In the decision the Judge referred to s 123 and concluded, as Lang J concluded, that the defendant was not absent if he was within the Court precincts, on the basis that he could be brought to the courtroom by force and that he should remain in the Court precincts on that basis.

[15]The definition of “court” in the Criminal Procedure Act is:

a court presided over by a judicial officer with authority to exercise the court’s jurisdiction in relation to the matter

1      R v Utatao [2018] NZHC 2044.

2      R v Edgerton [2020] NZHC 1694.

I am satisfied that the AVL linkage with Mr Exley through the Courts (Remote Participation) Act 2010 is such that he is within the Court precincts – through technology rather than physically – on a basis that is sufficient.

[16]             Following discussion, I gave directions this morning for the sentencing hearing to proceed at 2.15 pm today on the following basis:

(a)That Mr Exley would be positioned by Corrections officers just outside the AVL booth at Rimutaka Prison so that he could hear what was said during the sentencing hearing.

(b)That the AVL system would be configured so that Mr Exley was able, if he chose, to hear what was being said in the courtroom but the microphone in the AVL booth would only be turned on when, following the Crown submissions, he was asked if he had submissions on sentencing.

(c)That the window between the AVL camera and the AVL booth would be partially obscured so that, in the event that Mr Exley did re-enter the booth, only his head would be visible. I add that, practically, as matters transpired, Mr Exley was during the sentencing in a place that was immediately adjacent to the AVL booth and was able to hear what was happening.

[17]             I am satisfied that, having regard to the authorities I have mentioned and in the particular circumstances as they present themselves here, Mr Exley’s interests are not prejudiced by this procedure being adopted. I observe that Thomas J, in R v Pikaahu, observed that s 123 is there for a defendant’s benefit.3 It is, she said, “designed to ensure that defendants have the opportunity to have input into the sentencing process”.4 That input has well been provided.

Radich J

Solicitors:

Crown Solicitor, Wellington for Crown

3      R v Pikaahu [2015] NZHC 2617.

4 At [14].