Scanlan v Police - [2021] NZHC 2071

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-011140

[2021] NZHC 2071

BETWEEN
DEAN SCANLAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 August 2021

Counsel:

I Stewart for Appellant

A Al-Janabi for Respondent

Judgment:

11 August 2021

JUDGMENT OF WHATA J

This judgment was delivered by me on 11 August 2021 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Kayes Fletcher Walker, Manukau

SCANLAN v POLICE [2021] NZHC 2071 [11 August 2021]

[1] Mr Scanlan pleaded guilty to one charge of injuring with intent to injure1 and was sentenced to seven months and two weeks’ home detention.2 He now appeals this sentence as manifestly excessive and wrong insofar as a sentence of community detention and supervision should have been imposed.

Offending

[2] Mr Scanlan was charged and sentenced alongside a co-defendant, Caleb Tema. The Crown summary of facts outlines the offending as follows. At about 1.00 am on Saturday, 19 October 2019, Mr Scanlan and Mr Tema were sitting in a car parked in a residential driveway in Flatbush, along with two others. The group was playing loud music from the car.

[3] The complainant, unknown to the defendants, crossed the road and told them to turn the music down, leaning into the car and shaking Mr Tema by the neck and chest, yelling. Mr Tema got out of the car and began swinging punches towards the complainant’s head. The complainant tried to punch back. Mr Scanlan then got out of the car. He punched the complainant several times to the head and also kicked him a couple of times to the legs. The complainant was knocked to the ground, at which point Mr Scanlan punched him a couple of times. The complainant was repeatedly kicked, but it is unclear who by. The complainant managed to get up. Mr Tema attempted to continue punching him, but the complainant was able to block the punches.

[4] Mr Tema picked up a wooden stake supporting a nearby tree and struck the complainant in the head, causing a large open wound. Mr Tema attempted to strike him again, but the complainant blocked it. Mr Scanlan then pulled Mr Tema away and tried to leave. As they drove away, Mr Tema threw three bottles at the complainant. They did not hit him, but Mr Tema yelled that he would come back and kill the complainant.

1 Crimes Act 1961, s 189(2). Maximum penalty five years’ imprisonment.
2 R v Scanlan [2021] NZDC 8236 [District Court decision].

[5] The complainant suffered fractures to his cheekbone, nose and eye socket, and a large laceration to his head where he was struck with the stake, opening an artery. He also suffered multiple rib fractures, and bruising and pain in several areas.

[6] Mr Scanlan was charged with injuring with intent to injure and, relevantly, Mr Tema was charged with wounding with intent to injure, which carries a…

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 Scanlan v Police

Details

AGLC: Scanlan v Police [2021] NZHC 2071
Case: [2021] NZHC 2071
Decision Date: 11 August 2021

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, Dean Scanlan appealed against his sentence for injuring with intent to injure, contending that the sentence of seven months and two weeks’ home detention was manifestly excessive. The court heard submissions from Ms Stewart for the appellant and Ms Al-Janabi for the respondent. The appeal centered on the severity of the sentence imposed on Scanlan, particularly in comparison to the sentence given to his co-defendant, Caleb Tema, who was charged with the more serious offence of wounding with intent to injure.
The primary legal issue was whether the District Court judge erred in sentencing Scanlan, particularly in relation to the discount for personal circumstances and the appropriateness of a non-custodial sentence. Ms Stewart argued that the judge had misapplied the starting point for sentencing, given that Scanlan was charged with injuring with intent to injure, not wounding with intent to injure. She further contended that the judge had inadequately considered Scanlan’s lesser role, youth, previous good character, and remorse, which warranted a greater discount. Scanlan’s counsel argued that a sentence of community detention and supervision would better align with the purposes and principles of sentencing, particularly given Scanlan’s capacity for rehabilitation.
The High Court found that the District Court judge had appropriately considered the starting point for sentencing, which was within the correct range. The court acknowledged that a greater discount for personal circumstances could have been applied, potentially reducing the notional sentence of imprisonment to around 12 months. However, the court held that the imposed sentence of home detention was not manifestly excessive given the seriousness of the offending. The court also found that a sentence of home detention adequately served the purposes and principles of sentencing, including deterrence and rehabilitation, and was appropriate given Scanlan’s strong rehabilitative prospects. Therefore, the appeal was dismissed.

Orders