Skeens v Police - [2022] NZHC 875

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2022-488-000010

[2022] NZHC 875

BETWEEN
DAMAIN JOSEPH SKEENS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 April 2022

Appearances:

D Watkins for the Appellant A Tupuola for the Respondent

Judgment:

29 April 2022

JUDGMENT OF WALKER J

This judgment was delivered by me on 29 April 2022 at 12.30 pm Registrar/Deputy Registrar

SKEENS v NEW ZEALAND POLICE [2022] NZHC 875 [29 April 2022]

Introduction

[1] Damain Skeens appeals his sentence of nine months’ imprisonment for unlawfully taking a motor vehicle (conversion) 1 and being unlawfully in a building.2 The sentence was imposed by Judge GL Davis in the Whangārei District Court on 21 January 2022 following guilty pleas. 3

[2] Mr Skeens was remanded in custody for an initial period after arrest and a further period from either 11 or 17 January 2022 to 21 January 2022. The combined period of custodial remand and sentence means that as at today’s date, Mr Skeens will have approximately 3 weeks before eligibility for release. That calculation assumes that he has successfully served one half of his sentence. It is regrettable that, practically speaking, this appeal may have little practical utility.

[3] An urgent hearing date for this appeal was originally set for 10 March 2022. It had to be adjourned due to difficulties with legal aid assignment. The Court invited an application for bail pending appeal but I understand that was unable to be advanced due to lack of a suitable address.

The offending

[4]The charges arise from two incidents.

Theft of car

[5] On 21 July 2021, Mr Skeens texted the victim asking if he could come over. The two were known to each other as their parents used to associate when they were younger. They had not seen each other for a considerable amount of time. The victim agreed for him to come over. Mr Skeens and the co-defendant, his partner, Ms Murray turned up at the victim’s house. They asked if they could stay the night as they had nowhere else to go. The victim agreed.

1      Crimes Act 1961, s 226(1) carrying a maximum penalty of 7 years’ imprisonment.
2      Summary Offences Act 1981, s 29(1)(a) carrying a maximum penalty of 3 months’ imprisonment or a fine not exceeding $2,000.
3      New Zealand Police v Skeens [2022] NZDC 908.

[6] The following day, Mr Skeens asked the victim if they could go for a drive to Dargaville. He said he would give the victim some money for gas and asked to drive his car. The victim agreed. Mr Skeens drove Ms Murray and the victim to a petrol station in Whangārei but did not drive onto the forecourt. He gave the victim a plastic petrol container and asked if he would put $10 worth of petrol in it for him. The victim walked over to the forecourt and filled up the petrol container. From there, he could just see where the…

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.

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Details

Case: [2022] NZHC 875
Decision Date: 29 April 2022

CaseChat Overview and Summary

Damain Joseph Skeens appealed his sentence for unlawfully taking a motor vehicle and being unlawfully in a building, arguing that it was manifestly excessive. The sentencing was conducted by Judge GL Davis in the Whangārei District Court, which imposed a nine-month imprisonment sentence following Skeens' guilty pleas. The court had to decide whether the sentence was indeed manifestly excessive and if home detention should have been considered. Skeens argued that the sentence was excessive and that home detention should have been considered, while the police maintained that the sentence was within the appropriate range. The court found that the starting point and final sentence were within the appropriate range, but the sentencing judge failed to consider home detention. However, given Skeens' history of persistent disregard for court-imposed sanctions, the court concluded that commuting the sentence to home detention would not have fulfilled the rehabilitative purpose of such a sentence. As a result, the appeal was dismissed.

The court's decision was based on the appropriate range of sentencing for the charges, the totality principle, and the purposes of sentencing. The court found that the starting point and final sentence were within the appropriate range, and there was no error in the term of imprisonment imposed. The court also considered the possibility of home detention, but concluded that the relevant factors weighed heavily against commuting the sentence to home detention, given Skeens' history of persistent disregard for court-imposed sanctions. The court found that the rehabilitative purpose of a sentence of home detention would not have been fulfilled in this case. As a result, the appeal was dismissed, and the original sentence remains in place.

Orders