Skerten v Police - [2015] NZHC 2882

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000029 [2015] NZHC 2882

ERIC DELWYN SKERTEN

v

NEW ZEALAND POLICE

Hearing: 16 November 2015

Appearances:

No appearance for the Appellant
Richard Smith for the Crown

Judgment:

19 November 2015

JUDGMENT OF NATION J

Background

[1] On 2 February 2015, after a defended Judge alone hearing, Judge K J Phillips found Mr Skerten guilty of:

i. having in his possession an offensive weapon, namely a mallet, in circumstances that prima facie showed an intention to use it to commit an offence involving bodily injury;

ii. threatening to do grievous bodily harm to Matthew James Holmes;

iii. intentionally damaging a hammer the property of Matthew James

Holmes;

iv. failing to answer bail and to appear in Court as required;

SKERTEN v POLICE [2015] NZHC 2882 [19 November 2015]

v. driving a motor vehicle while his licence was suspended; and vi. threatening to kill Matthew James Holmes.

[2] The most serious alleged offending related to an incident on 25 August 2014. The Judge found Mr Skerten had gone to the home of his brother-in-law, Mr Holmes, with a sledgehammer in his right hand and a bag of tools in his left hand. Mr Holmes told Mr Skerten to leave. Mr Skerten was waving the hammer around in an aggressive manner. Mr Holmes described it as being about a metre long with a head. Mr Skerten also had a bottle of methylated spirits in his hand. Mr Skerten approached towards Mr Holmes and made threats to him that Mr Holmes was going to “burn”. Mr Skerten threw the bag of tools on the ground. He used the sledgehammer to smash hammers and other items which had spilled out from the bag when he threw it on the ground. Mr Skerten however claimed that the tools had been already broken before he took them to the address.

[3] The breach of bail charge related to his non-appearance in Court in Dunedin on 27 November 2014 after he had been released on bail on 14 October 2014.

[4] Mr Skerten’s licence was suspended on 12 December 2014. On 2 February

2015, he was driving the car in Balclutha.

[5] On 17 April 2015, Mr Skerten also pleaded guilty to a charge that on 9 March

2015 he had threatened to kill Mr Holmes. This offence occurred when Mr Skerten was speaking to Corrections officers on 9 March 2015 after he had been remanded in custody after a breach of bail. Mr Skerten said to the Corrections officers that Mr Holmes better watch out when he got out. Mr Skerten said “I’ll burn him down. When I get out, I’ll do what I should have done years ago. He’d better have left the country or I will kill him.”

[6] On 17 April 2015, Judge Phillips sentenced Mr Skerten to 12 months’ imprisonment in relation to the offending that occurred on 25 August 2014, four months’ imprisonment cumulative in respect of the threatening to kill offence committed…

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: [2015] NZHC 2882
Decision Date: 19 November 2015

CaseChat Overview and Summary

Eric Delwyn Skerten appealed against his convictions and sentences for possession of an offensive weapon, threatening to do grievous bodily harm, damaging property, failing to answer bail, driving while disqualified, and threatening to kill. The High Court of New Zealand, Dunedin Registry, heard the appeal on 16 November 2015. Skerten's primary grounds for appeal were inadequate legal representation, failure to produce evidence, and a claim of mental impairment at the time of his police interview. The Crown responded with detailed submissions and an affidavit from Skerten's trial counsel, who refuted the claims of inadequate representation and explained the strategic decisions made during the trial.

The court considered whether there was a miscarriage of justice, focusing on the sufficiency of the evidence and the reasonableness of the Judge's findings. The court found that there was ample evidence to support the convictions and that Skerten's claims did not undermine the Judge's decision. Regarding the sentence, the court examined the Judge's sentencing process, noting that the sentence was not manifestly excessive given the seriousness of the offences and Skerten's criminal history. The court concluded that Skerten's appeal had no merit and declined his application for leave to appeal out of time.

The Court found Skerten's application for leave to appeal as abandoned for want of prosecution, and his application for leave to appeal his convictions and sentences was declined. The decision emphasised the high risk of reoffending and harm to others, based on Skerten's criminal record and the nature of the offences committed.

Orders