The Queen v Dolman - [2009] NZCA 302

IN THE COURT OF APPEAL OF NEW ZEALAND
CA13/2009
[2009] NZCA 302
THE QUEEN
v
JESSE DOLMAN
Hearing:8 July 2009

Court:Ellen France, Randerson and Miller JJ
Counsel:P M Keegan for Appellant

K A L Bicknell for Crown

Judgment:15 July 2009 at 2.30 pm

JUDGMENT OF THE COURT

The application for extension of time to appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
INTRODUCTION
[1]        This is an application for an extension of time to appeal against a sentence of 12 years imprisonment imposed on two charges of causing grievous bodily harm with intent to do so.
[2]        The charges concern a group confrontation involving two victims, Brendan Hareb and Duncan Transom. Both were wounded in vicious attacks to the head, Mr Hareb being left severely disabled and dependent. The appellant pleaded guilty to the charge involving Mr Transom at the end of the Crown case at trial, and the jury found him guilty on the other charge.
[3]        Cooper J adopted a starting point of nine years for the attack on Mr Hareb, reasoning that four of the aggravating factors identified in R v Taueki [2005] 3 NZLR 372 (CA) were present. The starting point took into account an element of provocation and self-defence. (The victims had responded aggressively to the offenders’ wanton destruction of property.) He added two years for the attack on Mr Transom, and a further year for the appellant’s previous convictions. No credit was given for remorse and the guilty plea.
[4]        There are two appeal points: credit ought to have been given for the guilty plea; and the starting point for the attack on Mr Hareb was too high, for only two aggravating factors (serious injury and attacking the head) were present.
The application for an extension of time
[5]        The appellant was sentenced on 8 October 2007 and did not file his notice of appeal until 12 January 2009, a delay of 15 months. An extension of time is opposed, the Crown contending that the interests of justice favour finality where the merits are weak and there is no sufficient reason for delay.
[6]        The delay is addressed in an affidavit of the appellant and the submissions of Mr Keegan, who has acted throughout. Mr Keegan had counselled the appellant to accept his sentence, pointing out that no minimum period was imposed, and the appellant was initially disposed to do so. On reflection, he has decided that the sentence took insufficient account of provocation and self-defence. He instructed counsel to appeal in September 2008, but Mr Keegan delayed until October and then used the wrong form. The rest of the delay is attributable to counsel’s trial commitments and some delays in having the appellant sign the fresh notice of appeal.
[7]        A direction was made that the application for leave should be argued first, but when it came before this Court on 14 May 2009, we took the view that the leave application depended on the merits. We granted Mr…

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 The Queen v Dolman

Details

AGLC: The Queen v Dolman [2009] NZCA 302
Case: [2009] NZCA 302
Decision Date: 15 July 2009

CaseChat Overview and Summary

Jesse Dolman appeals against his sentence of 12 years imprisonment imposed for two charges of causing grievous bodily harm with intent to do so. The appellant pleaded guilty to the charge involving Duncan Transom at the end of the Crown case at trial, and the jury found him guilty on the other charge. The appellant contends that credit ought to have been given for the guilty plea and that the starting point for the attack on Brendan Hareb was too high. The Court of Appeal dismissed the application for an extension of time to appeal. The appellant was sentenced on 8 October 2007 and did not file his notice of appeal until 12 January 2009, a delay of 15 months. The delay is addressed in an affidavit of the appellant and the submissions of Mr Keegan, who has acted throughout. The Court of Appeal found that the delay was substantial. That part of it attributable to counsel’s failure to action instructions is excusable, but it is not generally a sufficient reason for delay that the prisoner has decided after long reflection that the sentence was unjust. Accordingly, the question is whether the merits of the proposed appeal outweigh the interests of the public and the victims in finality. The Court of Appeal found that the appeal has no merit, and in those circumstances the application for an extension of time to appeal is declined.

Orders