The Queen v Dynes

[2008] NZCA 387

IN THE COURT OF APPEAL OF NEW ZEALAND

CA225/2008
[2008] NZCA 387

THE QUEEN

v

GRAEME DYNES

Hearing:23 September 2008

Court:Glazebrook, Rodney Hansen and Ronald Young JJ

Counsel:G Dynes in Person

N P Chisnall for Crown

Judgment:25 September 2008 at 4.00 pm

JUDGMENT OF THE COURT

A        The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

[1]       On the morning of his trial at Timaru the appellant pleaded guilty to one count of being a male he assaulted a female (section 194(b) Crimes Act 1961).  The Crown offered no evidence on a second count of threatening to do grievous bodily harm to the same complainant.

[2]       Mr Dynes was sentenced that day to 120 hours community work and 9 months supervision.  He now appeals against his conviction alleging that he had a defence to the charge and that he pleaded guilty only because he was told the Judge would impose a good behaviour bond and there would be no conviction.

Background facts

[3]       The summary of facts alleged that when the complainant went to the appellant’s address to speak to him he pushed her, grabbed her by the chin and then said he was going to grab his dog chain and hang the complainant by it.

[4]       The appellant accepted he had grabbed the complainant on the chin but denied threatening her with the dog chain.  He said the complainant was a trespasser and he was removing her from his property.

[5]       On morning of the trial crown and defence counsel discussed the case.  We have an affidavit from trial crown counsel, which describes an arrangement between them approved of by Mr Dynes.  Mr Dynes had Rule 12A of the Court of Appeal (Criminal) Rules 2001 (relating to a complaint against trial counsel) drawn to his attention before the hearing of this appeal by this Court.  He chose not to waive privilege, nor has he filed any affidavit from himself or others describing the circumstances under which he came to enter his plea of guilty.

Discussion

[6]       Given this is an appeal against conviction where the appellant pleaded guilty, the well establish test enunciated in R v Le Page [2005] 2 NZLR 845 applies. There the Court said:

[16]     [It] is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty.  An appellant must show that a miscarriage of justice will result if his conviction is not overturned.  Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.  These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.

[7]       We are satisfied there are no exceptional circumstances in this case which establish a miscarriage of justice will occur if the conviction is not set aside.

[8]       The arrangement between counsel, which was put to Mr Dynes, was that the Crown would offer no evidence on the threatening charge as long as the appellant pleaded guilty to the assault charge and the summary of facts remained unaltered.  Part of the arrangement was that the Crown would not seek imprisonment at sentencing.

[9]       There is nothing to support the suggestion that trial counsel told the appellant, as he claimed, that the Judge had said he would give the appellant a “good behaviour bond and no conviction” prior to the appellant pleading guilty.  Indeed, this claim by the appellant changed somewhat in oral submissions before us to a promise of a 6 month suspended sentence and a good behaviour bond.

[10]     After the appellant’s plea of guilty he was stood down for the preparation of a report from Community Probation.  The contents of this report record that Mr Dynes was assessed as suitable for community work and that he consented to its imposition.  This consent is consistent with the transcript record of trial counsel’s submissions at sentencing where he urged the Judge to impose a modest period of community work.  This contradicts Mr Dynes claim that he was promised a lesser sentence.

[11]     There is no evidence of any inadequate legal advice surrounding Mr Dynes plea of guilty.  Indeed the plea arrangement could have been seen as advantageous to Mr Dynes given the serious charge of threatening to cause grievous bodily harm was dismissed.  The evidence points to the only concession as to sentence being the Crowns acceptance it would not seek imprisonment.  The evidence also points to the appellant and his counsel accepting community work was the appropriate sentence for this offending. 

[12]     The appellant has not established that there are any exceptional circumstances, such that a miscarriage of justice will result if the conviction is not overturned.  The appeal will be dismissed.

Solicitors:

Crown Law Office, Wellington