Westall v The Queen - [2021] NZCA 3440

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-464

[2021] NZHC 3440

BETWEEN
DALTYN NORMAN WESTALL

Appellant

AND

THE QUEEN

Respondent

Hearing: 14 December 2021

Appearances:

A S Bloem for the Appellant H J Bell for the Respondent

Judgment:

14 December 2021

ORAL JUDGMENT OF WYLIE J

Solicitors: Crown Solicitor, Auckland
Bloem & Associates, Auckland

WESTALL v R [2021] NZHC 3440 [14 December 2021]

Introduction

[1] The appellant, Daltyn Westall, appeals the sentence imposed on him by Judge Paul of two years six months’ imprisonment in relation to the following charges:1

(a)Injuring with intent to cause grievous bodily harm;

(b)Reckless driving causing injury;

(c)Reckless driving; and

(d)Failure to stop and ascertain injury.

[2] Mr Westall argues that the Judge erred by failing to give him sufficient discount for personal mitigating factors, including cultural factors, his rehabilitative efforts and his youth. He also argues that the guilty plea discount should have been 20 per cent and not the 15 per cent allowed and that the overall circumstances suggest that an end sentence of home detention was the more appropriate outcome.

[3] The Crown opposes the appeal and submits that the sentence was not manifestly excessive.

The offending

[4] On 10 March 2020, Mr Westall was driving a motor vehicle on Great North Road, Waterview, Auckland. An unidentified male associate was with him. So was his partner.

[5] The victim was also travelling along Great North Road. He was travelling in the same direction as Mr Westall. CCTV footage taken at the time shows that the road was very busy.

1 R v Westall [2021] NZDC 15307.

[6] Mr Westall was tail gating another vehicle, overtaking vehicles at speed, and making multiple lane changes. He suddenly changed lanes and impeded the victim who was driving in the same direction. Mr Westall then came to an unexplained stop in front of the victim’s car, requiring the victim to break heavily. Mr Westall then accelerated away at speed. The victim then changed lanes to continue on his way.

[7] Mr Westall then passed the victim, shouting and yelling abuse at him. He then changed into the victim’s lane, placing his vehicle in front of the victim’s car. They came to a stop at an intersection. Both got out of their vehicles. So did Mr Westall’s associate.

[8] Mr Westall and his associate threw punches at the victim, and chased him around Mr Westall’s car. They punched him to the side of the head and he collapsed to the ground, hitting his head on the road. Mr Westall and his associate continued to assault the victim once he was on the ground. Mr Westall was observed on CCTV footage stomping on the victim’s head while he was lying vulnerable and prone on the road.

[9] A member of the public tried to intervene, but not before Mr Westall had reversed his car, driving over the victim’s legs. Mr Westall then drove off erratically at speed.…

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 Westall v The Queen

Details

AGLC: Westall v The Queen [2021] NZCA 3440
Case: [2021] NZCA 3440
Decision Date: 14 December 2021

CaseChat Overview and Summary

Daltyn Norman Westall appeals the sentence imposed on him by Judge Paul of two years six months’ imprisonment, in relation to charges of injuring with intent to cause grievous bodily harm, reckless driving causing injury, reckless driving, and failure to stop and ascertain injury. The appeal focuses on the sentence imposed, arguing that the Judge failed to give sufficient discount for personal mitigating factors, including cultural factors, rehabilitative efforts, and his youth. Mr Westall also argues that the guilty plea discount should have been 20 per cent instead of 15 per cent, and that an end sentence of home detention was more appropriate.

The court considered the arguments presented by both parties and examined the legal principles governing sentencing. It noted that there was no challenge to the starting point adopted by the Judge, but observed that it was lenient considering the seriousness of the offending. The court then turned to the discounts, starting with the cultural report prepared under s 27 of the Sentencing Act 2002. The report detailed Mr Westall's experiences with violence growing up, his family's support, and his drug abuse. The court concluded that the Judge erred in looking for a direct causal link between Mr Westall's personal history and his offending, but it was not satisfied that the Judge erred in allowing only a 10 per cent discount for Mr Westall's upbringing and dislocation.

Regarding rehabilitative efforts and age, the court found that a discount of 15 per cent would have better reflected Mr Westall's youth and rehabilitative prospects. Finally, the court considered the guilty plea discount, which was reduced from 20 per cent to 15 per cent due to the disputed facts hearing. The court held that the Judge did not err in reducing the discount for the guilty pleas from the 20 per cent indicated in the sentence indication to 15 per cent at sentencing.

Taking into account the total discounts of 40 per cent from the starting point sentence, the court concluded that the difference between the end sentence imposed by the Judge and the sentence it would have imposed was nothing more than tinkering. The appeal was ultimately dismissed, and the sentence imposed by Judge Paul was upheld.

Orders