Dunn v R [2022] NZCA 574 (24 November 2022)

Last Updated: 28 November 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA223/2021 [2022] NZCA 574

	BETWEEN	DARRELL EDWARD JAMES DUNN Applicant
	AND	THE KING Respondent

Court:	Miller, Muir and Gendall JJ
Counsel:	M J Taylor-Cyphers for Applicant S K Barr for Respondent
Judgment: (On the papers)	24 November 2022 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to withdraw the notice of abandonment is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

• [1] On 10 November 2015 Mr Dunn killed Teina Wharawhara, a fellow homeless person, at Auckland. A jury found him guilty of manslaughter. On 26 October 2016 Palmer J sentenced him to a term of seven years, six months imprisonment.^[1]
• [2] The sentence calculation was: a starting point of six years, three months;^[2] an uplift of six months for his previous history of violent offending,^[3] and a further uplift of nine months because he was on parole, and in breach of parole conditions prohibiting use of alcohol and drugs, when he killed Mr Wharawhara.^[4] The Judge noted that Mr Dunn is of Ngāpuhi descent and that he claimed to experience remorse, but no credit was given for mitigating factors.^[5] An allowance for an element of self‑defence was taken into account in the starting point.^[6]
• [3] Mr Dunn appealed conviction and sentence. On the advice of senior counsel he abandoned the sentence appeal on 10 September 2019, before the hearing. His conviction appeal failed,^[7] as did an application for leave to appeal to the Supreme Court.^[8]
• [4] On 22 April 2021 Mr Dunn filed a sentence appeal. The Court has treated it as an application for leave to withdraw the 2019 abandonment.
• [5] Mr Dunn represented himself at the conviction appeal hearing but he had engaged with a number of counsel and had advice from standby counsel, Paul Dacre KC. He has not waived privilege in connection with the abandonment, but it is not in dispute that he acted on advice which extended to the issue he now wishes to raise. The decision to abandon was therefore deliberate and informed.^[9] So he must point to circumstances of an exceptional nature justifying departure from the principle of finality.^[10] That threshold may be met if he can point to a clear and material error of fact or law in the sentence.^[11]
• [6] The proposed appeal is motivated by the uplift for breach of parole. Mr Dunn has now otherwise served his sentence and is to be released on sentence expiry date in May 2023. His complaint, about which he feels very keenly, is that the uplift was unjustified.
• [7] He says that he had earlier been sentenced to two years’ imprisonment on assault charges, meaning he would be paroled automatically after 12 months.^[12] While serving that sentence he chose to plead guilty to a charge of stealing a bottle of vodka, and was sentenced, unexpectedly from his perspective, to a cumulative sentence of one month’s imprisonment. This had the effect of converting his existing sentence to one of two years’ and one month, meaning that it became a long-term sentence. He had to seek parole, which was denied. He says that he was eventually released at sentence expiry date, 29 September 2015. He argues that on release he was subject only to standard release conditions and the Parole Board lacked jurisdiction to impose the special condition that he not consume alcohol or drugs. That being so, Palmer J was wrong to add the nine-month uplift.
• [8] Ms Taylor-Cyphers is assigned counsel for Mr Dunn. She has filed submissions, the substance of which is that the overall sentence was stern having regard to the approach now taken to discounts. She has provided information about Mr Dunn’s background; his mother was very young, and died young, he did not know his father, and he was raised by grandparents.
• [9] Mr Dunn has also filed submissions in which he criticises Ms Taylor-Cyphers for delays in progressing his appeal, but we understand him to adopt her arguments (which are not inconsistent with his) while focusing primarily on his argument that he was on standard release conditions only and the Board acted without jurisdiction when imposing the special condition. He contends that the police knew he was drinking on the streets, as did his probation officer, but neither had done anything about it or told him he was in breach of conditions.
• [10] Mr Dunn’s point of law is not arguable. Mr Dunn was not technically on parole, but was subject to standard and special release conditions.^[13] The Parole Board was obliged under s 18 of the Parole Act 2002 to impose standard release conditions for a period of six months from statutory release date and might impose special release conditions for up to six months.
• [11] In the circumstances an uplift was unquestionably available to the Judge for offending that followed so soon on Mr Dunn’s release and was in breach of a special release condition. We do not accept that there is any material error of fact in the sentence.
• [12] That strictly disposes of the application. But we record that we are not persuaded that the effective sentence was out of range.
• [13] The application for leave to withdraw the notice of abandonment is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Dunn [2016] NZHC 2552.

^[2] At [26].

^[3] At [30].

^[4] At [33].

^[5] At [28] and [34].

^[6] At [21]–[22].

^[7] Dunn v R [2019] NZCA 608.

^[8] Dunn v R [2020] NZSC 58.

^[9] R v Cramp [2009] NZCA 90 at [21]–[26].

^[10] At [26].

^[11] Marteley v R [2021] NZCA 636 at [37].

^[12] Parole Act 2002, s 86.

^[13] Sections 29–29AA.