Dempsey v R [2023] NZCA 461 (21 September 2023)

Last Updated: 25 September 2023

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

CA441/2022 [2023] NZCA 461

	BETWEEN	RONAYNE JOSEPH DEMPSEY Applicant
	AND	THE KING Respondent

Hearing:	28 August 2023
Court:	Miller, Ellis and van Bohemen JJ
Counsel:	M Zintl for Applicant M J Lillico for Respondent
Judgment:	21 September 2023 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

• [1] Mr Dempsey seeks an extension of time to appeal against the minimum period of 12 years’ imprisonment imposed in his sentence of life imprisonment for the murder of Bruce Mortimer on 4 July 2015.^[1] He says that through counsel error the trial Judge, Clifford J, was not made aware of extensive personal mitigating factors which would have reduced the minimum period of imprisonment (MPI) by at least 12 to 18 months.
• [2] The sentence was passed on 13 December 2016 and the appeal was filed on 26 August 2022, so Mr Dempsey is out of time by five years, six months and 26 days. His explanation for delay is that trial counsel, John Sandston, did not advise him about a possible appeal against sentence or advise him of time limits on an appeal. In support of his application for extension of time he has tendered a report prepared under s 27 of the Sentencing Act 2002 and he has provided copies of specialist reports prepared during his childhood and adolescence.

The offending

• [3] Mr Dempsey and Mr Mortimer both lived in a residential complex, Franklyn Village, in Nelson. Each resident rented a separate room.
• [4] The background to the attack on Mr Mortimer was a dispute over morphine pills which he accused Mr Dempsey of stealing. Mr Dempsey claimed that in return for him helping to recover the pills Mr Mortimer agreed to speak to an acquaintance with whom Mr Dempsey was having difficulties. Mr Dempsey thought that Mr Mortimer had not kept his side of the bargain. Clifford J recounted what Mr Dempsey did about it:

[18] In the days leading up to Friday 3 July two people had heard Mr Dempsey say he was going to stab or smash Mr Mortimer in relation to the morphine pills.

[19] Several of your acquaintances that evening described the events. Two different groups of people had been partying in Franklyn Village. They came together, they including you, in room 214, along the corridor from your and Mr Mortimer's rooms. A number of those people said they heard you saying the guy down the hall had $200, that you wanted that money to buy alcohol and that you were going to jump him for it or stab him to get the money.

[20] Eventually, you went to Mr Mortimer's room. Mr Brunsell followed you. You banged and knocked loudly on the door. Witnesses heard you saying that Mr Mortimer had ripped you off. Mr Mortimer opened his door and you pushed your way in. A fight started there. It continued in the hallway. It was in the hallway that you punched and kicked Mr Mortimer to the body and the head causing the fatal injuries. That violence stopped when Mr Burgess, a neighbour, stood up to protect Mr Mortimer from you.

• [5] Mr Mortimer suffered a brain injury from which he succumbed in hospital. Mr Dempsey initially tried to downplay the extent of his violence, but at trial he accepted that he was guilty of manslaughter.^[2] The jury found him guilty of murder.

The sentencing

• [6] The central issue at sentencing was whether s 104 of the Sentencing Act was engaged, meaning that Mr Dempsey must be sentenced to an MPI of 17 years or more unless that was manifestly unjust. The Crown invoked s 104, contending that the murder involved entry into a dwelling place and was committed in the course of another serious offence, an attempted aggravated robbery.
• [7] Mr Sandston’s sentencing submissions naturally focused on s 104. He was aware of Mr Dempsey’s background of childhood abuse, placements at Child Youth and Family homes, and mental health and intellectual difficulties, and he had seen reports from or prepared for the (then) Child Youth and Family Services and Oranga Tamariki (we will call this collectively the CYFS material), but he did not discuss that material in his written submissions and, understandably, could not now say in evidence before us whether he had mentioned it in his oral submissions.
• [8] After recounting the facts, the Judge drew attention to the pre-sentence report, which noted Mr Dempsey’s long history of unemployment, alcohol and drug abuse, and suicide attempts.^[3] He noted well-established difficulties with anger management.^[4] He did not refer to any of the CYFS material about Mr Dempsey’s background.
• [9] The Judge accepted that Mr Dempsey had pushed his way into Mr Mortimer’s room, which was a private space, and that the assault began there, but he was not persuaded that the room was a dwelling place, as that term is used in s 104.^[5] He accepted that there was an attempt to rob, which is a serious offence, but that offence was not completed.^[6] Concluding that the law was a little unclear, the Judge decided that s 104 did not apply. He added that had he decided otherwise he would have found it manifestly unjust to impose a 17-year MPI.^[7]
• [10] The Judge’s reasons for adopting a 12-year MPI are very brief. He concluded that this was not the most serious of murders, pointing to the absence of aggravating features, such as extended or repeated violence, which often characterise the most serious cases.^[8] He accepted that there was a degree of callousness and brutality.^[9] He concluded that a 12-year MPI was needed to meet the sentencing purposes of accountability, deterrence and denunciation.^[10] It will be seen that his reasons related to sentencing purposes and features of the offending, not personal mitigating factors.

The appeal

• [11] Mr Dempsey and Mr Sandston filed affidavits and Mr Sandston was cross‑examined before us. Mr Zintl, for Mr Dempsey, tendered a report under s 27 of the Sentencing Act and the CYFS material, and contended that had the information in these documents been before the Judge the MPI would have been between 10 years and six months to 11 years imprisonment. Counsel acknowledged that the delay in appealing is very long but he contended that Mr Dempsey was not given adequate advice about appealing. Mr Dempsey himself deposed that he was not given any advice of that kind. Mr Zintl acknowledged that the societal interest in finality must be balanced against the interests of Mr Dempsey, but he contended that the merits of the appeal justify leave in this case.
• [12] For the Crown, Mr Lillico contended that the merits are a relevant but not necessarily decisive consideration. The explanation for the delay is that Mr Dempsey had been looking at a 17-year MPI and was happy with his sentence; indeed, he acknowledges that. The argument that a s 27 report ought to have been before the Judge is “anachronistic”. Mr Lillico referred us to a 2012 article by Judge Stephen O’Driscoll in which the Judge described s 27 as under-utilised^[11] and submitted that it remained “somewhat dormant” until the 2018 High Court judgment in Solicitor‑General v Heta.^[12] A survey of High Court and Court of Appeal sentencing decisions from 2016 turns up no cases in which s 27 was cited. Counsel submitted that a subsequent change of practice with respect to s 27, in the form of the now‑familiar written reports, cannot outweigh the interest in finality in this case. The Mortimer family (some of whose representative appeared at the hearing before us) were entitled to believe the case was at an end. Nor does the s 27 report make a difference in this case; it does not sit well with the premeditated nature of the offending. The Judge’s approach was lenient, having regard to the facts that the offending began in Mr Mortimer’s room and was carried out in the context of an expressed intention to rob.

Delay is inadequately explained

• [13] Someone who has waited more than five years to bring an appeal should offer a very good explanation for their delay.^[13] The onus is on that person to displace the presumption of finality that underpins the statutory time limit for bringing an appeal against conviction or sentence.^[14] The longer the delay the more likely it is that the public interest, and that of other participants, in finality will outweigh the merits of the appeal.
• [14] The evidence about why Mr Dempsey waited so long is unsatisfactory.
• [15] We accept that to some extent the delay is explained by Mr Sandston’s advice. We reject Mr Dempsey’s evidence that nothing was said about a right of appeal. Rather, counsel’s advice, recorded in a letter after sentencing, was that there were no grounds for an appeal. He took the view that Mr Dempsey had done well to escape a 17‑year MPI. We infer that Mr Dempsey accepted that advice initially. Like Mr Sandston, he was relieved by the sentencing outcome.
• [16] But sometime between December 2016 and August 2022 Mr Dempsey changed his mind. He deposes that it was only after getting in touch with Mr Zintl, to whom he was referred by the Legal Services Agency, that he understood he could appeal against his sentence. He does not explain why or when he approached the Legal Services Agency. All that can be said is that at some point during the period of more than five years he decided to inquire into whether he had grounds for an appeal. Why he did that we do not know.

The personal mitigating information is not new

• [17] It is plausible that, as the Crown suggests, Mr Dempsey wanted to take advantage of a s 27 report, a relatively recent development in sentencing practice. If so, that consideration would count against an extension of time for reasons explained in Cheung v R.^[15]
• [18] However, we do not think that is what is really happening in this case.
• [19] The writer of the s 27 report, Taria Mason, is a very experienced social worker. As is now routine with such reports, she does not speak from personal knowledge of Mr Dempsey or his family circumstances or his particular community. Rather, she has written a report that collates third-party information (although she does go on to offer an opinion about causal connection between background and offending, to which we return below). The information is drawn from the CYFS material. It was available at sentencing and could have been tendered through counsel. There was no need to invoke s 27. We observe that Clifford J referred to similar material when sentencing a co-offender (for a lesser offence) at the same time.^[16] In Mr Dempsey’s case, the pre‑sentence report referred to a propensity for violence, impulsivity and poor decision-making skills but did not explain how he came to have these characteristics.
• [20] As noted earlier, Mr Sandston had read at least some of the CYFS material. While he cannot recall whether he addressed it orally, the absence of any reference to it in his written submissions and the Judge’s sentencing notes suggest he did not do so. We think counsel was right to focus on the question whether the offending engaged s 104 of the Sentencing Act. The risk of a 17-year MPI was very real. However, he does not appear to have focused on the length of the MPI should the Judge find that s 104 was not engaged or, if it was, that a 17-year MPI would be manifestly unjust. We accept that this was an omission.

The CYFS material

• [21] The CYFS material points to a background of abuse and deprivation throughout Mr Dempsey’s childhood and adolescence. He was removed from the care of his parents at the age of five, following findings of abuse and neglect, and placed in a succession of foster homes, where he suffered further abuse. Specialist assessments as a child found him developmentally delayed. He displayed features of attention deficit disorder. A psychological report prepared at the age of six opined that he had had very extensive exposure to physical violence and aggressive verbalisation in the family home and this was reflected in his own aggressive behaviour.

Would the CYFS material have reduced the MPI materially?

• [22] We accept Mr Lillico’s submission that the aggravating factors of the offending which put Mr Dempsey at risk of a 17-year MPI were present to a significant degree and had to be reflected in the sentence. Counsel drew attention to R v Pahau, in which s 104(1)(c) was applied where the victim was stabbed as he was followed onto the deck of his home and attempted to enter it through the window.^[17] Dismissing the appeal, this Court held it was sufficient that the victim, while not “in” the house, was trying to avail himself of the sanctuary that it offered.^[18] In this case the attack began in Mr Mortimer’s room, which was his bedroom and place of sanctuary. And in preceding days two people had heard Mr Dempsey say he was going to stab or smash Mr Mortimer in relation to the morphine pills. These features of the offending indicate that an MPI significantly in excess of the statutory minimum of 10 years was required in this case to meet the statutory purposes of sections 103(2) and 104 of the Sentencing Act.^[19]
• [23] As noted, Ms Mason has expressed the opinion that Mr Dempsey’s background contributed to the offence. In her view it meant he was unable to deal with the breakdown of his relationship with the mother of his son, whom she describes as the one love of his life besides his children. She asserts that he turned to alcohol to silence the pain and loss but his anger was bubbling under the surface and exploded the night of the offending.
• [24] This opinion presumably reflects Mr Dempsey’s instructions to Ms Mason, but it does not accord with the facts on which he was sentenced. The offending was the result of a premeditated plan to rob Mr Mortimer of money. We accept that his personal characteristics and background left him with a propensity for violence and poor decision-making skills. However, the causal connection to this particular offending is not strong.
• [25] For these reasons we are not persuaded that the CYFS material would have affected the MPI, still less that it would make the sentence manifestly excessive.

Disposition

• [26] We have accepted that the CYFS material ought to have been before the sentencing Judge, but not that it would have made a difference to the 12-year MPI. We have also found that the very long delay in bringing the appeal has not been satisfactorily explained. The interests of justice do not require an extension of time.
• [27] The application for an extension of time to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Dempsey [2016] NZHC 3056 at [49] [sentencing notes].

^[2] At [16].

^[3] At [24]–[25].

^[4] At [26].

^[5] At [35].

^[6] At [38]–[40].

^[7] At [47].

^[8] At [47].

^[9] At [45].

^[10] At [43] and [46].

^[11] Stephen O’Driscoll “A powerful mitigating tool?” (2012) NZLJ 358 at 358.

^[12] Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.

^[13]` Lee v R [2006] NZCA 60; [2006] 3 NZLR 42 (CA) at [115].

^[14] R v Knight [1998] 1 NZLR 583 (CA) at 588–589.

^[15] Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [26]–[37] and [50]–[53].

^[16] Sentencing notes, above n 1, at [70]–[73].

^[17] R v Pahau HC New Plymouth CRI-2008-043-4555, 16 August 2010 at [31].

^[18] Pahau v R [2011] NZCA 147 at [74]. Leave to appeal to the Supreme Court on the point was declined: Pahau v R [2011] NZSC 88 at [4].

^[19] See further Frost v R [2023] NZCA 294 at [41].