Dunn v Police [2014] NZHC 3334 (19 December 2014)

Last Updated: 16 February 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000353 [2014] NZHC 3334

BETWEEN	DARRELL DUNN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	18 December 2014
Appearances:	M Wharepouri for Appellant M N H Whittington and R Gibson for Respondent
Judgment:	19 December 2014

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 19 December 2014 at 10.00 am, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Meredith Connell, Auckland

Copy to: M Wharepouri, Auckland

DUNN v NEW ZEALAND POLICE [2014] NZHC 3334 [19 December 2014]

Introduction

[1] On 20 August 2014 Darrell Dunn, together with another co-accused, entered a guilty plea to an amended charge of theft. The charge related to theft of alcohol from Liquor Plaza in Hobson Street in Auckland City. Judge N R Dawson sentenced him on the same date. At the time Mr Dunn was already serving a term of imprisonment. The Judge convicted him and sentenced him to one month’s imprisonment cumulative on the existing sentence. The record discloses that Mr Dunn had Ms D Bell in support as Amicus Curiae.

Application for leave

[2] Mr Dunn filed an appeal against sentence. Although Mr Dunn had apparently completed his notice of appeal on 30 September 2014 the notice of appeal was not received in this Court until 9 October 2014.

[3] The appeal is out of time. Mr Dunn seeks leave to appeal out of time. The police have not raised any formal opposition to that application. Leave is granted to appeal out of time.

Process in this Court

[4] When the appeal was before the Court on 5 December, Mr Wharepouri appeared noting that he had just been assigned. He had made a brief inquiry of the amicus but was yet to hear back. He was going to discuss the case further with Mr Dunn and advise the position. On that basis Thomas J adjourned the appeal to be called on 15 December 2014.

[5] When the appeal was next called on 15 December 2014 Mr Wharepouri advised the Court he did not feel in a position to pursue the representation of Mr Dunn any further. However, his grant of legal aid was subsequently reinstated and Mr Wharepouri has filed submissions and appeared to advance the appeal on Mr Dunn’s behalf.

Grounds of appeal

[6] Mr Wharepouri confirmed the appeal is advanced against sentence only. It is restricted to two grounds:

(a) first, that at the time Mr Dunn pleaded guilty and was sentenced, he was not legally represented so that s 30(1) of the Sentencing Act 2002 was breached;

(b) second, that the District Court Judge failed to give consideration to the effect the one month cumulative sentence would have on Mr Dunn’s current sentence, making it manifestly excessive.

The requirement for representation under s 30

[7] The Supreme Court considered the application of s 30 in Condon v R.¹

Counsel assigned on legal aid to Mr Condon had withdrawn one day prior to trial. The trial commenced the next day before a jury. Mr Condon represented himself. Guilty verdicts were returned the next day. Mr Condon had not endeavoured to obtain the appointment of another counsel nor had the Court suggested he do so. The Supreme Court allowed Mr Condon’s appeal against conviction. The Court concluded that Mr Condon was not legally represented at trial, and the District Court Judge could not have been satisfied the circumstances of s 30(2) applied so that s 30(1) was engaged. As Mr Condon was not legally represented at trial when he was subject to conviction, his sentence of imprisonment was imposed in breach of s 30(1) of the Sentencing Act.

[8] In coming to that conclusion the Supreme Court discussed the Court of

Appeal’s previous decision of R v Long, and Parkhill v Ministry of Transport.²

[9] In R v Long the appellant had been advised by a solicitor to plead guilty to burglary offences. The solicitor was not present in the Court but a duty solicitor

_{spoke with Mr Long and informed the Court that he had been advised to plead guilty.}

¹ _{Condon v R [2006] NZSC 62.}

2. R v Long [1977] 1 NZLR 169 (CA); and Parkhill v Ministry of Transport [1991] NZCA 180; [1992] 1 NZLR 555 (CA).

Cooke and Woodhouse JJ considered that the duty solicitor had not been representing Mr Long in Court prior to his guilty plea so that the Court had lacked jurisdiction to impose the sentence of imprisonment. As Woodhouse J noted:³

The duty solicitor was not asked for advice, he was given no information which would have permitted it and he offered none. Nor was he requested to represent the appellant, either by appellant himself, or by the solicitor already instructed.

Richmond P, however, was of the view there had been legal representation of Mr

Long in Court by the duty solicitor.

[10] In Parkhill v Ministry of Transport Mr Parkhill had been declined legal aid. He had then pleaded guilty to repeat drink driving charges and was sentenced to imprisonment for six months. In dismissing the appeal at first instance Tipping J concluded that, once Mr Parkhill had been refused legal aid, he had been deemed capable of engaging counsel privately and had, in terms of the deeming provision in the legislation, failed to do so. The Judge considered that the expression “legal representation” denoted representation in Court and did not include advice or assistance out of Court.

[11] The Court of Appeal dismissed Mr Parkhill’s appeal for three reasons:

(a) first, that as he had completed his sentence the issue was academic;

(b) second, the available factual material was insufficient to determine whether there had been compliance with the requirement of the relevant section; and

(c) thirdly, the Court did not agree with Tipping J that legal representation was limited to appearances by counsel or a solicitor in Court.

[12] In Condon the Supreme Court disagreed with the Court of Appeal’s

interpretation of legal representation in Parkhill. The Supreme Court confirmed that for the purposes of s 30 legal representation means representation in Court. The

³ R v Long, at 175.

relevant stage of proceedings to which the section refers is the entry of the guilty plea.⁴

[13] The issue in the present case is whether Ms Bell’s appearance in support of Mr Dunn as amicus and the advice she gave him at that time and prior to entry of the guilty plea is legal representation for the purposes of s 30(1).

[14] It has become more common over recent years for the Court to appoint an amicus in criminal proceedings. There can be difficulties with such appointments. The difficulties were discussed by the Court of Appeal in R v McFarland at [47]– [74].⁵ The traditional role of an amicus is to assist the Court and not to represent or speak on behalf of an accused. However, as the Court observed in McFarland, the role of an amicus varies with context. Where an amicus is appointed in a criminal case it is accepted that he or she may act in a partisan way, in the sense that he or she may present the arguments that a party would normally present.⁶ In practice amici often cross-examine witnesses (particularly experts) and may even make the closing address.

[15] I note that in R v Long the Court of Appeal confirmed that whether the defendant has had legal representation in a particular case is a question of fact.

[16] In his detailed grounds in the notice of appeal Mr Dunn set out his dealing with Ms Bell. He said:

• he did not have legal representation at the time of his guilty plea or at the time of sentencing (other than access to an amicus appointed by the Court);

• the amicus gave an explanation of the charges, the likely sentences and the impact of the guilty plea; and

⁴ _{Condon v R, above n 1, at [23].}

⁵ _{R v McFarland [2007] NZCA 449.}

⁶ At [55].

• his grasp of the explanation caused him to believe that the guilty plea would result in a short sentence to be served concurrently with his existing sentences. Accordingly, he believed that the guilty plea would have no material impact on his existing sentences. In addition he believed the guilty plea was the most efficient means to conclude the charge.

[17] Mr Dunn’s notice of appeal was couched in careful terms. He does not expressly state in it that the amicus advised him that if he pleaded guilty he would receive a concurrent term of sentence. It is, in any event, inherently unlikely that a lawyer would give such advice.

[18] Nor did Mr Dunn explain the reason he was not represented by an assigned counsel.

[19] In this case it appears the amicus Ms Bell played a role very close to that of an assigned counsel. She does not appear to have had any role to play in assisting the Court other than in the provision of advice and support to Mr Dunn for the purpose of entry of plea and the sentencing exercise. It is apparent from Mr Dunn’s own points on appeal that Ms Bell, as amicus, saw him in private and gave him direct advice. She was also present in Court in his support. There is little practical difference between Ms Bell’s relationship with Mr Dunn in this case and the position of counsel assigned who will give advice and attend Court on a guilty plea. Counsel assigned may perhaps have addressed further submissions to the Court, but that is the only distinction. Ms Bell’s involvement is quite different to and can be contrasted with the role played by the duty solicitor in R v Long, for example.

[20] I consider that Mr Dunn was, on the facts of this case, legally represented. It is therefore unnecessary to consider whether Mr Dunn had failed to exercise his rights to legal representation. Section 30(2) is not engaged.

[21] In coming to that conclusion, however, I reiterate the observations of the

Supreme Court in Condon at [24], namely that:

... good practice will have required Judges to inquire of a self-represented defendant, as subs (2) obliges them to do, whether the defendant knew of and fully understood his or her rights to representation and had the opportunity to exercise those rights. ... So long as the answers to such questions properly “satisfy” the Court in terms of s 30(2), there is no difficulty under s 30 with an accused entering a guilty plea ...

[22] Where Judges at first instance encounter an apparently unrepresented defendant who is facing a sentence of imprisonment they should approach the matter by testing whether s 30(2) applies rather than appointing an amicus. Where an offender appears without representation the Court must make an inquiry as to whether s 30(2) applies. The Court should not be distracted from making such an inquiry by the appointment of an amicus. If that is a developing practice it is not to be encouraged.

The impact of the sentence on Mr Dunn’s release

[23] The second ground of appeal is the impact on Mr Dunn of the one month cumulative. At the time that sentence was imposed Mr Dunn was serving a 24 month sentence, a short term sentence of imprisonment. By s 86(1) of the Parole Act Mr Dunn was entitled to be released after service of one half of that term, namely one year. That one year apparently expired approximately one week or so after the sentence imposed in this case.

[24] With the cumulative sentence of one month imprisonment Mr Dunn became subject to a long-term notional sentence of 25 months. Under s 86(2) his release date became the sentence expiry date and, importantly from his point of view, he became subject to the parole regime.

[25] Section 21 of the Parole Act provided that the Parole Board was required to consider Mr Dunn’s release on parole as soon as practicable after one-third of his sentence had passed (approximately eight months). By the time the sentence was imposed in August the eight month period had passed.

[26] However, a Parole Board considered Mr Dunn’s application for parole on 12

December 2014. In that decision the Parole Board noted:

1. Darrell Edward James Dunn, 46, appeared for the further consideration of parole on his effective sentence of two years one month for assault with intent to injure, assaulting a female and theft adding to a full catalogue of offending in prison terms since 1990 including some 17 convictions for violence.

...

4. There has been some progress with the resolution of outstanding charges. We know that there is now only one relating to using a forged document. Mr Dunn handed us a letter from his counsel Ms Bell of 3 November 2014 about that. It appears there has been an inconclusive handwriting expert’s report. Mr Dunn has been remanded in custody on that charge until 3 February 2105 although the Court has directed that there was to be no adjournment of the charge.

5. There is still an appeal to be considered in relation to the imposition of a cumulative one-month sentence on a theft charge imposed on 20

August 2014 at a point when Mr Dunn had only one week remaining on his original 2 year sentence.

6. Mr Dunn laments these various factors. We can understand that but the reality for him is that he has had no meaningful rehabilitative intervention which is problematic given his extensive record.

7. In short, there is no basis for us to find that risk is other than undue.

Parole is declined. We will see Mr Dunn in July 2015.

[27] I accept Mr Whittington’s submissions that a sentence of one month imprisonment cumulative for the theft charge given Mr Dunn’s background and previous offending could not be regarded as manifestly excessive. I also note his submission that the Court is directed by s 82 of the Sentencing Act not to have regard to time spent in pre-sentence detention.

[28] However, Mr Wharepouri drew the Court’s attention to the Court of Appeal decision of R v Griffiths.⁷ Mr Griffiths had been sentenced to a cumulative sentence of six years’ imprisonment for wounding with intent to cause grievous bodily harm and assault with intent to injure. At the time he was already serving two cumulative terms of imprisonment totalling nine years for aggravated burglary, two charges of burglary and a further aggravated robbery. Mr Griffiths had also been recalled to

prison after previously being paroled. The Court noted that the effect of the cumulative sentence was to extend Mr Griffiths’ statutory release date to 17 June

_{2012 and the expiry date of his sentence to 17 September 2012 when, if the sentence}

⁷ R v Griffiths CA77/06, 18 September 2006.

had been imposed cumulatively then his release and expiry dates would have been

19 March 2010. In the particular circumstances of that case the Court considered it appropriate to intervene and to substitute a concurrent six year sentence.

[29] I consider that case to be limited to the particular facts applying to Mr Griffiths. Having been sentenced to substantial periods of imprisonment, Mr Griffiths had been paroled and then recalled. The statutory release dates were particularly relevant for him. The Court was obviously influenced by the fact that Mr Griffiths had effectively been serving a sentence of imprisonment since September 1996.

[30] In the present case the effect of ss 86 and 21 of the Parole Act was that Mr Dunn in fact became eligible for parole at an earlier date (one-third of the 25 months) than his statutory release date under the short-term sentence (12 months). Whether Mr Dunn was to be granted parole at that time was up to him and the Parole Board. Mr Dunn has not been denied release on parole because of the additional one month term, but as a consequence of his past history and the risk he poses. I also note that Mr Dunn has the right under s 26(2) of the Parole Act to apply for reconsideration of parole at an earlier date than July 2015.

[31] Finally I note that Mr Dunn’s co-offender was sentenced to one month’s imprisonment cumulative on an existing term of imprisonment as well. There is no basis to distinguish between the two. I also note that if Mr Dunn was to be sentenced to one month concurrent there would be no effective penalty for the further theft.

[32] I do not consider in the circumstances of this case that it can be said the consequential parole effect the sentence has had on Mr Dunn means that the one month sentence of imprisonment cumulative was manifestly excessive or an error of law.

Result

_{[33] For those reasons the appeal against sentence is dismissed.}

Venning J