DARRELL EDWARD JAMES DUNN v THE KING [2022] NZCA 574

DARRELL EDWARD JAMES DUNN v THE KING [2022] NZCA 574 [24 November 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA223/2021[2022] NZCA 574BETWEEN DARRELL EDWARD JAMES DUNNApplicantAND THE KINGRespondentCourt: Miller, Muir and Gendall JJCounsel: M J Taylor-Cyphers for ApplicantS K Barr for RespondentJudgment:(On the papers)24 November 2022 at 11.00 amJUDGMENT OF THE COURTThe 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 homelessperson, at Auckland. A jury found him guilty of manslaughter. On 26 October 2016Palmer 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;2an uplift of six months for his previous history of violent offending,3 and a further1 R v Dunn [2016] NZHC 2552.2 At [26].3 At [30].uplift of nine months because he was on parole, and in breach of parole conditionsprohibiting use of alcohol and drugs, when he killed Mr Wharawhara.4 The Judgenoted 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 ofself-defence was taken into account in the starting point.6[3] Mr Dunn appealed conviction and sentence. On the advice of senior counselhe 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 theSupreme Court.8[4] On 22 April 2021 Mr Dunn filed a sentence appeal. The Court has treated it asan application for leave to withdraw the 2019 abandonment.[5] Mr Dunn represented himself at the conviction appeal hearing but he hadengaged with a number of counsel and had advice from standby counsel,Paul Dacre KC. He has not waived privilege in connection with the abandonment, butit is not in dispute that he acted on advice which extended to the issue he now wishesto raise. The decision to abandon was therefore deliberate and informed.9 So he mustpoint to circumstances of an exceptional nature justifying departure from the principleof finality.10 That threshold may be met if he can point to a clear and material error offact or law in the sentence.11[6] The proposed appeal is motivated by the uplift for breach of parole. Mr Dunnhas now otherwise served his sentence and is to be released on sentence expiry date inMay 2023. His complaint, about which he feels very keenly, is that the uplift wasunjustified.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].[7] He says that he had earlier been sentenced to two years' imprisonment onassault charges, meaning he would be paroled automatically after 12 months.12While serving that sentence he chose to plead guilty to a charge of stealing a bottle ofvodka, and was sentenced, unexpectedly from his perspective, to a cumulativesentence of one month's imprisonment. This had the effect of converting his existingsentence to one of two years' and one month, meaning that it became a long-termsentence. He had to seek parole, which was denied. He says that he was eventuallyreleased at sentence expiry date, 29 September 2015. He argues that on release he wassubject only to standard release conditions and the Parole Board lacked jurisdiction toimpose 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 filedsubmissions, the substance of which is that the overall sentence was stern havingregard to the approach now taken to discounts. She has provided information aboutMr Dunn's background; his mother was very young, and died young, he did not knowhis father, and he was raised by grandparents.[9] Mr Dunn has also filed submissions in which he criticises Ms Taylor-Cyphersfor 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 hewas on standard release conditions only and the Board acted without jurisdiction whenimposing the special condition. He contends that the police knew he was drinking onthe streets, as did his probation officer, but neither had done anything about it or toldhim he was in breach of conditions.[10] Mr Dunn's point of law is not arguable. Mr Dunn was not technically onparole, but was subject to standard and special release conditions.13 The Parole Boardwas obliged under s 18 of the Parole Act 2002 to impose standard release conditionsfor a period of six months from statutory release date and might impose special releaseconditions for up to six months.12 Parole Act 2002, s 86.13 Sections 29–29AA.[11] In the circumstances an uplift was unquestionably available to the Judge foroffending that followed so soon on Mr Dunn's release and was in breach of a specialrelease condition. We do not accept that there is any material error of fact in thesentence.[12] That strictly disposes of the application. But we record that we are notpersuaded 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