HEYDEN O’DONNELL AND NEW ZEALAND POLICE
[2024] NZHC 3527
•22 November 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-249
[2024] NZHC 3527
BETWEEN HEYDEN O’DONNELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 November 2024 Appearances:
D Lotz for Appellant
G L Collett for Respondent
Judgment:
22 November 2024
JUDGMENT OF MANDER J
This judgment was delivered by me on 22 November 2024 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
O’DONNELL v NEW ZEALAND POLICE [2024] NZHC 3527 [22 November 2024]
Introduction
[1] Heyden O’Donnell was sentenced to 25 months’ imprisonment by Judge O’Driscoll in the Christchurch District Court1 on various charges that included multiple counts of dishonesty offending, two charges of driving while disqualified in its aggravated form,2 and breaching release conditions.3 Mr O’Donnell appeals that sentence on the ground it was manifestly excessive. He alleges the uplift for the driving while disqualified (third or subsequent) charges was too high, and that insufficient credit was provided to him for personal mitigating factors.
Background
[2] On 21 September 2023, Mr O’Donnell was stopped by police for riding a moped on the wrong side of the road. He was a disqualified driver. He was arrested and searched and a glass pipe was located in his backpack. This incident gave rise to the first of the aggravated disqualified driving charges.
[3] Over the course of the night commencing 25 October 2023, Mr O’Donnell committed a series of dishonesty offences that involved breaking into and taking a number of cars, and fraudulently using stolen bank cards.
[4] On 21 December 2023, Mr O’Donnell was stopped while driving a motorbike in Northcote. This incident gave rise to the second charge of aggravated driving while disqualified. During a post-arrest search he was found to be unlawfully in possession of a hunting knife.
District Court decision
[5] In sentencing Mr O’Donnell, the Judge noted that many of the charges represented repeat offending, in particular charges of unlawfully interfering with motor vehicles and of driving while disqualified which were committed at a time when he was subject to a sentence and on release conditions. In particular, it was noted
1 Police v O’Donnell [2024] NZDC 22460.
2 Land Transport Act 1998, ss 32(1)(a) and 32(4) — maximum sentence: two years’ imprisonment or a fine not exceeding $6,000.
3 Sentencing Act 2002, s 96(1) — maximum sentence: one year of imprisonment or a fine not exceeding $2,000.
Mr O’Donnell had breached a special condition requiring him to abstain from alcohol and drugs, and that his dishonesty offending had been motivated, in particular, to feed a methamphetamine habit.
[6] The pre-sentence report recorded that Mr O’Donnell had previously breached release conditions and, on multiple occasions, failed to comply with sentences. It was noted he was at high risk of reoffending and had a poor record of complying with sentences. The Judge concluded the only viable sentence was one of imprisonment. In calculating the appropriate sentence, the Judge took the following approach:
(a)As regards the dishonesty offending (a charge of unlawfully taking a motor vehicle, three charges of unlawfully interfering with motor vehicles, three charges of obtaining by deception, and two charges of theft from a car) the Judge imposed a sentence of 20 months’ imprisonment after taking into account totality.
(b)In respect of the two driving while disqualified charges (laid in their aggravated form), the Judge imposed nine months’ imprisonment.
(c)On the charge of possessing an offensive weapon, the Judge imposed two months’ imprisonment.
(d)For the unlawful possession of a pipe, one month’s imprisonment was imposed; and
(e)For breaching his release conditions, the Judge convicted and discharged Mr O’Donnell.
[7] The Judge arrived at a starting point of 32 months’ imprisonment from which he applied a 10 per cent uplift to take into account Mr O’Donnell’s previous convictions and the fact that he was on release conditions at the time this offending was committed. After referencing a cultural report that had been prepared in respect of an earlier sentencing of Mr O’Donnell, the Judge acknowledged he was in no doubt that Mr O’Donnell’s offending was causally linked to his personal background. In
recognition of that factor and Mr O’Donnell’s prospects of rehabilitation, a 10 per cent discount was added to a 20 per cent credit in recognition of his guilty plea. That resulted in the end sentence of two years and one month’s imprisonment.
[8] The Judge recorded that he had considered whether to reduce the sentence to one of a short term period of imprisonment. However, he concluded, because of the nature and number of the charges, and Mr O’Donnell’s previous convictions, that no further reduction was warranted and that, in any event, no realistic home detention address was available.
The appeal
[9] Mr O’Donnell’s appeal is brought on two grounds. The first is that the nine- month uplift in respect of the two driving while disqualified (third or subsequent charges) offences was excessive. It was submitted by Mr Lotz that an uplift of no more than seven months should have been imposed.4 Mr Lotz further argued that the 10 per cent discount applied for Mr O’Donnell’s personal circumstances did not accord with the approach indicated by the Court of Appeal in earlier cases.5 Mr Lotz submitted that credit in the range of 15 to 25 per cent should have been afforded to Mr O’Donnell because of the causal connection with his offending that had been recognised by the Judge.
[10] In defence of the sentence, the Crown submitted the authorities relied upon in support of the challenge to the uplift for the aggravated disqualified driving charges were inapposite as they related either to a charge of driving while disqualified simpliciter or were distinguishable on their facts. It was argued, by reference to other sentencing decisions, that a higher standalone starting point could have been adopted for the two driving charges,6 and that the uplift was within range.7 In respect to the discount for the matters canvassed in the cultural report and Mr O’Donnell’s
4 Citing Barton v R [2015] NZHC 2643; R v Franklin HC Whangarei CRI-2008-088-5973, 13 July 2009; and Hendry v Police [2018] NZHC 884.
5 Carr v R [2020] NZCA 357; and Poi v R [2020] NZCA 312.
6 Jonathan v Police [2019] NZHC 1115; Jenkins v Police [2018] NZHC 2055; and Wiki v Department of Corrections [2023] NZHC 1634.
7 Brown v Police [2012] NZHC 369.
rehabilitative prospects, it was submitted the 10 per cent discount fell within the range available to the Judge in the exercise of the Court’s discretion.
Analysis
Was the uplift excessive?
[11] In oral submissions, Mr Lotz acknowledged the authorities he had relied on in his written submissions did not materially advance his argument. However, he submitted that it was apparent that uplifts for charges of driving while disqualified (third or subsequent) have varied widely when combined with sentences for other offending. He argued that in this case, other than on the first occasion when the moped was being driven on the wrong side of the road, the two instances of driving were not associated with any other aggravating features and that any uplift should have been towards the lower to moderate end of the range. It was submitted the cumulative imposition of nine months’ imprisonment sat towards the higher end and resulted in a manifestly excessive sentence.
[12] The cases relied upon by the Crown demonstrate that significant standalone starting points have been adopted for aggravated disqualified driving offences. I am unable to accept the Judge erred in his approach to the two charges for which Mr O’Donnell was for sentence. In Jonathan v Police, a starting point of 12 months’ imprisonment for a sixth conviction of driving while disqualified was followed by a four-month uplift for a seventh conviction. That cumulative starting point of 16 months was not held to be excessive but consistent with the approach adopted by the Court of Appeal in Finch v R,8 which was subsequently approved and applied in Hemopo v Police.9 Jenkins v R is another case where a starting point of nine months was adopted for a seventh charge of driving while disqualified to which a further three months was added for an earlier offence that represented the appellant’s sixth conviction, albeit for offending which also involved speeding and road safety.10
8 Jonathan v Police, above n 6, at [15], citing Finch v R [2012] NZCA 446.
9 Hemopo v Police [2024] NZHC at [20(c)].
10 Jenkins v R, above n 6.
[13] It is trite to observe when reviewing cumulative sentences that it is their final effect, rather than the process by which the sentence has been achieved or its component parts, that must be the focus when assessing whether that sentence accurately reflects an offender’s overall culpability.11 The two aggravated disqualified driving charges in this case represented Mr O’Donnell’s sixth and seventh incidences of driving while disqualified and were committed whilst on release conditions. Mr Lotz placed emphasis on what he submitted was an absence of aggravating features, but that submission tends to overlook the intrinsic seriousness of the offence that arises from the recidivism inherent in the offender’s conduct, marked by the number of occasions the driver has previously breached disqualification orders.12
[14] Mr Lotz endeavoured to argue the uplift should have been no greater than six to seven months’ imprisonment. That represents a difference of only a few months when compared with the nine-month uplift adopted by the Judge, and is unconvincing when compared with the sentencing decisions to which I have already referred such as Jonathan and Jenkins, and other case.13
[15] In Wiki v Department of Corrections, a single charge of driving while disqualified in its aggravated form represented the appellant’s fifth conviction. A starting point of eight months’ imprisonment was approved by this Court.14 Notably, the appellant had been stopped at a random police checkpoint. Beyond his multiple previous convictions for such offending, no additional aggravating features were present. In Brown v Police, an uplift of six months’ imprisonment was adopted for the purpose of a cumulative uplift for the appellant’s sixth and seventh convictions for driving while disqualified.15 At first blush that case may appear to support Mr Lotz’s argument, but this Court observed on the appeal that the uplift was “well within range”. It was noted the sentencing Court would have been entitled to impose separate cumulative sentences for each of the two driving convictions, and that the appellant could well have been subject to a longer sentence.16
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
12 Sykes v Police [2014] NZHC 2642 at [10].
13 Jonathan v Police, above n 6; and Jenkins v R, above n 6.
14 Wiki v Department of Corrections [2023] NZHC 1634.
15 Brown v Police [2012] NZHC 369.
16 At [25] and [28].
[16] It follows from this review that I do not consider the total uplift of nine months’ imprisonment added for two unrelated driving while disqualified charges was anything other than in range.
Discount for personal mitigating factors
[17] A s 27 report prepared for Mr O’Donnell for an earlier sentencing was made available to the sentencing Court. The personal background matters canvassed in that report, which included an upbringing marked by family dysfunction, lack of education, grooming and sexual trauma, and most significantly Mr O’Donnell’s drug addiction, were identified by the report writer as proximate causes of his offending. There can be no issue that Mr O’Donnell’s early life experiences impaired the choices available to him as he sought to make his way in life.
[18] Mr Lotz placed considerable emphasis on the Court of Appeal decisions in Carr v R and Poi v R, which discussed the approach to be taken to allowances for personal factors that may have impaired agency and diminished the moral culpability of offenders. Based on the approach taken in those cases, it was argued that a discount of between 15 to 25 per cent should have been afforded to Mr O’Donnell to recognise relevant personal circumstances and his prospects of rehabilitation.
[19] While undoubtedly a sentencing Court is obliged to have regard to the background of an offender, the influence of such personal features may have to be moderated by other sentencing considerations, such as deterrence, denunciation and community protection.17 In Mr O’Donnell’s case, the credit he could be afforded for his background could be legitimately tempered by his persistent proclivity to offend and, unfortunately, his failed attempts at rehabilitation, which are commented upon in the pre-sentence report. His failure to make progress appears to stem from an apathetic attitude towards his rehabilitation.
[20] As observed to counsel at the oral hearing of the appeal, Mr O’Donnell is now a mature man. I accept the consequences of his background still shape his way of life but, in the absence of him demonstrating a greater willingness to address his
17 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [94], and n 105.
recidivism, inevitably the Court has to give priority to other sentencing purposes, including the need to protect the public from his ongoing dishonesty in order to achieve an appropriate sentence. That overall objective necessarily curtails discounts that may otherwise have been able to be afforded to him.
[21] In the circumstances, I consider, while at the lower end of the range of credit that Mr O’Donnell’s personal background could have attracted, the Judge was entitled to settle on a discount of 10 per cent. I do not consider, having done so, that it resulted in a manifestly excessive sentence.
Result
[22]The sentence appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch Lawhub, Christchurch
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