O'Brien v Police - [2018] NZHC 2644

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-58 [2018] NZHC 2644

BETWEEN
KARL FRANCIS O’BRIEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 October 2018

Appearances:

H R Hancock and K M Kedder for Appellant
A W M Britton for Respondent

Judgment:

11 October 2018

JUDGMENT OF GRICE J (Appeal against sentence)

[1] Mr O’Brien was sentenced to 15 months’ imprisonment, with an indication that a suitable address would allow him to serve the term on home detention. The Judge converted the home detention option to a sentence of seven and a half months.

[2] The charges that Mr O’Brien was convicted on, after pleas of guilty, were one charge of burglary and possession of instruments for burglary arising from events on
5 January 2018 and one charge of burglary arising from events on 20 January 2018.

[3] Mr O’Brien appeals his sentence on the grounds it was manifestly excessive as the Judge erred by:

(a)Failing to provide a discrete discount to the starting point for time spent on electronically monitored (EM) bail;

O’BRIEN v NEW ZEALAND POLICE [2018] NZHC 2644 [11 October 2018]

(b)Failing to provide a discrete discount to the end sentence of home detention for time spent on pre-sentence detention; and

(c) Providing a disproportionate global discount for both time spent on EM

bail and pre-sentence detention.

[4] The Crown oppose the appeal on the basis the end sentence was not manifestly excessive, but do concede the Judge was incorrect when he failed to give discrete discounts for time spent on EM bail and pre-sentence detention.

The offending

[5] On the morning of 5 January 2018, Mr O’Brien was at the Kiwi Rail substation in Lower Hutt. He was dressed in a high-visibility vest and had a hacksaw. He entered the substation through a small hole in the fence, and then attempted to take some copper wiring. He left the enclosed yard when he was disturbed by a Kiwi Rail employee. The employee caught up to him and asked what he was doing. Mr O’Brien replied “taking the metal”. He was discovered a short time later by police by his car close to his home. A search of the car revealed an orange hacksaw and yellow high visibility vest. Mr O’Brien denied the offending to the police.

[6] On the morning of 20 January 2018, Mr O’Brien was at the Briscoe’s in Lower Hutt. The store was closed to the public at the time, but Mr O’Brien rolled under the locked gate at the back of the store where the goods are delivered. He tried to prise open a door but failed. In explanation to the police he told them it was not him and he had a bad back.

The sentencing

[7] The Judge gave a sentencing indication on 20 June 2018. He took the starting point of 20 months for the lead charge of burglary. He allowed a discount of 15 per cent for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2644
Decision Date: 11 October 2018

CaseChat Overview and Summary

Karl Francis O'Brien appeals the sentence of seven and a half months home detention imposed on him by the High Court of New Zealand, following his conviction on two charges of burglary. O'Brien argues that the sentence was manifestly excessive due to errors in the calculation of discounts for time spent on electronically monitored bail and pre-sentence detention. The Crown does not oppose the appeal on the grounds of the manifest excessiveness of the sentence but concedes that the Judge should have separately accounted for the discounts for electronically monitored bail and pre-sentence detention.

The legal issues before the court were whether the Judge should have separately accounted for discounts for time spent on electronically monitored bail and pre-sentence detention, and if the sentence imposed was manifestly excessive. The court found that the Judge should have accounted for these discounts separately but concluded that the final sentence was not manifestly excessive despite the error in the process.

The court noted that the standard of appeal under s 250 of the Criminal Procedure Act 2011 requires the Court to be satisfied that there has been an intrinsic error in the sentence imposed and a different sentence should be imposed. However, the focus is on the final sentence and whether it was in the available range, rather than the exact process by which it was reached. The court found that despite the errors in the process, the final sentence was within the appropriate range, and accordingly, the appeal was dismissed.

Orders