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 RespondentJudgment:
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…
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- Case
- [2018] NZHC 2644
- Decision Date
CaseChat Overview and Summary
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.
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