Hearing:	11 June 2020
Court:	Winkelmann CJ, Glazebrook, O’Regan, Ellen France and Williams JJ
Counsel:	P M Keegan and N P Bourke for Appellant P D Marshall and M J Lillico for Respondent
Judgment:	14 September 2020

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of 22 months’ imprisonment is quashed and a sentence of 10 months’ home detention is substituted. The sentence is subject to the conditions listed at [55] of this judgment.

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REASONS
(Given by Williams J)

Introduction

What sentencing law applies when a person is prosecuted, convicted and sentenced in New Zealand for an offence committed in the Cook Islands?
The appellant, Mr O’Carroll, indecently assaulted a woman while he was on holiday in the Cook Islands. The Cook Islands Act 1915 (an Act of the New Zealand Parliament still partially in force[1]) provides that a person who offends in the Cook Islands against the Crimes Act 1969 (Cook Islands), can be prosecuted in New Zealand. Mr O’Carroll was prosecuted in New Zealand pursuant to this procedure. He pleaded guilty and was sentenced in the New Zealand High Court. The question arose as to whether Mr O’Carroll could be sentenced to home detention, given that Cook Islands law does not provide for home detention as a sentencing option. The High Court and Court of Appeal both held that he could not. And the Court of Appeal held that, in any event, there is no right of appeal from a sentence handed down in the High Court of New Zealand in relation to offending in the Cook Islands.
[1]See below at [24].
A distinctive feature of this case is that both parties argued in the Courts below and in this Court that home detention is available.[2] They also argued that there was a right of appeal to the Court of Appeal. Their position in this Court was accordingly that the High Court and Court of Appeal were wrong.

Factual background

[2]As we explain below at [9], the High Court provided Mr O’Carroll with a sentencing indication. At that stage the Crown’s position was that home detention was not available. The Crown changed its position by the time of actual sentencing but nevertheless maintained that imprisonment was the appropriate sentence. By the time of the appeal to the Court of Appeal, it accepted that home detention was both available and appropriate.

Mr O’Carroll is a New Zealand citizen. In September 2016, he was on holiday in the Cook Islands. The complainant was also there on holiday from New Zealand, with her partner. The couple did not previously know Mr O’Carroll but were staying at the same resort.
On the evening of 8 September, the complainant and…

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.

Continue reading O'Carroll v The Queen

Details

AGLC: O'Carroll v The Queen [2020] NZSC 92
Case: [2020] NZSC 92
Decision Date: 14 September 2020

CaseChat Overview and Summary

Shay O’Carroll appealed against his conviction and sentence for indecent assault, which he committed while on holiday in the Cook Islands. The Supreme Court of New Zealand allowed the appeal and substituted a sentence of 10 months’ home detention for the original 22 months’ imprisonment. The appeal hinged on whether the Court of Appeal had jurisdiction to hear appeals from sentences handed down by the High Court in cases where the offence was committed in the Cook Islands. The Supreme Court held that it did. It also held that the High Court had jurisdiction to impose a sentence of home detention, which is not available under Cook Islands law. The Supreme Court held that s 155 of the Cook Islands Act 1915, which extends the criminal jurisdiction of the High Court of New Zealand to offences committed in the Cook Islands, must be interpreted broadly. This means that the Court of Appeal has jurisdiction to hear appeals under the Criminal Procedure Act 2011. The Supreme Court also held that s 155(4) of the Cook Islands Act, which requires the High Court to impose the punishment prescribed by Cook Islands law, refers to the maximum punishment only. This means that the High Court may impose a sentence of home detention if it is available under New Zealand law. The Supreme Court substituted a sentence of 10 months’ home detention for the original 22 months’ imprisonment, with special conditions.

Orders