O'Connell v Police
[2024] NZHC 2247
•12 August 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-109 [2024] NZHC 2247
BETWEEN JESSE ROBERT O’CONNELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 August 2024 Appearances:
J D N MacLeod for Appellant M W Fulton for Respondent
Judgment:
12 August 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 12 August 2024 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
JESSE ROBERT O’CONNELL v NEW ZEALAND POLICE [2024] NZHC 2247 [12 August 2024]
Introduction
[1]The appellant, Jesse Robert O’Connell, has been convicted of 12 charges:
(a)one charge of breach of parole;1
(b)three charges of possessing offensive weapons;2
(c)two charges of theft under $500;3
(d)four charges of possessing goods capable of being used to facilitate a crime with dishonest intent;4
(e)one charge of possessing a cannabis plant;5 and
(f)one charge of possessing utensils.6
[2] On 4 April 2024, Mr O’Connell was sentenced by Judge Couch to 16 months’ imprisonment. He appeals this decision on the ground that the District Court Judge erred in his assessment of the application of s 202BA of the Crimes Act 1961 in imposing a sentence of imprisonment rather than a community-based sentence.
Facts
[3]The District Court decision summarised the facts of the offending as follows:7
[2]On 1 May last year, you were released from prison on parole. One of the conditions was that you were not to possess or use alcohol or controlled drugs. On 29 May, you completed a drug test which came back positive for methamphetamine, amphetamine, MDMA and cannabis. That led to a charge of breach of parole.
[3]In the evening of 25 June last year, you were with three others in your car on a street in New Brighton. Police arrived in response to a
1 Parole Act 2002, s 71(1) — maximum penalty one year imprisonment or $2000 fine.
2 Crimes Act 1961, s 202A(4)(a) — maximum penalty three years’ imprisonment.
3 Sections 219 and 223(d) — maximum penalty three months’ imprisonment.
4 Section 228C — maximum penalty three years’ imprisonment.
5 Misuse of Drugs Act 1975, s 7(1)(a) — maximum penalty three months’ imprisonment or $500 fine.
6 Subsections 13(1)(a) and (3) — one year imprisonment or $500 fine.
7 Police v O’Connell [2024] NZDC 7414.
complaint by members of the public. The vehicle was searched as were you. In your bag was a folding knife. Under the seat you were sitting on, there was another knife. You also had four and a half grams of cannabis on you. That led to two charges of possession of an offensive weapon and one charge of possession of cannabis.
[4]There were then a series of events in a period of two weeks, giving rise to six charges late last year. On 20 December, you stole $78.29 worth of petrol. The following day, you stole another $100 worth of petrol. That has led to two charges of theft under $500.
[5]There were then four occasions on which you were driving vehicles with stolen number plates attached. That was on 23 December, 24 December, 1 January and 3 January. That has led to four charges of possessing goods capable of being used to facilitate a crime with dishonest intent.
[6]On 8 January, you were stopped by police when you were driving a car. They searched the vehicle and found knuckle-dusters in your bag and a methamphetamine pipe in the car. That has led to a further charge of possession of an offensive weapon and a charge of possession of utensils.
District Court decision
[4] In sentencing the appellant Judge Couch regarded the possession of offensive weapons as the lead charges, taking a starting point of 14 months’ imprisonment for those three charges together. On the charges of dishonestly possessing goods capable of being used to facilitate a crime, a starting point of six months’ imprisonment was taken. The breach of parole was considered significant offending, with evidence of four different controlled drugs being consumed, and a starting point of three months’ imprisonment was taken on these charges. Finally, an uplift of two months’ imprisonment was taken for the other charges.
[5] The combined starting point was 25 months’ imprisonment, reduced to 22 months’ when totality was taken into account.
[6] With uplifts for the aggravating factor of the offending occurring while on bail and for the appellant’s extensive history of breaches of community-based sentences and dishonesty offending, along with discounts for prompt guilty pleas and personal and background factors, an end sentence of 16 months’ imprisonment was reached.
[7] The Judge then acknowledged that he would usually need to consider whether a less restrictive sentence than imprisonment was appropriate. However, he went on to say that in this case, s 202BA of the Crimes Act applied, which provides that where a person is convicted of an offensive weapons offence within two years of another conviction on such an offence, the Court must impose a sentence of imprisonment unless there are special circumstances relating to the offence or the offender which make it inappropriate to apply such a sentence.
[8] The Judge referred to counsel’s submissions which said that the time the appellant had spent remanded in custody and his general background constituted special circumstances justifying the avoidance of application of s 202BA. However, the Judge was not persuaded that those circumstances justified avoidance of the presumption in s 202BA and a sentence of 16 months’ imprisonment was imposed.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10
Submissions
Appellant’s submissions
[10] Mr MacLeod, counsel for the appellant, submits that the Judge erred in his assessment of the application of s 202BA in imposing a sentence of imprisonment rather than a community-based sentence.
8 Criminal Procedure Act 2011, subs 250(2) and 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
[11] Having found no directly relevant case law on s 202BA, Mr MacLeod refers to case law in relation to the presumption of a sentence of imprisonment in sentencing for both sexual violation offending under s 128B(2) of the Crimes Act 1961 and Class A drug dealing charges under s 6(4) Misuse of Drugs Act 1975. Those sections both require a prison sentence unless having regard to “the particular circumstances” of the offence or the offender the Court thinks they should not be sentenced to imprisonment.
[12] Case law discussing the presumption of imprisonment under those sections suggest factors that may displace the presumption include youth,11 realistic prospects of rehabilitation,12 and the views of the victim,13 whereas continued denial of any wrongdoing and unwillingness to accept responsibility is a factor weighing in favour of the presumption.14 Mr MacLeod submits these same factors should be considered by the Court when sentencing someone under s 202BA.
[13] Mr MacLeod noted that in the District Court the sentencing Judge provided a relatively brief assessment. While he noted that home detention was a possible option after reaching an end sentence of 16 months imprisonment, he said it would not be considered due to the application of s 202BA. Mr MacLeod submits that the Judge did not discuss or place weight on any particular factors and erred in taking a holistic approach rather than considering the particular circumstances of the offending and the offender.
[14] Turning to the circumstances of the offence, Mr MacLeod focused on the charges of possession of weapons. He notes that the police prosecutor indicated that these charges could have also been laid under the Summary Offences Act 1981, in which case s 202BA would not have applied.
[15] He also submitted that it was relevant that the offending that triggered s 202BA occurred after the appellant had pleaded guilty to the initial offences, but before being
11 Zhang v R [2019] NZCA 507, [2019] NZLR 648 at [55].
12 At [55].
13 Hopkins v R [2022] NZCA 317 at [22].
14 Perrin v R [2023] NZCA 94 at [19].
sentenced. Further, his other charges had an impact on the sentencing outcome, some of which indicated drug use or addiction.
[16] Regarding the circumstances of the offender, Mr MacLeod submits that the pre-sentence report and the s 27 report both reflect the appellant’s desire for rehabilitation. In particular, the pre-sentence report includes Corrections’ recommendation that a supervisory sentence would be appropriate, while the s 27 report reflected his desire for rehabilitation, which was a significant step. The appellant expressed his fear about trying to overcome his addictions and indicated that day rehabilitation may be a path to rehabilitation while acknowledging it was “hard for [him] to say” whether that would work.
[17] Mr MacLeod also submitted that the appellant accepted his guilt at an early stage of proceedings and took full responsibility for his offending without attempting to minimise it.
[18] Finally, Mr MacLeod reiterates the submission which was made in the District Court that as the appellant had already spent nearly three months in custody on remand (equivalent to six months’ imprisonment), he had arguably already served a term of imprisonment and the presumption of a sentence of imprisonment could be overcome.
[19] Relying on these factors, Mr MacLeod submits that the presumption in s 202BA could be overcome, and an electronically monitored sentence with a supervisory aspect would be the appropriate sentence.
Respondent’s submissions
[20] Ms Fulton, for the respondent, submits that the appeal should be dismissed. The sentencing Judge did consider the presumption, albeit on a general basis, and his decision that it was not overcome was correct.
[21] Ms Fulton acknowledged that when assessing whether a presumption of imprisonment should apply, the courts generally consider:
(a)the particular circumstances of the offender;
(b)the particular circumstances of the offence, including the nature of the conduct constituting it;
(c)whether the offender has accepted responsibility for the offending; and
(d)whether the sentencing judge has been persuaded that the offender’s real prospects of rehabilitation that were sufficient to justify a sentence of home detention.
[22] However, in this case, in considering the circumstances of the offender, Ms Fulton identified that the Judge found the breach of parole to be significant offending, the June offending occurred while on bail and he had an extensive history of breaching community-based sentences and of dishonesty offending.
[23] Regarding the circumstances of the offence, Ms Fulton notes that the Judge acknowledged the seriousness of the third charge under s 202A, commenting “[t]he only purpose of knuckle-dusters is to hurt other people. They have no benign use whatsoever. It is aggravated by the two earlier charges of possession of knives”.15
[24] Regarding whether the offender accepted responsibility, Ms Fulton submits that while the appellant entered prompt guilty pleas, his comment to police that the knife did not belong to him was an attempt to deflect responsibility and shows a lack of insight into the dangers associated with carrying weapons.
[25] Regarding the prospects of rehabilitation, Ms Fulton submitted that there was nothing in either the pre-sentence report or the s 27 report that indicated a true and genuine desire to engage in rehabilitation. While admitting he needed support, the appellant said it was “hard [for him] to say” whether day rehabilitation might be a good start to addressing his long-term drug dependency. The s 27 report observed that it would be impossible for the appellant to cease his recidivism unless he could achieve sobriety, connect to a different social group, alter his gang identity and find healthy interests.
15 Police v O’Connell, above n 7, at [7].
[26] Ms Fulton submits that the Judge was appraised of all of the information about the appellant, but in the exercise of his discretion, decided against imposing a sentence of home detention. Ms Fulton submits that this sentence was available to the Judge, and the appeal should be dismissed.
Analysis
[27] Because the appellant was facing three further charges of possession of an offensive weapon, s 202BA of the Crimes Act applies, and there is a presumption of imprisonment. That section provides:
202BA Sentencing for second crime against section 202A(4)
Where—
(a)any person is convicted of a crime against paragraph (a) or paragraph
(b) of section 202A(4); and
(b)that person has previously been convicted on at least 1 occasion within the preceding 2 years of a crime against either of those paragraphs,—
the court shall impose a sentence of imprisonment (…) on the offender unless the court is satisfied that, because of the special circumstances of the offence or of the offender, the offender should not be so sentenced.
[28] This provision clearly signals Parliament’s intention to prioritise the sentencing purposes of denunciation and deterrence and protection of the community over other sentencing principles when sentencing for offending of this type.
[29] The words “special circumstances” have been considered in a range of contexts. For example, the analogous expression, “special reasons”, was considered in Profitt v Police, in the context of mitigating the penalty of disqualification under the Transport Act 1949.16 In that case, F B Adams J said “the reasons must, of course, be “special”, and not such as are common to the ordinary run of cases.”
[30] In Re M, which considered the interpretation of what constituted “special circumstances” to justify a departure order under the Child Support Act 1991, the High Court upheld the Family Court’s interpretation of that phase which required the
16 Profitt v Police [1957] NZLR 468 (SC) at 470.
consequences to be “beyond the usual”.17 Furthermore, the Court noted that an interpretation previously adopted of “individual circumstances” or “particular circumstances”, seemed to “read down the statutory requirement to simply “circumstances”, giving no weight to the presence of the adjective “special”.”
[31] A similar provision to s 202BA is the provision in s 5 of the now repealed Criminal Justice Act 1985 which required the Court when sentencing for specified violence offences, to “impose a full-time custodial sentence on the offender unless the court is satisfied that, because of the special circumstances of the offence or of the offender, the offender should not be so sentenced.”
[32] In declining an appeal against a sentence of three and a half years’ imprisonment imposed pursuant to this provision, the Court of Appeal in R v Ross cited the Judge’s sentencing notes, without demur, where he said that special circumstances require “something that really and truly takes it out of the ordinary case or course of offending.”18
[33] While cases on the presumption in s 128B of the Crimes Act 1961 and s 6(4) of the Misuse of Drugs Act 1975 assist, I consider “special circumstances” suggests a more limited range of circumstances than is captured by the term “particular circumstances” in those sections. However, whatever the threshold, I am satisfied that the factors relied on here are not “special circumstances” and do not warrant displacement of the presumption.
[34] First, I note the Judge did take account of the factors raised in submissions as supporting special circumstances stating:
[17] Mr MacLeod submits on your behalf that the fact you have been remanded in custody for some time prior to today and your general background would constitute special conditions relating to you and avoid the application of this section. I cannot agree with that submission. The exception provided in s 202BA is only satisfied if the special conditions specifically justify a less restrictive sentence, and I am not persuaded in this case that they go that far. I therefore must comply with s 202BA.
17 Re M [1993] NZFLR 74 HC at 82.
18 R v Ross CA199/01, 27 September 2001 at [10].
[35] While Mr MacLeod submits that the pre-sentence report and s 27 report reflect the appellant’s desire for rehabilitation, the appellant admitted being unsure about whether day rehabilitation was the best place to start this process. Furthermore, both reports observed that rehabilitation could not be achieved unless the appellant moved away from the Crips gang. There was no indication he was prepared to do this. There were, therefore, no more than a tentative expression of willingness to rehabilitate and this does not constitute a special circumstance.
[36] The sentencing Judge also referred to the time spent in custody prior to sentencing, and I am satisfied his determination that that was not a special circumstance was correct. The fact that a defendant has served part of a sentence of imprisonment while on remand cannot, in and of itself, displace a presumption that prison is the appropriate sentence.
[37] The final circumstance Mr MacLeod relies on to rebut the presumption of imprisonment is the remorse shown by the appellant in entering a guilty plea. However, this, too, is not a special circumstance. It is common that defendants plead guilty, and this alone does not always indicate remorse. In this instance, the entry of a guilty plea does not indicate remorse at a level which might constitute a special circumstance justifying the rebuttal of the presumption of imprisonment.
[38] I am satisfied that nothing raised by the appellant, whether individually, or in combination, amounts to special circumstances sufficient to displace the presumption of imprisonment. The sentencing Judge did not err in exercising his discretion against a sentence of home detention.
Conclusion
[39]The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
J MacLeod, Barrister, Christchurch
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