O'Connell v Police
[2023] NZHC 3540
•6 December 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-000036
[2023] NZHC 3540
BETWEEN DARYL ROSS O’CONNELL
Appellant
AND
POLICE
Respondent
Hearing: 5 December 2023 Appearances:
P Walker for Appellant
R L Hicklin for Respondent
Judgment:
6 December 2023
JUDGMENT OF CULL J
[1] Mr O’Connell appeals against the sentence of two years and six months’ imprisonment, having pleaded guilty in New Plymouth District Court to the following charges:1
(a)Burglary x 3;2
(b)Theft (under $500.00);3
(c)Conspiring to deal with cannabis;4
(d)Breach of the Corrections Act x 2;5
(e)Resisting Police.6
1 Police v O’Connell [2023] NZDC 23139.
2 Crimes Act 1961, s 231(1)(a) – maximum penalty ten years’ imprisonment.
3 Crimes Act, ss 219 and 223(d) – maximum penalty three months’ imprisonment.
4 Misuse of Drugs Act 1975, s 6(2A) – maximum penalty seven years’ imprisonment.
5 Corrections Act 2004, s 141(1)(c) – maximum penalty three months’ imprisonment.
6 Summary Offences Act 1981, s 23(a) – maximum penalty three months’ imprisonment.
O’CONNELL v POLICE [2023] NZHC 3540 [6 December 2023]
The offending
[2] The three burglary charges relate to offending on 5 and 18 February 2023 respectively.
[3] In the early hours of 5 February 2023, Mr O’Connell and a co-offender drove to Urenui Four Square on Ngatoki Street, arriving at 4.25am. They smashed the glass of the front door and gained entry. They went behind the counter, to the cigarette cabinet and used a grinder to open it. They loaded $9,607.12 worth of cigarettes and batteries into a large bag and exited the Four Square. This gives rise to the first burglary charge.
[4] The two other burglary charges relate to offending at two petrol stations. At approximately 4:30am on 18 February, Mr O’Connell arrived in a car with no registration plates at the Egmont Village Petrol Station. He and his associate smashed the bottom panel of the front door of the petrol station and crawled inside. Mr O’Connell went to the counter. Using a grinder and a wrench, he stole the cash register, vaping products, and lighters. The group left in the vehicle and drove to another petrol station in Stratford. Mr O’Connell and associates again smashed the left panel of the front door of that petrol station to gain entry. Mr O’Connell went to the counter and used a crowbar to steal vaping products and trays of tobacco packets. He left with the stolen items. On both occasions they had used a white washing basket to fill with stolen items, the value of which totalled approximately $30,000.
[5] Also occurring on 5 February is the theft. Mr O’Connell, his girlfriend, and another young female went to the premises of Cooper Construction in Hāwera on 5 February 2023. Mr O’Connell got out of the car, and one of the three grabbed a hose lying in the yard, walked back to the vehicle, and put the hose in the car. Another one of them put the hose back. This provides the basis for the charge of theft under $500
– for the length of the hose taken.
[6] While in custody in Kaitoke Prison, Mr O’Connell was talking on the phone to his girlfriend, and asked, “Are you gonna bring me some cones” referring to cannabis. She replied, “Yes”. On 7 March, his girlfriend concealed cannabis on herself and entered the prison and handed cannabis over. Between 1 and 30 March, Mr O’Connell
and his girlfriend had further phone calls and he was heard talking about cooking cannabis oil, where to buy the ingredients, where to hide cannabis on his girlfriend’s person and inside prison, and items that could be brought to the prison. Mr O’Connell was also heard talking about selling cannabis in the prison and how to avoid detection. On 12 March the appellant and his girlfriend discussed how to bring cannabis in the prison, and on 14 March his girlfriend concealed cannabis on her, entered the prison, and handed it over. These events give rise to the conspiring to deal cannabis charge, and the two charges of breaching the Corrections Act 2004.
[7] On 20 May 2023, the Police went to arrest Mr O’Connell for the above drug offending. At this time he was on EM bail. The Police officer handcuffed him, read him his Bill of Rights, and then tried to walk him to the car by his arm. Mr O’Connell became angry, refused to walk and tried to head-butt a second officer who came in to assist. This gives rise to the resisting Police charge.
District Court decision
[8] The sentencing Judge took burglary as the lead charge, adopted a starting point of three years, and applied an uplift of six months to reflect the drug offending. From the starting point of three years and 6 months’ imprisonment or 42 months, the Judge then applied a six month deduction for the guilty plea (15%), and 15% for other mitigating factors. The Judge imposed an end sentence of two years and six months’ imprisonment.
Submissions
For the appellant
[9] Mr O’Connell appeals his sentence on the grounds that his end sentence was manifestly excessive because the Judge failed to apply an appropriate discount for his guilty plea and for Mr O’Connell’s co-operation with the Police and his willingness to give evidence to assist the Crown’s case against his co-offender. No challenge is taken to uplift and the starting point.
For the Police
[10] The Police accept that credit should have been given for Mr O’Connell’s assistance to Police but submit that otherwise the sentence was not manifestly excessive. The Police submit that the guilty plea was not entered at the earliest opportunity and no increase to the 15 per cent discount in that respect is warranted.
Approach to appeal
[11] Under s 250 of the Criminal Procedure Act 2011 the Court must allow the appeal if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[12] Despite the lack of express reference to the sentence being “manifestly excessive” under s 250(2) of the CPA, the Court still must be satisfied that the sentence is manifestly excessive.7 The focus is to be on whether the end sentence imposed by the Judge was within range, not on whether the process adopted to reach that end sentence was correct.8
Analysis
[13]The principal issues for determination are whether:
(a)the guilty plea credit of 15 per cent imposed was insufficient; and
(b)a credit should have been given for Police assistance.
[14] If both questions are answered affirmatively, the final issue is whether, as a result of the errors, the end sentence is manifestly excessive. I address each issue in turn.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].
8 Ripia v R [2011] NZCA 101 at [15].
Credit for guilty plea
[15] In addressing the discount for Mr O’Connell’s guilty plea, the Judge noted that his guilty plea was late and that he pleaded not guilty to begin with.9
[16] Ms Walker for Mr O’Connell submits that his guilty pleas were entered at the earliest reasonable opportunity, given that Mr O’Connell faced four burglary charges at the outset. The guilty pleas were entered, after the Police amended one of the charges of burglary to theft under $500 at the second case review hearing. This, Ms Walker says, occurred after thorough discussions with the Police. As soon as all the charges were clarified, Mr O’Connell pleaded guilty. Any delay was exacerbated by the fact that there had been a change of Counsel.
[17] The Crown did not accept that the guilty pleas were entered at the earliest opportunity and pointed to the fact that Mr O’Connell’s co-offender pleaded guilty at the first appearance in respect of one of the burglary charges. However, Ms Hicklin properly acknowledged that Mr O’Connell faced more charges than the co-offender and did not press the point at this hearing.
[18] I accept that it was reasonable for Mr O’Connell’s guilty pleas to have been entered, once the position was known about all of the charges he faced. In this case, it enabled a charge of burglary to be reduced to one of theft under $500, which is a significant change in the seriousness of the charge. I also accept that defence Counsel have a responsibility to ensure that a defendant is entering guilty pleas to appropriate charges. Further time is often needed to ensure this occurs.
[19] In this case, the delay between the first callover and the second case review was further exacerbated by the change of counsel. Nevertheless, the benefits of a guilty plea to the justice system should not be overlooked. The expense and administration of a trial and the added stress to witnesses being required to give evidence are all obviated by guilty pleas. In these circumstances, I consider a 25% reduction was warranted.
9 Police v O’Connell, above n 1, at [21].
Credit for Police assistance
[20] Mr O’Connell provided assistance to the Police in respect of two charges of burglary. He was one of three people who committed the burglaries. The Police identified Mr O’Connell from CCTV footage and laid charges on 20 February 2023. The Police subsequently charged two co-offenders involved in the burglary. Both elected trial by jury. The Crown were concerned about the identification evidence in respect of the co-offenders.
[21] On 21 September 2023 Mr O’Connell provided a formal witness statement in which he identified his co-defendant, who acted as the lookout. Mr O’Connell refused to identify the other person seen in the CCTV footage. The Crown intend to call Mr O’Connell as a Crown witness at the co-offender’s trial. As a result of Mr O’Connell’s statement, the Crown has sufficient evidence to pursue the charge against this co- offender.
[22] Assistance to the Police to resolve inquiries and close files was considered by the Court of Appeal in R v Wickliffe as a “significant and substantial” mitigating factor at sentencing.10 It can provide a basis for a discount.11 As the Court of Appeal held in C v R, “the extent of any discount for assistance depends principally on the value of the assistance.”12 The degree of personal risk involved, and any consequences suffered by the offender, as well as the seriousness of the offending disclosed by the offender, can also be relevant factors.13
[23] Both Counsel have impressed upon me that the Judge was not made aware of Mr O’Connell’s co-operation with the Police or his willingness to give evidence. There was no basis for the Judge at that time therefore to have made any additional discount.
10 R v Wickliffe CA387/95, 20 March 1996.
11 R v Accused (1993) 10 CRNZ 397 (CA) at 402; R v Cameron CA319/99, 25 November 1999 at [9]–[12].
12 C v R [2023] NZCA 99 at [35] citing R v Grace [2008] NZCA 243 at [21]; R v Simpson [2008] NZCA 467 at [19]; Anaru v R [2014] NZCA 283 at [8].
13 C v R, above n 12, at [35].
[24] Ms Hicklin accepts that a discount of 15 per cent (6 months) should be applied for Mr O’Connell’s assistance to Police,14 as the Crown recognises the importance of such assistance to criminal investigations and ultimate disposition of offences.
[25] I accept that a 15 per cent discount should have been applied, as Counsel submit, given the value of Mr O’Connell’s assistance.
Is the end sentence manifestly excessive?
[26] For the above reasons, I find that the appropriate discount for Mr O’Connell’s guilty pleas should be 25 per cent and adopt Counsels’ submission that a 15 per cent deduction should be made for Mr O’Connell’s Police assistance.
[27] As both Counsel accept, there is no basis to interfere with the starting point adopted by the Judge, nor with the 15 per cent discount he applied for personal mitigating factors, which was on a robust and principled basis. Accordingly, I consider that the end sentence of two years and six months was manifestly excessive.
Result
[28] The appeal is allowed. Adopting the starting point of 3 years and six months’ imprisonment and applying the following discounts:
(a)25 per cent for guilty plea;
(b)15 per cent for Police assistance;
(c)15 per cent for mitigating circumstances (undisturbed from judgment on appeal),
the end sentence of two years six months imprisonment is set aside and substituted for a sentence of one year and seven months’ imprisonment.
14 In reliance on R v Jennings [2022] NZCA 746 and R v Pian [2020] NZHC 2724 in which 15 per cent discounts were applied for Police assistance, and C v R, above n 12, in which a 20 per cent discount for such was applied.
[29] Home Detention is not sought as I am advised that there is no proposed or suitable address to facilitate home detention in this case.
Cull J
Solicitors:
Penelope Walker, Palmerston North, for Appellant Crown Solicitor, New Plymouth, for Respondent
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