O'Connell v Police - [2023] NZHC 3540

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…

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: [2023] NZHC 3540
Decision Date: 6 December 2023

CaseChat Overview and Summary

Daryl Ross O’Connell appeals against a sentence of two years and six months’ imprisonment, which was imposed after he pleaded guilty to multiple charges, including burglary, theft, conspiring to deal cannabis, breaching the Corrections Act, and resisting Police. The appeal focuses on whether the sentence was manifestly excessive due to errors in the discount applied for the guilty plea and for Mr O’Connell’s co-operation with the Police. 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 and that the guilty plea was not entered at the earliest opportunity.

The court examined whether the discount for the guilty plea was insufficient and whether credit should have been given for Police assistance. The court held that the discount for the guilty plea should have been 25 per cent, not 15 per cent, as the guilty plea was entered at the earliest reasonable opportunity once the charges were clarified. The court also found that a 15 per cent discount should have been applied for Mr O’Connell’s assistance to Police, as his cooperation was valuable. Therefore, the end sentence of two years and six months was manifestly excessive.

The appeal was allowed. The court set aside the end sentence and substituted it with a sentence of one year and seven months’ imprisonment, applying the appropriate discounts for the guilty plea and Police assistance. The court did not impose home detention due to the lack of a suitable address for this purpose.

Orders