O'Connell v Police - [2016] NZHC 1692

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000014 [2016] NZHC 1692

BETWEEN
CALEB MAX OʼCONNELL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 25 July 2016

Appearances:

C C Lynch for Appellant
R D Smith for Crown

Judgment:

25 July 2016

ORAL JUDGMENT OF DUNNINGHAM J

[1] Mr O’Connell appeals the sentence imposed on him by Judge Wharepouri in respect to one charge of careless driving causing injury. On 9 June 2016, the appellant was sentenced to:

(a) 150 hours community service;

(b) reparation of $1050 to be paid in $50 instalments; and
(c) six months’ disqualification from driving or holding a drivers’ licence. [2] The primary focus of the appellant’s appeal is against the sentence of

150 hours’ community service. It is submitted by the appellant that, in light of the totality of the sentencing, the sentence of 150 hours’ community service is manifestly excessive.

OʼCONNELL v NEW ZEALAND POLICE [2016] NZHC 1692 [25 July 2016]

Background

[3] The events which gave rise to this charge occurred on 2 March 2016. At the time the appellant was driving north on South Road, Dunedin. The appellant had his right indicator on with the intention of turning right onto Burns Street. The victim was on a bicycle, also riding north on South Road. The defendant failed to give way to the victim coming toward him and collided with him, knocking him off his bicycle.

[4] The victim suffered bruising and swelling to both legs and is receiving ongoing physiotherapy treatment. He was off work for six weeks following the accident and was still recovering from his injury at the time of the restorative justice conference on 1 June 2016.

District Court Decision

[5] In sentencing Mr O’Connell, Judge Wharepouri took into account the appellant’s limited criminal history, his remorse, his readiness to attend the restorative justice programme, the victim impact statement and the pre-sentence report. In light of the principles and purposes of the Sentencing Act 2002, and taking into consideration Mr O’Connell’s guilty plea at the earliest convenience, the Judge sentenced the appellant to six months’ disqualification, to pay $1050 in reparation and to undertake 150 hours’ community service.

Jurisdiction on appeal

[6] Mr O’Connell appeals to this Court as of right.1 Under s 250 of the Criminal Procedure Act 2011, the appeal must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should be imposed. It is well accepted that where a sentence is “manifestly excessive”, that is an error that would justify allowing an appeal.2 The question of whether a sentence is manifestly excessive, however, “is to be examined

in terms of the sentence given, rather than the process by which the sentence is

reached.”3

Defence Submission

[7] In support of this appeal, the appellant submits that the following factors should be taken into account:

(a) the offending was at the low end of the scale of careless driving; (b) the findings…

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: [2016] NZHC 1692
Decision Date: 25 July 2016

CaseChat Overview and Summary

The High Court of New Zealand, Dunedin Registry, considered the appeal of Caleb Max O'Connell against his sentence for careless driving causing injury. The appellant was sentenced to 150 hours of community service, reparation of $1050, and six months' disqualification from driving or holding a driver's licence. The appellant argued that the 150 hours' community service was manifestly excessive given the totality of the sentencing. The court had to determine if the sentence imposed was erroneous and if a different sentence should be imposed.

The court examined the legal issue of whether the sentence was manifestly excessive. The appellant cited several cases to support his argument, including Montgomery v Police, Tupu v Police, George v Police, Combes v Police, and Blackbourn v New Zealand Police. The court noted that these cases demonstrated a sentencing judge's discretion to impose a punitive element, whether by fine or community service, which was consistent with the purpose and principles under the Sentencing Act. The court also noted that the appellant's ability to pay a fine was limited, making a sentence of community service more appropriate.

The court found that Judge Wharepouri's approach in sentencing was orthodox, taking into account all the factors raised by the appellant. The court accepted that the appellant had no relevant previous offending, but noted that he was in breach of one of his licence conditions, carrying a passenger at the time of the accident. The court also acknowledged the appellant's remorse, which was the reason for imposing a minimum period of disqualification. The court concluded that the end sentence was within the range of options available to the decision maker, and while the length of community service imposed was certainly at the upper end, it could not be said to be manifestly excessive. The appeal was dismissed.

Orders