O'Connell v Police

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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…

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Details
Case
[2016] NZHC 1692
Decision Date

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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