O'Connor v Police - [2014] NZHC 3095

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-110

CRI-2014-409-111 [2014] NZHC 3095

BETWEEN TERRY JOHN O'CONNOR Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing: 4 December 2014

Appearances:

DJH Stringer for Appellant
D Elsmore for Respondents

Judgment:

5 December 2014

JUDGMENT OF MANDER J

[1] Mr O’Connor was sentenced in the Christchurch District Court on charges of breaching his sentence of community work, failing to answer his bail and breach of a protection order. The Court also had before it an application for review of a sentence of 200 hours community work imposed for fines of some $10,500. Mr O’Connor also had a further $38,298 in fines outstanding at the time he came before the Court for sentence.

[2] The lead charge, the breaching of the protection order, arose out of a domestic dispute between Mr O’Connor and his partner regarding the disciplining of one of their children. Mr O’Connor became aggressive and verbally abusive towards his partner, which culminated in him picking up a plastic children’s toy and throwing it at his partner, missing her.

[3] Judge Paul was not prepared to consider a community based sentence and

sentenced Mr O’Connor to nine months imprisonment on the breach of protection

O'CONNOR v NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS [2014] NZHC 3095 [5
December 2014]

charge. On the other charges, the following sentences were imposed. On the breach of community work, one month imprisonment, on the failing to answer bail, three months imprisonment. The review of his community work sentence resulted in the substitution of a sentence of three months imprisonment. Other short periods of imprisonment were imposed in substitution of fines. All sentences were imposed concurrent on the nine month sentence. Mr O’Connor’s remaining fines were remitted.

[4] Mr O’Connor appeals the sentence of nine months imprisonment on the basis that the term is manifestly excessive. Mr O’Connor is concerned that in the short sentencing remarks Judge Paul may have mistakenly believed there were two incidents of domestic abuse. He submitted that the period of nine months does not accord with sentences for similar breaches of protection orders that have resulted in either non-custodial sentences or very short sentences of imprisonment.

[5] It was emphasised that Mr O’Connor’s guilty pleas were entered once a charge of male assaults female was withdrawn, that the offending did not involve any deliberate physical contact, that Mr O’Connor immediately left the scene, withdrawing himself from the stressful situation, and made a full admission of his involvement.

[6] Mr Stringer on behalf of Mr O’Connor acknowledged that a sentence of imprisonment was now inevitable, but requested the Court to consider substituting a shorter period, or commuting the sentence to one of home or community detention. It is submitted on behalf of Mr O’Connor that a sentence of no more than five months imprisonment should have been imposed.

[7] The Crown reminded the Court that in order to allow the appeal it must be satisfied that there is some…

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: [2014] NZHC 3095
Decision Date: 5 December 2014

CaseChat Overview and Summary

Terry John O’Connor appealed against his sentence of nine months imprisonment, imposed by the Christchurch District Court for breaching a protection order. The breach arose from a domestic dispute between O’Connor and his partner, during which he threw a plastic toy at his partner but missed her. The court also considered O’Connor's failure to comply with a community work sentence and unpaid fines. O’Connor argued that the nine-month sentence was manifestly excessive, especially since there was only one incident of domestic abuse and he had pleaded guilty late. The Crown argued that the sentence was appropriate given O’Connor’s history of non-compliance with court orders and the recent increase in the maximum penalty for breaches of protection orders.

The court examined various sentencing decisions to determine if the sentence was excessive. O’Connor cited cases where non-custodial sentences or short imprisonment terms were imposed for similar breaches, while the Crown referenced cases where longer sentences were upheld. The court concluded that, although the nine-month sentence might seem excessive in isolation, it was justified considering O’Connor's extensive history of non-compliance with court orders, the accumulation of unpaid fines, and his failure to complete community work. The court also noted that O’Connor had a previous conviction for breaching a protection order, indicating a disregard for court orders.

The court found no error in the sentencing judge’s remarks and determined that the sentence was not manifestly excessive when considering all the circumstances, including O’Connor's previous convictions and non-compliance with court orders. The appeal was dismissed, and the original sentence was upheld.

Orders