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 error in the sentence and that a different end sentence should be imposed.1     The Crown observed that Mr O’Connor’s  guilty plea was entered some six months after the charge was laid, conditional on a more serious charge being withdrawn.  Ms Elsmore on behalf of the Crown noted the recent uplift

in the maximum penalty for breaches of protection orders from two years to three

1      Criminal Procedure Act 2011, s 250(2).

years in recognition of the seriousness with which Parliament views breaches of such orders.

Decision

[8]      Both Mr O’Connor and the Crown relied upon other sentencing decisions in support of their respective arguments.  Mr O’Connor made reference to a recent decision of this Court, Love v Police,2 where a nine month sentence of imprisonment for assault, together with two subsequent breaches of protection orders, involving an uninvited visit and the sending of numerous text messages, was considered an unchallengeable starting point.  This is to be contrasted with the present case where Mr O’Connor had been staying at the address with his partner’s consent and there was no subsequent breach of the order.

[9]      Against that, the Crown points to a number of authorities which are said to support the range of sentence imposed by Judge Paul.   In Hamilton v Police3  a breach of a protection order, involving verbal abuse towards the victim, an attempt to grab a cell phone out of her hand and holding the complainant against a wall by her shoulders, resulted on appeal in the imposition of an eight month starting point which was increased after consideration of relevant prior convictions.  In Wiringi v Police,4  a 12 month end sentence was replaced with a sentence of seven months, where the appellant punched a wall and yelled at his partner abusively.  In that case, the fact that the parties were living together was treated as a mitigating factor. Finally, in Mataiti v Police,5 a starting point of eight months imprisonment on two charges of breaching a protection order which involved verbal abuse and refusal to leave the house, after the offender had punched a hole in the wall, and a second incident involving arguing and refusing to leave, resulted in a starting point of eight months imprisonment.   The sentence was considered stern but not manifestly excessive, and upheld on appeal.

[10]     I accept that, from a review of those sentencing decisions and the parricular circumstances  of  the  breaches,  standing  by  itself  a  sentence  of  nine  months

2      Love v Police [2014] NZHC 2643.

3      Hamilton v Police [2014] NZHC 2698.

4      Wiringi v Police [2013] NZHC 3214.

5      Mataiti v Police [2014] NZHC 1675.

imprisonment in this case could be considered excessive.  Unlike in those cases however, Mr O’Connor was also before the Court in relation to a number of other matters, and I have little doubt that the nine month sentence incorporated a number of necessary uplifts to reflect that discrete offending or breaches of Court orders. As the Crown submitted, Mr O’Connor has a poor record of adherence to community based sentences and orders of the Court.  He has collected a vast amount of fines which the sentence of nine months imprisonment has effectively wiped clean.  An uncompleted sentence of community work was required to be substituted with a term of imprisonment and substitution of fines of more than $10,000 which Mr O’Connor has failed to pay.

[11]     Mr O’Connor has a previous conviction for breaching a protection order in November 2011.  It is apparent from his criminal history that he has a complete disregard for adherence to Court orders, and the imposition of the term of imprisonment and its length, when coupled with the other matters which he was before the District Court for sentence, reflects the need for a stern approach to Mr O’Connor’s consistent history of non-compliance.  Mr O’Connor appears to have no understanding of the seriousness of these breaches, and particularly so as it relates to the breach of protection orders.

[12]     Reading the Judge’s sentencing remarks in the context of the summary of facts and the single charge of breach of a protection order, I am satisfied Judge Paul did not mislead himself into thinking there were two separate incidents.  In the absence of Mr O’Connor being able to demonstrate that he always stood prepared to plead guilty to the breach of the protection order, I cannot conclude there was any error in not providing for a discrete credit for the guilty plea that came over six months after the laying of the charge.  Considering the matters as a whole and the discrete sentences each may have attracted on a cumulative basis, I conclude that no issue of totality is engaged, nor that the sentence on the lead charge of nine months was manifestly excessive.

[13]     As I have already recognised, given the nature of the breach standing by itself, the sentence may have been considered excessive, but I am not satisfied having regard to the other matters for which Mr O’Connor was for sentence before

Judge Paul, the nature of his criminal history, the non-payment of fines, and the inability of Mr O’Connor to complete substitute sentences in lieu thereof, that the sentence imposed can be considered manifestly excessive.

[14]     I do not consider the sentencing Judge erred in exercising his discretion to not impose a substitute sentence of home detention.   This aspect of the appeal was largely   abandoned   in   oral   argument.      For   completeness,   I   observe   that Mr O’Connor’s continued failure to abide by Court imposed orders, coupled with the obvious domestic pressure and stress which Mr O’Connor is liable to be exposed to in the family home made such a sentence unrealistic.  As Judge Paul observed, it would be entirely irresponsible for Mr O’Connor to return to the address for the purpose of a sentence of home detention where his original offending took place.

[15]     I am therefore not satisfied that the sentencing Court made an error in the sentence imposed, nor that a different sentence should have been imposed.   It therefore follows that the appeal is dismissed.

Solicitors:

DJH Stringer, Barrister, Christchurch

Raymond Donnelly & Co, Christchurch