O'Connor v Police

[2014] NZHC 2641

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-95

CRI-2014-409-96 [2014] NZHC 2641

BETWEEN

SHANNON KENNETH O'CONNOR

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing:	23 October 2014
Appearances:	D J Matthews for Appellant AMS Williams for Respondent
Judgment:	28 October 2014

JUDGMENT OF MANDER J

[1]      Mr O’Connor was sentenced to a total term of imprisonment of eight months in relation to charges of theft and breach of community work, and as a result of having to be resentenced in respect of matters arising out of his failure to complete sentences of community work.   Those related to a charge of theft, receiving, possession of syringes/needles and an earlier breach of community work.

[2]      The  new  charge  of  theft  related  to  the  stealing  of  $1,000  in  cash  from Mr O’Connor’s  brother.     On  that  charge,  he  was  sentenced  to  four  months imprisonment.  Two months imprisonment was imposed on the breach of community work charge, and he received four months as a result of the resentencing exercise. That starting point of 10 months imprisonment was reduced by two months to take into account Mr O’Connor’s  guilty pleas.   Judge Crosbie declined to  impose a sentence of home detention.

[3]      On appeal it is submitted on behalf of Mr O’Connor that the sentencing Judge

erred in not imposing a sentence of community detention or home detention in

O'CONNOR v NEW ZEALAND POLICE AND ANOR [2014] NZHC 2641 [28 October 2014]

substitution for the sentence of imprisonment.  Two grounds are relied upon; firstly, that Judge Crosbie placed undue weight on the need for deterrence to the exclusion of a consideration of the least restrictive sentence appropriate in the circumstances. Secondly, that the learned Judge discounted Mr O’Connor’s ill health as a relevant consideration.

[4]      Mr O’Connor accepted that it was appropriate that his outstanding sentence of community work would be cancelled as he could not realistically complete the sentence.   However, he takes issue with Judge Crosbie’s assessment of the recommendation contained in the original presentence report, which was one of imprisonment.   He points to the body of the report, where community detention would otherwise have been recommended in the absence of practical difficulties relating to a nominated address.   Subsequently, in an updated memorandum, the address was considered suitable.   There was not therefore, in Mr O’Connor’s submission, an obstacle to such a sentence being imposed.

[5]      Issue is  also  taken  with  the weight  afforded  by the sentencing Judge to Mr O’Connor’s health difficulties which were described by the sentencing Judge as not being a feature of the probation report.  It is submitted that there were medical certificates and reports which attested to Mr O’Connor’s chronic hepatitis C, that he suffered  from  chronic  depression,  and  anxiety  and  that,  in April  2014,  he  had suffered injuries as a result of a car accident.  It was submitted that Mr O’Connor’s previous non-compliance should be assessed against this background of health difficulties.

[6]      Mr O’Connor had the support of his parents who had made a plea for Mr O’Connor not to be imprisoned and were prepared to assist him in the community. Reference was also made to employment, which Mr O’Connor at various stages in the past year had held, and that instructions had been received by his counsel of full- time employment being available to him once the Court proceedings had been resolved.

[7]      In submitting that imprisonment was not the only viable sentencing option, it was emphasised that there had not been a total lack of compliance with the sentence

of community work.  Mr O’Connor had completed 108 hours, or just over half of the

210 hours of community work initially imposed.  It was also submitted that the theft charge had not involved any actual loss to the victim and would not necessarily have attracted a sentence of imprisonment.

[8]      Mr  Matthews  on  behalf  of  the  appellant  submitted  that  as  a  matter  of principle the Court was obliged to impose the least restrictive sentence available in the circumstances and that a sentence of community detention or home detention should have been imposed.1   He submitted that a sentence of home detention met the punitive or deterrent purposes of sentencing as recognised by the Court of Appeal.2

A sentence of imprisonment, it was submitted, did not adequately provide for the

offender’s rehabilitation and reintegration.

[9]      The difficulty however for Mr O’Connor however in challenging the sentence of imprisonment, the length of which is not itself contested, is his poor compliance history.   Mr O’Connor has been sentenced previously to sentences of supervision, community work and community detention.   He has demonstrated an inability to comply  with  the  requirements  of  these  sentences.     He  has  relatively  recent convictions for breach of Court release conditions, breaches of community work and conditions of community detention, and breaches of conditions of intensive supervision.      Past   rehabilitative   initiatives   have   not   succeeded   because   of Mr O’Connor’s lack of motivation to engage in treatment for alcohol and drug use which clearly lies at the heart of his difficulties.  He himself has acknowledged that he has no excuse, and, in his words, it has simply been a matter of laziness, drugs and avoidance.  His health difficulties do not account for this lack of engagement.

[10]     As a result of this history, I am unable to conclude that Judge Crosbie’s assessment that Mr O’Connor is “patently unsuitable for any form of community- based or electronically monitored sentence” is other than accurate.  Put simply, there was nothing in Mr O’Connor’s presentation or circumstances which could give the sentencing Court any foothold upon which to be confident that Mr O’Connor would

comply with an electronically monitored sentence.

1      Sentencing Act 2002, s 8(g).

2      Fairbrother v R [2013] NZCA 340.

[11]     Mr Matthews has said all that he can in aid of Mr O’Connor’s position, however, I am unable to discern any error in the approach taken by Judge Crosbie, nor that his decision to decline Mr O’Connor an electronically monitored sentence was   a  conclusion   unavailable  in   the  exercise   of  his   sentencing   discretion. Accordingly, the appeal is dismissed and the sentence of eight months imprisonment upheld.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch