Hearing:	13 August 2014
Court:	Stevens, Simon France and Mallon JJ
Counsel:	G A Boot for Appellant O'Connor C D Bean for Appellant Kelsen N P Chisnall for Appellant Carkeek M D Downs for Respondent
Judgment:	12 September 2014 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeals against the length of sentences are dismissed.
BThe appeal by each appellant against the imposition of a minimum period of imprisonment is allowed. All orders that the appellants serve a minimum period of imprisonment are quashed.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

The appellants were involved in a joint retributory attack on a man who had stolen methamphetamine. The course of the retribution was excessive and encompassed two home invasions, theft from one of those premises, and moving the victim from address to address, all the while having initially beaten the victim at his house and continuing the assaults thereafter.
The appellants appeal final sentences of:[1]
(a)for Mr Carkeek, seven years’ imprisonment with a 50 per cent minimum period of imprisonment (MPI);
(b)for Mr O’Connor, six years, nine months’ imprisonment with a 50 per cent MPI; and
(c)for Mr Kelsen, six years, three months’ imprisonment with a 40 per cent MPI.
[1]R v Kelsen, Carkeek and O’Connor DC Hamilton CRI‑2012‑019‑4770, 2 April 2014.
Many challenges are advanced. The starting points are challenged on a disparity basis when assessed against the starting point taken for a co‑defendant. Each appellant challenges an uplift given for past offending, and the lack of any credit for mitigating factors such as remorse and a commitment to change. There is a challenge based on an arithmetical error (Mr Kelsen), and all appellants challenge the imposition of an MPI.
The Crown in its written submissions did not engage with the individual points. Instead it contended that for all appellants the starting points taken were significantly lower than the circumstances of the offending and related authorities required. That being so, it was submitted all appellants must inevitably fail to show their final sentences are manifestly excessive, regardless of any deficits that might exist in the actual process of sentencing adopted.

Facts and offending

The sentencing proceeded on the basis of an agreed summary of facts.
Mr Carkeek was visited by the victim, a Mr Robert Burke. Mr Burke went to purchase methamphetamine from Mr Carkeek, but rather than paying for it, he held a knife to Mr Carkeek’s throat and robbed him of the drugs. Mr Carkeek initiated a violent response.
Mr Carkeek was at the time living with a Ms Rachel Fraser‑Jones. Mr Carkeek directed Ms Fraser‑Jones to go and collect Messrs Kelsen and O’Connor and take them to collect Mr Burke. Ms Fraser‑Jones did this and on the way…

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.

Continue reading O'Connor v R

Details

AGLC: O'Connor v R [2014] NZCA 328
Case: [2014] NZCA 328
Decision Date: 12 September 2014 at 3.00 pm

CaseChat Overview and Summary

The appellants in this case, Frank Pou O'Connor, Dillon Wayne Kelsen, and Ross William Carkeek, were convicted of participating in a violent retribution against a man who had stolen methamphetamine. They were sentenced to various terms of imprisonment with minimum periods of imprisonment (MPI). The appellants appealed the length of their sentences and the imposition of the MPIs. The Court of Appeal of New Zealand heard the appeals and reviewed the sentencing process.

The primary legal issues the Court of Appeal had to decide were whether the starting points for the appellants' sentences were appropriate, whether the uplifts for previous offending were justified, whether credit should have been given for time spent on electronic bail, and whether the imposition of MPIs was warranted.

The Court of Appeal found that the starting points for Messrs O'Connor and Kelsen were too low, while Mr Carkeek's starting point was acceptable. The Court concluded that the uplifts for previous offending were not justified and that credit should have been given for time spent on electronic bail for Mr O'Connor. The Court also found that the imposition of MPIs was not warranted for any of the appellants.

The Court of Appeal dismissed the appeals against the length of the sentences but allowed the appeals against the imposition of MPIs. As a result, all orders that the appellants serve a minimum period of imprisonment are quashed.

The final orders of the Court of Appeal are that the appeals against the length of the sentences are dismissed, and the appeals by each appellant against the imposition of a minimum period of imprisonment are allowed, with all orders that the appellants serve a minimum period of imprisonment being quashed.

Orders