O'Docherty v Police - [2014] NZHC 2312

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000016 [2014] NZHC 2312

BETWEEN
LIAM DAVID O'DOCHERTY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 September 2014

Appearances:

J Turner for Appellant
R D Smith for Respondent

Judgment:

23 September 2014

JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Mr O’Docherty, appeals against a sentence of two years and four months imprisonment imposed by Judge Phillips in the Dunedin District Court on 29 May 2014 for injuring with intent to injure (under s 189(2) Crimes Act 1961 which has a maximum penalty of five years imprisonment), breach of release conditions and outstanding fines.

[2] Mr O’Docherty appeals on the ground that the sentence Judge Phillips imposed was manifestly excessive given:

(a) The circumstances of the offending;

(b) Mr O’Docherty’s personal circumstances; and

(c) The sentence is not within range of other sentences imposed for similar offending.

O'DOCHERTY v NEW ZEALAND POLICE [2014] NZHC 2312 [23 September 2014]

Background facts

[3] At around 9 a.m. on 15 December 2013, the victim was at home in bed when three males, including Mr O’Docherty, forced their way into the victim’s flat by smashing through the front door. Mr O’Docherty and the other two males then attacked the victim who was at that point standing. They threw a number of punches hitting the victim about the head and body causing him to fall to the ground. While on the floor the victim was kicked and stomped on by his three attackers. The victim has said he believed the attack lasted for a minute or more.

[4] When Mr O’Docherty and his associates had left the address, the victim found that two television sets in his flat had been smashed. The television sets were worth an estimated $1300. Damage to the front door of the flat amounted to
$201.30.

[5] As a result of the attack the victim was treated at Dunedin Public Hospital for bruising and grazes to his head, arms and body. Mr O’Docherty declined to speak to the police.

The District Court decision

[6] In the District Court Mr O’Docherty pleaded guilty and came before Judge

Phillips on 29 May 2014.

[7] On the injuring with intent to injure charge the Judge adopted a starting point of two years and six months imprisonment. He relied on the approach in Nuku v R1 when imposing sentence upon Mr O’Docherty. Judge Phillips identified as aggravating features:

(a) Extreme violence, including kicking and stomping of a man after

Mr O’Docherty and his associates had knocked him to the ground;

(b) Premedication because Mr O’Docherty and his associates kicked

down the front door to get to the victim to “sort him out”;

1 Nuku v R [2012] NZCA 338.

(c) Attacking of the head; (d) Multiple attackers;
(e) Home invasion;

(f) The vulnerability of the victim; and

(g) A degree of vigilante action.

[8] Judge Phillips determined that Mr O’Docherty’s offending came under band

3 of Nuku which has a starting point of between…

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'Docherty v Police

Details

AGLC: O'Docherty v Police [2014] NZHC 2312
Case: [2014] NZHC 2312
Decision Date: 23 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of O'Docherty v Police was heard, in which Liam David O'Docherty appealed against a sentence of two years and four months imprisonment imposed by Judge Phillips in the Dunedin District Court on 29 May 2014. The appeal was grounded on the claim that the sentence was manifestly excessive in light of the circumstances of the offending, Mr O'Docherty's personal circumstances, and the sentence's deviation from those imposed for similar offenses. The court was required to determine whether the sentence imposed by the District Court was an error of law, and if so, whether a different sentence should be imposed.

The court considered the legal principles governing sentence appeals, noting that Section 250 of the Criminal Procedure Act 2011 requires the first appeal court to allow an appeal if it is satisfied there is an error in the sentence imposed and a different sentence should be imposed. The court examined the starting point for sentencing, determined by the presence and extent of various aggravating factors, and found that Judge Phillips correctly identified the aggravating features present in the case, placing it within band 3 of Nuku, with a starting point of two years and six months imprisonment. The court further found that the uplifts made by Judge Phillips to reflect the breach of release conditions and outstanding fines were justified, and the 20% discount for the guilty plea was appropriate. After considering comparable cases, the court concluded that the sentence imposed by Judge Phillips was well within an appropriate range and dismissed the appeal against the sentence.

Orders