O'Donnell v Police

[2014] NZHC 1834

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-65 [2014] NZHC 1834

DWAYNE O'DONNELL Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	5 August 2014
Counsel:	S A Thistoll for Appellant E M Light for Respondent
Judgment:	5 August 2014

ORAL JUDGMENT OF RONALD YOUNG J

[1]      This is an appeal against a refusal by a Judge to vary Mr O’Donnell’s bail conditions by a cancellation of his 24 hour curfew condition.   Mr O’Donnell has been convicted after a plea of guilty of assault on a child and three breaches of protection orders.  He is for sentence on 8 September 2014.  After his plea of guilty on  21 July 2014,  the  District  Court  Judge  heard  an  application  to  amend  bail conditions.

[2]      The Judge agreed to amend bail conditions relating to the address at which

Mr O’Donnell was staying but she refused to amend bail conditions relating to a

24 hour curfew.   She noted that bail conditions had been regularly amended since

30 May 2014 when bail was first granted.  And on 18 July 2014, Mr O’Donnell had

breached bail by using alcohol.

O'DONNELL v NZ POLICE [2014] NZHC 1834 [5 August 2014]

[3]      In this appeal Mr O’Donnell says the District Court Judge did not consider whether the bail condition, namely, the 24 hour curfew, was reasonably related to the risk that Mr O’Donnell may fail to appear in Court, interfere with witnesses or commit further offences.

[4]      Further, it said the Judge gave undue weight to an irrelevant consideration being the number of previous bail variations.  I accept in this case the Judge made an error in her approach and that she did not consider in detail the relevant bail issues. The appropriate course, therefore, is for me to set aside her decision and to consider the manner anew.  I note that in those circumstances the presumption of s 13 of the Bail Act would apply and that the onus would be on Mr O’Donnell to convince me that bail is appropriate.

[5]      As to the offending to which Mr O’Donnell pleaded guilty, first as to the assault on a child, Mr O’Donnell accepted that he hit the child, aged 12, on her head with a closed fist and the child had a red mark to her forehead and felt dizzy.

[6]      As to the breaches of protection order, the protection order was to protect Mr O’Donnell’s two children as well as his partner.   Mr O’Donnell’s partner and Mr O’Donnell were apparently intending to spend the evening together however Mr O’Donnell did not turn up until late or did not turn up until sometime after the agreed time and was intoxicated.  At that stage his partner told him to leave but he refused to do so.  Eventually she convinced him to leave but he remained outside the house abusing her.   After he left he sent the victim a number of text messages abusing and threatening her.

[7]      Mr O’Donnell has a very long list of convictions going back to the Youth Court in 1988.   They include convictions for violent offending, property offences and a large number for unreliable conduct including breaches of court release conditions,  escaping  from  police  custody,  breaches  of  periodic  detention  and breaches  of  bail.    Mr O’Donnell  has  been  sentenced  to  prison  on  a  number of occasions.

[8]      In support of the appeal, Mr O’Donnell says that there can be no issue with him failing to attend court.  He has attended court at each appearance so far relating to these charges.   While he may have attended court on each occasion relating to these charges, he does have a long history of refusing to obey court orders and failure to comply with his obligations on bail and other obligations set by the court. I agree, however, that Mr O’Donnell is not at risk of interfering with witnesses given he has now pleaded guilty.

[9]      Thirdly, he is obviously at high risk of reoffending.  He is a recidivist in the sense that he has constantly offended now for over 16  years.   The most recent offending  obviously  occurred  when  Mr O’Donnell  was  intoxicated  and  he  has already breached a term of his bail by drinking.

[10]     Further, the protection order is an order to protect his ex partner or his partner and their children.  It is a direction by the court to Mr O’Donnell.  It is to be obeyed. Mr O’Donnell has shown he is not restricted by such court orders when he cannot get his way he threatens and abuses.  He was fortunate, therefore, to have any form of bail.

[11]     The 24 hour curfew, I note, was not intended to be for a lengthy period because Mr O’Donnell will be sentenced in just over a month.

[12]     I am satisfied that if substantial restrictions are placed on Mr O’Donnell then he  can  be  granted  bail  and  that  those  restrictions  adequately  answer  the  s 13 presumption.  But I am satisfied that the 24 hour curfew imposed previously in the District  Court  is  actually  the  condition  that  should  have  been  imposed  on Mr O’Donnell.   It gives him some freedom but it reflects his conduct in the past including the most recent past.

[13]     The appropriate resolution is, therefore, to quash the decision by the Judge in the District Court to formally reflect the fact that she did not properly consider the legal issues but to in fact impose a 24 hour curfew condition and the other conditions imposed in the District Court.

[14]     For those reasons the appeal will be allowed but with the limited success I

have described.

Ronald Young J

Solicitors:

Public Defence Service, Wellington

Luke Cunningham & Clere, Crown Solicitors, Wellington