O'Donnell v Police - [2012] NZHC 997

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000017 [2012] NZHC 997

BETWEEN BRENDON PAUL O'DONNELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 9 May 2012

Counsel: H A Evans and S R Grieve for Appellant
M A V Raj for Respondent

Judgment: 14 May 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.30 pm on the 14th day of May 2012.

RESERVED JUDGMENT OF GENDALL J

[1] The appellant pleaded guilty in the District Court at Christchurch on 20

September 2011 to one crime of burglary, two of receiving stolen property, one offence of driving whilst his licence was suspended on a third and subsequent occasion and breach of a sentence of community work.

[2] He was sentenced by District Court Judge A D Garland to 11 months’ home detention, 200 hours’ community work, ordered to pay reparation of $180 and disqualified from holding a driver’s licence for two years.

[3] The appeal is against the sentence imposed. Counsel contends it was manifestly excessive and reached by District Court Judge Garland adopting a wrong
and invalid process.

O'DONNELL V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000017 [14 May 2012]

Background facts

[4] In the early hours of the morning of 8 November 2010 the appellant entered premises in Hart Street, Christchurch and stole 17 car batteries from a yard, having a total value of $170. When he appeared on that day he was remanded on bail. Six weeks later, on 18 December 2010, the garage of a neighbour of the appellant was burgled and property to the value of $700 taken. Within a short time thereafter the appellant pawned two items of property that had been taken.

[5] On 5 January 2011 the same neighbour’s garage was burgled again and items to the value of $2,800 were stolen, including a mountain bike which was pawned 10 days later by the appellant. He was not charged in relation to those two matters until July 2011. He denied being involved in the burglary but admitted receiving items from his partner, who he said had received them in payment to services that she had rendered to someone else. He was charged only with receiving the items stolen on
18 December 2010 and 5 January 2011.

[6] The appellant’s driver’s licence had been suspended for three months on

9 December 2010. On the afternoon of 31 December 2010 he was apprehended by the police whilst driving a motor vehicle in Christchurch. He gave as an explanation that he had only been a passenger in a vehicle, which was being driven by his partner but she had some form of seizure so he drove her to seek medical assistance. He pleaded guilty to that charge.

[7] Earlier, on 6 July 2010, the appellant had been convicted of being unlawfully in an enclosed yard and was sentenced to 50 hours’ community work. He breached the conditions of that sentence by failing to report to the…

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.

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Details

Case: [2012] NZHC 997
Decision Date: 14 May 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of O'Donnell v Police was heard, wherein the appellant, Brendon Paul O'Donnell, appealed against the sentence imposed on him by the District Court. O'Donnell was sentenced to 11 months of home detention, 200 hours of community work, ordered to pay reparation of $180, and disqualified from holding a driver’s licence for two years, following his guilty plea to various charges including burglary, receiving stolen property, driving while his license was suspended, and breach of a community work sentence. The appeal contended that the sentence was manifestly excessive and that the sentencing process was flawed.

The legal issues before the court were whether the sentence imposed by the District Court was appropriate and whether the process used by the District Court to arrive at the sentence was valid. Specifically, the court needed to determine if the starting point for the driving charge was correctly assessed, whether the discount for the guilty pleas was appropriate, and if the overall sentence was proportionate to the nature and extent of the offending.

The court examined the appellant's history of offending, which included over 60 convictions spanning over 20 years, and his lack of insight and victim empathy. The court found that while the starting point for the driving charge was too high, the overall starting point for the series of offences was justified at two and a half years. The court also determined that the credit given for the guilty pleas was excessive, but the total sentence of 11 months of home detention, along with 200 hours of community work, was appropriate given the totality of the offending. The court concluded that the sentence, while lenient, was not manifestly excessive and dismissed the appeal.

In summary, the High Court upheld the sentence imposed by the District Court, finding it to be a justified outcome given the appellant's extensive criminal history and the nature of the current offences. The court's decision was based on a detailed assessment of the sentencing process and the specific circumstances of the case.

Orders