O'Donnell v R - [2011] NZCA 50

IN THE COURT OF APPEAL OF NEW ZEALAND

CA464/2010
[2011] NZCA 50

BETWEEN REGAN HENARE O'DONNELL
Appellant

AND THE QUEEN
Respondent

Hearing: 22 February 2011

Court: Arnold, Gendall and Allan JJ

Counsel: D H Quilliam for Appellant
K Laurenson for Respondent

Judgment: 7 March 2011 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of two years three months imprisonment imposed on the charge of aggravated robbery is quashed.
CWe substitute on that charge a sentence of two years imprisonment.
DThe cumulative sentence of eight months imprisonment imposed on other charges remains unaffected.

REASONS OF THE COURT
(Given by Allan J)

Mr O’Donnell appeals against a sentence of two years three months imprisonment imposed in the Rotorua District Court on 25 June 2010, on a charge of aggravated robbery. He was sentenced by Judge Weir at the same time on unrelated charges of driving while disqualified and of breach of release conditions. A cumulative sentence of eight months imprisonment was imposed on those charges, bringing the overall sentence to two years 11 months imprisonment. There is no appeal in respect of the sentences imposed on the unrelated charges.
Mr Quilliam argues in respect of the sentence imposed on the aggravated robbery charge that there was an unjustified disparity between that sentence and those imposed upon the appellant’s co-offenders. He contends also that Judge Weir departed from a sentencing indication given some time earlier by Judge Cooper.

Factual background

On 19 September 2008, the appellant, together with his co-offenders, Mr Le Mon and Mr Karini, drove to a residence in Taupo where they confronted the female victim who was at home alone, and engaged in cooking a meal. The offenders were known by the victim to be members of the Mongrel Mob. There is a dispute about the extent to which the regalia worn by the appellant and his co-offenders was visible at the time, but little turns on that.
The victim was threatened and menaced by the offenders, apparently because she and her partner were thought to have been narks. The summary of facts upon which Mr O’Donnell pleaded guilty claimed that he was carrying a baseball bat, and that he told the victim that he would return and kill her partner. Each of these contentions has subsequently been denied by the appellant; no separate charges were laid. Judge Weir noted that there was a dispute about the presence of the baseball bat, and seems to have discounted that aspect, but he did take into account the threat to kill without finding that the threat was made by the appellant, as distinct from one of his co-offenders. He considered that the fairest approach was to conclude that all three co-offenders were “in it together”. That assessment was plainly open to him.
There had been a claim by Mr Le Mon that the appellant was the local “sergeant of arms” and that he effectively called the shots. The appellant himself denied that. The Judge noted Mr Le…

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'Donnell v R

Details

AGLC: O'Donnell v R [2011] NZCA 50
Case: [2011] NZCA 50
Decision Date: 7 March 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Regan Henare O'Donnell, appealed against the sentence of two years and three months imprisonment imposed by the Rotorua District Court for a charge of aggravated robbery. The appeal was heard by Arnold, Gendall, and Allan JJ, with D H Quilliam representing the appellant and K Laurenson representing the Crown. The court allowed the appeal, reduced the sentence on the aggravated robbery charge to two years imprisonment, and left the cumulative sentence on the other charges unaffected. The appellant argued that there was an unjustified disparity in the sentencing compared to his co-offenders and that the sentencing judge departed from an earlier sentencing indication given by another judge. The court found that the appellant's efforts at self-improvement were modest, and there was no proper basis to disturb the sentence on disparity grounds. The court also found that the appellant was entitled to rely on the earlier sentencing indication, and it was proper to adjust the sentence on appeal to reflect the appellant's likely reliance on the indication when he entered his guilty plea.

The final orders of the court were to allow the appeal, quash the sentence of two years and three months imprisonment imposed on the charge of aggravated robbery, substitute a sentence of two years imprisonment, and leave the cumulative sentence of eight months imprisonment imposed on the charges of driving while disqualified and of breach of release conditions unaffected.

Orders