O'Dowd v The Queen

[2004] NZCA 227

IN THE COURT OF APPEAL OF NEW ZEALAND

CA344/03

THE QUEEN

v

RA ALBERT O'DOWD

Coram:William Young J
Chambers J
O'Regan J

Counsel:Appellant in Person

S E McKenzie for Crown

Judgment (On the papers)       16 September 2004 

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]       Mr O’Dowd was convicted of the murder of Conquest Rhett Tuau after a trial by jury in 1994. He was sentenced by Gallen J in the High Court at Napier to life imprisonment with a minimum term of imprisonment of 13 years.  Mr O’Dowd has filed an application for leave to appeal against his sentence but only in respect of the minimum non-parole period imposed.  The appeal was filed more than eight and a half years out of time. 

[2]       This application for leave to appeal has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions, which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

[3]       When the Court file was referred to us for consideration, it was apparent that the appellant had failed to file written submissions, as requested, in support of the appeal.  Submissions had, however, been filed by Crown counsel.  We therefore issued a minute on 13 August 2004, giving the appellant a further opportunity to file submissions by 3 September 2004, and deferred our consideration of the matter until after that date.  No submissions were received. 

Extension of time for appeal

[4]       Two grounds for appealing out of time were advanced by the appellant in his notice of application, namely:

(a)       That he did not get an oral hearing and had been under the impression that work was still being done on his case.

(b)        That, at the time of sentencing, the Court was not au fait with the “minimum non-parole” provision under which the appellant was sentenced, as it was new in 1994. Later cases have shown that the minimum non-parole sentence imposed by the Court was manifestly excessive, as the crimes in these other cases have been more heinous than that committed by the appellant but attracted lesser sentences: the appeal, thus, could not have been filed before these cases were decided.

Imposition of minimum term of imprisonment

[5]       The appeal against the minimum non-parole period was advanced on that same ground, namely, that the provision under which the appellant was sentenced was new in 1994 and that in light of subsequent sentencing under the same provision a minimum non-parole period should not have been imposed.  The appellant also commented that the Judge did not take account of the fact he took the victim to the hospital himself.  The appellant contended that a sentence of mandatory life imprisonment (without more) would have been more appropriate in the circumstances of his case.

The facts

[6]       Crown counsel, Mr McKenzie, summarised the facts, based on the Judge’s sentencing notes and the deposition evidence.  Due to the delay in the filing of the appeal, the trial file is no longer available.  The summary which follows is based on the summary prepared by Crown counsel.

[7]       On the morning of 18 February 1994 the appellant, with the assistance of a Mr Jacobs, beat the victim for approximately two hours, repeatedly punching and kicking him about the head. Evidence at trial suggested there were a significant number of blows and that the victim was crying during the two-hour period.  The victim died in hospital later that morning as a result of the injuries he sustained during the beating.

[8]       A relative of the appellant witnessed the aftermath of the attack after coming to the scene at the request of Mr Jacobs.  His evidence at depositions described the victim lying on the floor surrounded by blood, which spread in a two-metre radius around him.  Blood was also splattered up the walls and had drenched the victim’s clothing.  The witness said he thought the victim was beyond recovery. He described the appellant sitting in a chair drinking a beer and looking at the victim.  His boots were covered with blood and he had blood up to the knees of his pants.  When the victim attempted to raise himself from the floor, the witness said, the appellant gave him one final boot in the head, causing him to slump back on the floor.  The state of the victim was such that the witness felt physically ill and had to leave the room. 

[9]       The appellant took the victim to the hospital but he died not long after his arrival.  A motive for the attack was not established at trial.

Section 80 Criminal Justice Act 1985

[10]     In sentencing the appellant to the minimum non-parole period, Gallen J applied s80 of the Criminal Justice Act 1985.  The section provided:

(1)       Subject to subsections (2) and (3) of this section, if a court sentences an offender to an indeterminate sentence, it may, at the same time, order that the offender serve a minimum period of imprisonment of more than 10 years.

(2)       The court shall not impose a minimum period of imprisonment under section (1) of this section unless it is satisfied that the circumstances of the offence are so exceptional that a minimum period of imprisonment of more than 10 years is justified.

(3)       Where the court imposes a minimum period of imprisonment under subsection (1) of this section, the duration of the period imposed shall be the minimum period that the court considers to be justified having regard to the circumstances of the case, including those of the offender.

…….

(7)       Where the court makes an order under this section, it shall give the offender written reasons for so doing and the offender may appeal against the imposition of the minimum period of imprisonment in the same manner as he or she may appeal upon conviction against the sentence or sentences imposed.

High Court Sentencing

[11]     Gallen J classified the offending as “exceptional” considering the length and the type of beating together with the evidence given by the appellant’s relative, particularly that relating to the condition of the victim after the attack and the final kick inflicted by the appellant.

[12]     The Judge noted that the appellant had a substantial criminal record including prior convictions for violence.  The Judge acknowledged, however, that the appellant has made an effort to establish a business and that there was evidence of previous good character.  The Judge noted also that the appellant had taken the victim to hospital and not merely left him there, but taken him inside.  He considered as well that the appellant had written to the victim’s family apologising for what had happened and that he was apparently remorseful.  These matters, the Judge said, while entitling the appellant to some credit, did not outweigh the horrific circumstances of the crime.

[13]     The Judge considered that the purpose of s80 is to meet public concerns about particular types of offending.  The Judge referred to two prior decisions (not cited) where a 15 year non-parole period had been imposed for murder and one decision where the same period had been imposed for rape.  The Judge took the view that the appellant’s case was not as bad as the aforementioned murder cases but, reiterating the sustained nature of the attack, its degrading elements and the vulnerability of the victim toward its end, thought it deserving of a minimum non-parole period of 13 years. 

Crown submissions

Extension of Time for Appeal

[14]     The Crown identified the following matters as relevant to an application for extension of time: the strength of the proposed appeal, the length of the delay, the reasons for it and the impact on the administration of justice: R v Leger CA22/01 17 May 2001.

[15]     The Crown contended that the delay in this case was excessive and that there appeared to be no genuine reason for it.  In respect of the appellant’s contention that he did not get any oral hearing, the Crown noted that the charges against the appellant were the subject of a five-day trial at which he was represented by counsel.  Further, a “memorandum of counsel on sentence” was provided to the sentencing Judge which consisted of a letter from the appellant outlining a number of matters he wished to have considered at sentencing, and these were duly noted by the Judge.  The Crown also doubted that the appellant was under the misapprehension that his case was still “being worked on” eight and a half years later.

[16]     The Crown submitted that s80 was applied correctly by Gallen J.  In any event, the Crown argued, extension of time could not be granted merely on the basis that the sentence arose from a view of the law now shown to be erroneous.  Rather, the Crown submitted, the appellant must show that there are special circumstances, particular to his case, which lead to the conclusion that justice requires that an extension be granted: R v Knight (1997) 15 CRNZ 332, 336.

[17]     Further, the Crown submitted that there is no public interest in reviewing the principles relating to the application of s80 as it was substantially amended in 1999 and repealed in 2002.  There is, however, public interest in the final determination of litigation.  The impracticality of leaving the door open for offenders to appeal many years after they are sentenced is illustrated by the difficulties the Crown faced in preparing submissions, with files having been destroyed and limited information still available on the case.

Imposition of minimum term of imprisonment

[18]     Having regard to R v Hapi [1995] 1 NZLR 257 and R v Wilson [1996] 1 NZLR 147, 151 Crown counsel submitted that the Judge adopted the correct approach to s80. In Hapi, considerable emphasis was put on the exceptionality of offending warranting a s80 minimum term of imprisonment and in Wilson, the Court flagged relevant factors as including an unusual level of premeditation, extraordinary brutality, depravity or callousness and multiple killings.  The Crown argued that it was open to the Judge, on the basis of the brutality and prolonged nature of the beating and the additional degrading features of the offence, to conclude the murder was of an exceptional kind warranting a term of imprisonment in excess of ten years.  Further, the Crown submitted that the Judge properly took account of the appellant’s previous convictions for violent offending as well as mitigating factors, including the fact the appellant had taken the victim to hospital, to arrive at a minimum term of 13 years imprisonment.

[19]     The Crown submitted that the sentence was consistent with sentences imposed under the same section in other cases prior to the appellant’s.  The Crown referred to three cases (believed to be those to which the Judge also referred) in which minimum periods of imprisonment of 15 years were imposed.  The Crown noted that the Judge properly distinguished the cases on the basis that there were elements of planning in those cases that did not appear in the present case and imposed a lesser minimum term of imprisonment to reflect this.  

Discussion

[20]     We accept Crown counsel’s submission that there is no good reason to extend the time for the appellant to file his appeal by over eight years.  The appellant clearly had a High Court trial and a sentencing hearing in the normal manner, so there is nothing in his argument that he did not get an oral hearing.  He has not previously appealed to this Court.  There is also no basis for his argument that he needed to delay his appeal for over eight years after his sentencing to await other decisions under s80. 

[21]     In a similar case which recently came before the Court,  R v Lory CA472/03 19 August 2004, the Court refused leave where the appeal was filed seven years out of time.  That case was an appeal against a sentence for manslaughter, where the appellant had set fire to a hotel, causing the deaths of six people.  William Young J, giving the judgment of the Court said (at [9]):

[9]       Time objections to sentence appeals are seldom taken in this Court.  It is, however, not usual for an offender to wait seven years before seeking leave to appeal.  This seven year delay is no light matter.  We say this particularly given the likely feelings of those who were injured in the fire but survived and the relatives and loved ones of the six people who died.  Given the tragic consequences of the appellant’s offending, the finality principle is of high importance and we would require much persuasion before allowing the case to be re-opened.

[22]     We believe that the approach taken in Lory should be taken in this case as well.  In fact, the delay is even longer than it was in Lory.

[23]     In any event, we are satisfied that the trial Judge was justified in imposing a 13 year minimum non-parole period in this case.  There is no basis for the appellant’s contention that later cases have illustrated that the Judge was in error.

Decision

[24]     We decline the appellant’s application for leave to appeal.

Solicitors:
Crown Law Office, Wellington