O'Keefe v Police
[2021] NZHC 1613
•1 July 2021
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2021-441-11
[2021] NZHC 1613
JAMES WILLIAM O’KEEFE v
NEW ZEALAND POLICE
Hearing: 1 July 2021 Appearances:
R B Phillips for Appellant M Mitchell for Respondent
Judgment:
1 July 2021
JUDGMENT OF COOKE J
[1] Mr James O’Keefe appeals against his sentence of two years and three months’ imprisonment on charges of:1
(a)assault in a family relationship;2
(b)two breaches of a protection order;3
(c)attempting to pervert the course of justice.4
1 R v James William O’Keefe [2021] NZDC 9891.
2 Crimes Act 1961, s 194A.
3 Family Violence Act 2018, ss 90(a), 9, 112(1)(a).
4 Crimes Act 1961, s 117(e).
O’KEEFE v NEW ZEALAND POLICE [2021] NZHC 1613 [1 July 2021]
Factual background
[2] The appellant and the complainant have been in a long and complicated relationship. A protection order has been in place since 31 May 2012 against the appellant in favour of the complainant.
[3] On 9 February 2020 the appellant invited the complainant to come on a holiday with him, and to bring their daughter as well as the complainant’s elder daughter. She agreed. The complainant, appellant and the two children drove from Hastings to Invercargill to visit friends and associates.
[4] On 13 February 2020 the complainant was packing the car for their return. The appellant approached her and an argument broke out between them over the moving of gear within the car. The appellant shoved the complainant hard, which caused her to fall. She was caught by her elder daughter and received no injuries. This gave rise to a charge of assault on a person in a family relationship. The appellant also threatened to put a bullet in the complainant’s mother’s head during this argument.
[5] The complainant and children subsequently went to bed and awoke at approximately 1.30 am the next day in order to be on time for the ferry from Picton. The complainant drove the car while the appellant slept with both children in the back. As she drove through Cromwell, the complainant stopped the car and got out, advising the appellant that she could not drive any further. The appellant became enraged. He yelled that she had a death wish. He made threats about using a gun on the complainant and began to abuse her in front of the children. One of the children called the police, as did a passing motorist.
[6] The appellant was located by the police as he drove towards Alexandra. When spoken to, the appellant said that he had been attacked by the complainant and that she was angry and upset with him and he had been pleading to get in the car with her. He denied making any threats or assaulting her.
[7] The appellant was subsequently charged with breaching the protection order and was due to appear for the charges on 27 July 2020. On 10 July 2020 the appellant and complainant met at a hotel. The pair socialised, and during the course of the
evening the appellant asked the complainant to write an affidavit to the court. His comments included “can you keep me out of jail” and “come on hun you don’t want to send the man in your life to jail”. The complainant refused.
[8]On 12 July 2020 the appellant sent a text message which said:
…fight for us; so I don’t go to jail me dad going to lawyers next week do affidavits stop me going jail can you think about our family furure before you say no hun please:
[9] On 19 July 2020 the complainant texted the appellant and told him not to text her anymore, and that she was “done”, indicating she did not want any further contact from him.
[10] On 22 July 2020 the complainant was at her workplace in Hastings. The appellant was still texting her, asking her for her whereabouts but she did not respond. The appellant drove around various locations in Hastings attempting to find the complainant. At 11.50 am that day he arrived at the complainant’s workplace and approached her, now telling her to write an affidavit to the court saying the incident in the South Island did not happen. He then showed her a handwritten list of all the businesses he had visited when trying to track her down. The complainant then sought assistance from a colleague and both told the appellant to leave repeatedly. He eventually did.
[11] On 23 July 2020 at 10.03 am the appellant sent another text message with the request that the complainant go to court and get the protection order “dropped” and to write “James never assaulted me and you don’t need protection from me”. These texts morphed gradually over the next few days into “goodbye” texts which implied he was going to commit suicide. This gave rise to a further contravention of the protection order.
[12] On 26 July 2020 the appellant approached the complainant on Facebook messenger. He sent a message which stated how the police were enemies and to not let them put him away.
[13] Between 19 and 28 July 2020 the appellant had sent approximately 50 text messages to the complainant, to which she did not respond.
[14] On 30 July 2020 the appellant was arrested. In explanation he stated that the complainant was lying, that she had volunteered to write an affidavit for him, and that he had showed up to her work by coincidence. The appellant was charged with attempting to pervert the course of justice.
District Court decision
[15] Judge B M Mackintosh adopted a starting point of two years and three months’ imprisonment on the lead charge of attempting to pervert the course of justice.5 She identified a number of aggravating features, namely that:
(a)there was a “sustained and determined effort” made by the appellant to have the complainant retract her statement, and that this had the “hallmarks of emotional blackmail”;6
(b)the effect on the victim — the complainant had had a breakdown, and the type of psychology used by the appellant on the complainant was described by the Judge as “quite manipulative”;7
(c)the appellant had sent over 50 texts, contacted the complainant by Facebook, and then tried to find out where she was working and was successful in doing so — “stalking her down essentially”.8
(d)the contact the appellant had with the complainant had to be seen against the history of family harm and the wider family relationship history. As such, the appellant was clearly intending to avoid criminal proceedings;9
5 R v O’Keefe, above n 1 at [30].
6 At [24].
7 At [25].
8 At [25].
9 At [26].
(e)it was also relevant that the complainant was subject to a protection order when the appellant undertook this behaviour.10
[16]She then applied the following uplifts:
(a)six months for the attempt to pervert the course of justice also involving breaches of the protection order;
(b)three months for assaults and threats and the other matters;
(c)three months for previous history of offending.
[17]The following discounts were then applied:
(a)20 per cent for the guilty plea;
(b)five percent for each of the rehabilitation efforts.
[18] This resulted in an end sentence of two years and three months’ imprisonment. Concurrent sentences of three months for the assault and six months for the breaches of the protection order were imposed. The Judge noted that the end sentence would fall outside the range for home detention, but that the time the appellant had spent in custody would be factored in.
Approach on appeal
[19] The appeal is brought under s 244 of the Criminal Procedure Act 2011.11 Under s 250(2) the appeal must be allowed if the court is satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.12 The focus is on the ultimate end sentence, and whether it is manifestly excessive, rather than the steps taken in the sentencing process.13
10 At [26].
11 Criminal Procedure Act 2011, s 244(1).
12 Section 250(2).
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[20] The appellant’s key argument on appeal is that the starting point adopted by the District Court was too high. Mr Phillips refers to a number of precedents and argues that a starting point of between 20 months and 24 months’ imprisonment was more appropriate. He further argues that there should have only been a further three month uplift for breaches of the protection order. The three month uplift for the assault, threats and other matters is not challenged, and neither is the three month uplift for previous convictions. The discounts for guilty pleas, remorse and rehabilitation are also accepted. It is submitted, however, the higher starting point, and excessive uplift for the breaches of the protection order have resulted in a manifestly excessive sentence, and that a sentence of 20 to 24 months’ imprisonment was more appropriate.
Assessment
[21] They key issue is the starting point on the attempt to pervert the course of justice charge. Of the authorities that have been referred to by counsel it seems to me that the decisions of the Court of Appeal in Maney v R14 and Lufe v R15 provide the greatest guidance.
[22] In Maney the Court reviewed a number of authorities relating to this kind of offending, including previous decisions of the Court of Appeal. In that case Mr Maney had telephone discussions with his mother to the effect that she would persuade another person to persuade a witness to change his evidence. The mother duly did so but the witness did not agree and Mr Maney was subsequently convicted. The Court noted that the attempt to pervert the course of justice was neither direct, nor successful.16 It did not agree with the starting point of two years three months, and held that a starting point of greater than two years could not be justified.
[23] Lufe concerned a domestic relationship, with the offending including injuring with intent to cause grievous bodily harm, breaching release conditions and attempting to pervert the course of justice. The attempt to pervert the course of justice arose because Mr Lufe sent text messages to the victim attempting to persuade her to
14 Maney v R [2018] NZCA 193.
15 Lufe v R [2018] NZCA 327.
16 Maney v R, above n 14 at [22].
withdraw her allegations. The Court referred to Maney but concluded that the attempt in that case was direct so that a sentence of more than two years was justified.17
[24] For similar reasons the starting point adopted by the District Court Judge here of two years three months was not too high simply on the basis of the conduct itself. Whilst the attempts made by the appellant were unsuccessful, they were nevertheless direct. Moreover they were repeated, and became ominous given they became associated with acts of physical stalking. There was no threat of physical violence, but there was psychological intimidation of a kind that can be relevant in family violence offending. For that reason I do not accept that the starting point adopted was too high.
[25] There is the further factor that this conduct also involved breaches of the protection order. This was a separate offence, and was addressed by the Judge by an uplift of six months which led to an effective starting point of two years nine months. This forms part of Mr Phillips’ criticism that the ultimate starting point of two years nine months was too high.
[26] Whilst I accept that it is on the high end, the conduct by itself would justify a starting point of two years six months rather than two years three months, and when the breach of the protection order is factored in, an assessment of a starting point of at two years nine months for this offending overall is not outside the available range.
[27] The Judge was then required to address the other offending. The initial breach of the protection order might not be regarded as serious given that the holiday was consensual, but it ultimately involved an assault (albeit a minor one) which was accompanied by threats which took place in front of the children. A three month uplift was justified in those circumstances. The Court has then also uplifted a further three months for the previous offending. By itself that cannot be criticised. There is also no criticism of the discounts given.
[28] I accept that the ultimate sentence of two years and three months was on the higher side, but I do not accept that it is manifestly excessive. Attempting to pervert
17 Lufe v R, above n 15 at [24].
the course of justice is always a serious charge. When it occurs in a family violence context when the offending is directed to pressurising a victim not to give evidence against the offender, the Court will react firmly particularly when there is a protection order in place. Here the conduct involved relentless and highly psychologically pressurising conduct to the point of physical stalking. Had the underlying offending been more serious the position would have been worse. But I still accept that this is serious offending, and that the sentence is not out of range.
[29]The appeal is dismissed.
Cooke J
Solicitors:
Bramwell Bate Lawyers, Hastings for the Appellant Crown Solicitor, Napier for Respondent
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