O'Keefe v Police - [2021] NZHC 1613

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…

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: [2021] NZHC 1613
Decision Date: 1 July 2021

CaseChat Overview and Summary

James O’Keefe appeals against his sentence of two years and three months' imprisonment, which was imposed following his convictions for assault in a family relationship, two breaches of a protection order, and attempting to pervert the course of justice. The appeal was heard by Cooke J in the High Court of New Zealand. The central legal issue was whether the starting point for sentencing, as determined by the District Court, was too high, leading to a manifestly excessive sentence. O'Keefe's counsel argued that a starting point between 20 months and 24 months would have been more appropriate, considering the precedents cited. The Court considered the nature of the offence, which involved direct and repeated attempts to influence the complainant, combined with breaches of a protection order, and concluded that a starting point of two years and three months was justified. The Court found that the overall sentence, while on the higher side, was not manifestly excessive given the seriousness of the offences, particularly in the context of family violence.

The reasoning of the Court was grounded in the precedents set by the Court of Appeal in Maney v R and Lufe v R, which provided guidance on similar offences. The Court found that the appellant's conduct, though unsuccessful, was direct and part of a pattern of psychological intimidation. Additionally, the breaches of the protection order warranted an uplift in the starting point. Cooke J concluded that the sentence, while high, fell within the appropriate range for such serious offences. The appeal was dismissed as the sentence was not found to be manifestly excessive.

Orders