O'Keefe v Police - [2013] NZHC 613

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-5 [2013] NZHC 613

BETWEEN JAMES WILLIAM O'KEEFE Appellant

ANDPOLICE Respondent

Hearing: 26 March 2013
(Heard at Wellington)

Counsel: C J Tennet for Appellant
S A H Bishop for Respondent

Judgment: 27 March 2013

JUDGMENT OF HON JUSTICE KÓS

[1] James William O’Keefe pleaded guilty in the District Court to charges of assault with a weapon,1 common assault, cultivation of cannabis, causing a vehicle to undergo sustained loss of traction and dangerous driving. Judge Rea sentenced him to six months’ imprisonment on the charge of assault with a weapon. On the other four charges he imposed concurrent sentences of three months’ imprisonment, cumulative on the six months’ for assault with a weapon, making a total sentence of nine months’ imprisonment.2 Home detention was not considered appropriate. Mr O’Keefe was also disqualified from holding a driver’s licence for six months.

[2] Mr O’Keefe does not appeal or object to the three month sentence imposed cumulatively. But he contends that the six months imposed for assault with a weapon was manifestly excessive. He submits that a starting point of no more than six months was appropriate, rather than the “eight or nine months” selected by the
Judge.

1 Crimes Act 1961, s 202C(1)(a).
2 Police v O’Keefe DC Napier CRI-2012-041-002403, 5 February 2013 at [4].

O'KEEFE v POLICE HC NAP CRI 2013-441-5 [27 March 2013]

Circumstances of the offending

[3] Mr O’Keefe is 37 years old. He has been in a relationship with his partner for four years. He has two children from a previous relationship and an infant child with his current partner.

[4] The driving charges relate to an incident on 8 May 2012. Mr O’Keefe drove down a residential street in Napier at some speed, undertaking a “burnout” manoeuvre and several “fishtails”. At one point the rear of his car ended up on the lawn of a resident who was playing soccer with two young children at the time. Other motorists on the street were forced to stop their vehicles to avoid him.

[5] The assault and cultivation of cannabis charges arose out of an incident on

28 May 2012 when Mr O’Keefe and his partner were in bed. They had an argument which resulted in the appellant punching her in the arm while she breastfed their child. The force left her arm bruised. When Police attended, they noticed a strong smell of cannabis wafting from the garage. Inside they found seven large cannabis plants growing in a hidden cultivation unit. Mr O’Keefe admitted it was his but said it was used to manage back pain.

[6] The assault with a weapon charge relates to an incident on 8 October 2012. This occurred while Mr O’Keefe was on bail on the other charges just related. The victim and Mr O’Keefe had had altercations in the past. The victim was crossing the street to walk to visit a neighbour’s house. The appellant was standing outside in his driveway. The appellant…

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: [2013] NZHC 613
Decision Date: 27 March 2013

CaseChat Overview and Summary

James William O'Keefe appealed against his sentencing for various charges, including assault with a weapon, common assault, cultivation of cannabis, causing a vehicle to undergo sustained loss of traction, and dangerous driving. The original sentencing was carried out by Judge Rea in the District Court, who imposed a six-month imprisonment term for assault with a weapon, and three-month imprisonment terms for the other charges, which were concurrent with the six-month term, resulting in a total sentence of nine months' imprisonment. O'Keefe argued that the six-month sentence for assault with a weapon was manifestly excessive.

The court considered the appropriate starting point for the assault with a weapon charge and whether the sentence imposed was manifestly excessive. The court found that a starting point of six months' imprisonment was appropriate, considering the facts of the case and the precedents set by comparable cases. The court also took into account O'Keefe's prompt guilty plea, his previous convictions for violence, and the fact that the offence was committed while on bail for other charges. Ultimately, the court determined that a six-month imprisonment term for assault with a weapon was appropriate.

The appeal was dismissed, and the original sentence imposed by Judge Rea was upheld.

Orders