O'Neil v Police - [2022] NZHC 1460

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2022-404-000136

[2022] NZHC 1460

BETWEEN
TRACY ANN O’NEIL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 June 2022

Appearances:

J Verry for the Appellant

A N Dawson for the Respondent

Judgment:

21 June 2022

JUDGMENT OF TAHANA J

[appeal against sentence]

This judgment was delivered by me on 21 June 2022 at 4.00pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
J Verry, Barrister, Auckland Meredith Connell, Auckland

O’NEIL v NEW ZEALAND POLICE [appeal against sentence] [2022] NZHC 1460 [21 June 2022]

Introduction

[1] After pleading guilty, Ms O’Neil was sentenced in the District Court at Waitakere to 20 months’ imprisonment for the following charges:1

(a)Two charges of refusing a blood specimen to be taken (third or subsequent);2

(b)Disorderly behaviour likely to cause violence;3

(c)Theft (under $500);4 and

(d)Obstructing police.5

[2] The Judge also convicted and discharged Ms O’Neil on one charge for exceeding the speed limit6 and one charge for disorderly behaviour.7

[3]Ms O’Neil appeals on the basis the Judge erred by:

(a)imposing a manifestly excessive uplift of four months’ imprisonment for her previous offending; and

(b)declining to commute the end sentence to home detention.

[4]The Crown opposes the appeal and says:

(a)the uplift was within the available range; and

1      Police v O’Neil [2022] NZDC 5316.
2      Land Transport Act 1998, s 60(3): maximum penalty two years’ imprisonment or a $6,000 fine. The court must also order the person be disqualified from holding or obtaining a driver licence for more than one year.
3      Summary Offences Act 1981, s 3: maximum penalty three months’ imprisonment or a $2,000 fine.
4      Crimes Act 1961, ss 219 and 223(d): maximum penalty three months’ imprisonment.
5      Summary Offences Act 1981, s 23(a): maximum penalty three months’ imprisonment or a $2,000 fine.
6      Land Transport Act 1998, ss 40 and 133: maximum penalty a $1,000 fine.
7      Summary Offences Act 1981, s 4(1)(a): maximum penalty a $1,000 fine.

(b)the sentence of imprisonment was reflective of the need to protect community safety given Ms O’Neil has:

(i)committed similar offences before; and

(ii)previously offended while on bail.

Background

[5]Ms O’Neil’s offending occurred on five different dates:

(a)On 22 May 2021:

(i)Ms O’Neil stole items worth $31 from a supermarket.

(ii)That evening, Ms O’Neil was stopped by police following complaints from members of the public about her manner of driving. Police asked Ms O’Neil to provide a blood sample which she refused. This was her sixth charge of refusing a blood specimen.

(b)On 5 June 2021, Ms O’Neil was on a public street very intoxicated. She was swearing and yelling. Ms O’Neil did not comply with police instructions and was arrested for disorderly behaviour.

(c)On 20 August 2021, Ms O’Neil’s vehicle was captured by surveillance equipment driving 147 km per hour in an area with an 80 km per hour speed limit.

(d)On 22 October 2021, Ms O’Neil was on the footpath with her parked vehicle. When police arrived, she…

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: [2022] NZHC 1460
Decision Date: 21 June 2022

CaseChat Overview and Summary

Tracy Ann O'Neil appeals against her sentence imposed by the District Court following her guilty plea to multiple charges, including refusing to provide a blood specimen and obstructing police. The primary issues are whether the four-month uplift for previous convictions was excessive and whether the sentence should have been commuted to home detention. The Crown argues that the uplift was within the appropriate range and that a term of imprisonment was necessary for community protection.

The court found that the four-month uplift for previous convictions, which included multiple drink driving related offences, was not manifestly excessive. The court reasoned that Ms O'Neil's history of similar offending justified the uplift, and the end sentence of 20 months' imprisonment was not excessive. The court noted that a slight change to the uplift would amount to mere tinkering with the Judge's decision.

Regarding the commutation to home detention, the court held that the Judge was justified in declining to commute the sentence. The court reasoned that, given Ms O'Neil's history of drink driving related offences and previous home detention sentence, a term of imprisonment was necessary to protect public safety and to denounce and deter further offending. The court also noted that Ms O'Neil had made limited efforts towards rehabilitation, and the Judge was not satisfied that home detention would effectively reduce the risk of re-offending.

The appeal was dismissed, and the original sentence of 20 months' imprisonment was upheld.

Orders