O'Neil v Police
[2022] NZHC 1460
•21 June 2022
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 started yelling and swearing and walked into the middle of the road. When the tow truck arrived, she locked herself in her car. After getting out of the car she swore at the tow truck driver and again stood in the middle of the road blocking traffic.
(e)On 3 January 2022, Ms O’Neil was driving north on State Highway 1. The car was the subject of multiple driving complaints. The police located Ms O’Neil stopped outside a shopping centre. She admitted to drinking prior to driving and showed signs of recent alcohol intake. Ms O’Neil agreed to accompany the police to the police station but once there, refused to do an evidential breath test or blood test. This was Ms O’Neil’s seventh charge for refusing a blood specimen.
[6] Ms O’Neil has a long conviction history, including 171 convictions, 34 of which have resulted in sentences of imprisonment. The previous convictions include:
(a)drink driving offences, including:
(i)1993: one month imprisonment sentence for excess breath alcohol;
(ii)1995: two month imprisonment sentence for excess breath alcohol;
(iii)2007: community based sentence for excess breath alcohol; and
(iv)2014: home detention sentence for driving under the influence.
(b)multiple driving while disqualified offences;
(c)dangerous driving offences including careless or inconsiderate driving causing death or injury in 2005; and
(d)multiple shoplifting, theft and burglary charges.
Sentencing decision
[7] The Judge identified the second refusal to provide a blood specimen as the lead charge and adopted a starting point of 18 months’ imprisonment.8 She then imposed:
8 New Zealand Police v O’Neil [2022] NZDC 5316 at [30].
(a)a six month uplift for the other offending, including the other refusing a blood specimen charge;9 and
(b)a four month uplift for Ms O’Neil’s previous convictions.10
[8] This resulted in a cumulative starting point of 28 months’ imprisonment. The Judge then applied a 25 per cent discount for the early guilty pleas and an additional one month discount for Ms O’Neil’s rehabilitative efforts.11 This led to an end sentence of 20 months’ imprisonment.
[9] The Judge declined to commute the sentence to home detention noting that despite a previous home detention sentence, Ms O’Neil had offended involving risks to public safety. Given Ms O’Neil had declined a therapeutic alternative to a term of imprisonment (which was her choice), the Judge considered that a punitive approach to protect community safety was necessary.12
[10] The sentences were imposed concurrently and the Judge disqualified Ms O’Neil from driving for 18 months backdated to 3 January 2022 (when she was remanded in custody following the most recent offending).13
[11] The Judge compared Ms O’Neil’s offending and circumstances to that in Whitehead v New Zealand Police,14 where the defendant was convicted of similar offending but had successfully taken significant steps to address her alcohol dependency during 16 months of judicial monitoring under strict bail conditions. The Judge said here, Ms O’Neil has not yet taken any steps for which she could receive credit.15
9 At [30].
10 At [31].
11 At [32].
12 At [33].
13 At [35].
14 Whitehead v New Zealand Police [2021] NZHC 734.
15 Police v O’Neil [2022] NZDC 5316 at [22].
[12] The Judge noted that there was “an extreme risk to the safety of not just [Ms O’Neil], but those in the community” if Ms O’Neil did not stop her pattern of offending.16
Approach on appeal
[13] Ms O’Neil has an appeal as of right under s 244 of the Criminal Procedure Act 2011 (the Act). Section 250 of the Act sets out how a court is to determine a sentence appeal. An appeal must be allowed if the court is satisfied that there is an error in the imposed sentence and that a different sentence should be imposed.
[14] The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:17
…the standard of appellate review in sentence appeals… requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason, it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only the sentence enjoys an appropriate margin of appreciation.
[15] In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.18 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.19 A Judge on appeal should not intervene where the “sentence imposed was within a range that could be properly justified by accepted sentencing principles”.20
[16] In Palmer v R, where the appeal was against the sentencing Judge’s refusal to commute a sentence of imprisonment to home detention, the Court of Appeal observed:21
16 At [23].
17 Palmer v R [2016] NZCA 541 at [17].
18 Tutakangahau v R [2014] NZCA 279 at [35].
19 At [36].
20 At [36].
21 Palmer v R [2016] NZCA 541 at [19].
… there is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either generally or for particular types of offence.22 The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another.23 In consequence, the margin of appreciation extended to sentencing judges is usually significant.
Analysis
[17]The two grounds of appeal are:
(a)the uplift of four months’ imprisonment for previous convictions was too high; and
(b)the sentence of imprisonment should have been commuted to one of home detention.
Uplift for previous convictions
[18] Ms Verry, for Ms O’Neil, accepts an uplift for previous convictions was appropriate in the interests of public protection and deterrence but says a four month uplift from a 24 month cumulative starting point was too high. She argues that it was disproportionate to Ms O’Neil’s previous sentences and punishes her for offending for which she has already been punished. Ms Verry refers to the Court of Appeal’s comments on the rationale for such uplifts in Beckham v R:24
The rationale for uplifting a prisoner’s sentence to take into account prior criminal history has been explained by this Court in R v Casey and in R v Ward. As Sir Michael Myers CJ explained in Casey, the Court must be careful to see that a sentence of a person who has been previously convicted is not increased merely by reason of those previous convictions. If this occurred, it would result in the prisoner being sentenced again for an offence which he had already expiated. This does not mean that previous convictions must be ignored, particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted. Issues of deterrence and, in some cases, protection of the public may require an uplift
22 R v Vhavha [2009] NZCA 588 at [29]. This was in dissent but this point was later adopted in
Osman v R [2010] NZCA 199 at [20].
23 R v D (CA253/2008) [2008] NZCA 254 at [66].
24 Beckham v R [2012] NZCA 290 at [84].
for previous offending. Similarly, previous convictions may bear on the issue of character.
(footnotes omitted)
[19] Ms O’Neil’s previous convictions include drink driving related offences in 1993, 1995, 2007 and 2014. Ms Verry says that they do not show additional offending patterns of concern. She says the cause of the most recent offending is the death of Ms O’Neil’s long-term partner.
[20] There is a nexus between the previous offending and this offending. While there have been no drink driving related offences since 2014, the same type of offending has recurred. While the death of her partner may have triggered Ms O’Neil’s offending, the previous drink driving convictions show that alcohol has been an issue for many years.
[21] Further, the quantum of the uplift is consistent with other cases. In Munn v Police, the defendant pleaded guilty to her seventh drink driving offence and a six month uplift was applied to a starting point of 10 months’ imprisonment.25 This was upheld on appeal.
[22] In comparison, the four month uplift for previous convictions to a 24 month cumulative starting point was not manifestly excessive. Ms O’Neil has a significant history of similar offending which increases her culpability and the need to protect the public. Furthermore, the end sentence itself of 20 months’ imprisonment was not manifestly excessive. A slight change to the uplift for previous convictions would amount to tinkering with the Judge’s decision.26
Home detention
[23] There are competing factors when considering whether a sentence of imprisonment should be commuted to home detention. As noted by the Judge, Ms O’Neil has previously been sentenced to home detention and she is back with further drink driving related offending. In these circumstances and given the nature
25 Munn v Police [2014] NZHC 2309.
26 Anngow v Police [2021] NZHC 128 at [24].
of the offending which involved complaints from the public regarding Ms O’Neil’s driving, public safety is an important consideration. While Ms O’Neil’s previous compliance with sentences (including home detention) may be “relatively good” as submitted by Ms Verry, those sentences have not deterred Ms O’Neil from further related offending.
[24] Given the previous convictions, the previous home detention sentence and the need to protect public safety, a sentence of home detention is unlikely to denounce and deter Ms O’Neil.
[25] Further the Judge noted that unlike the extensive rehabilitation efforts of the defendant in Whitehead v New Zealand Police,27 Ms O’Neil has only applied for some programmes and had not taken any steps for which credit could be provided. The Judge was not satisfied that the risk of re-offending was lower because of rehabilitation efforts. While Ms Verry referred to an offer at Epsom Lodge for Ms O’Neil, this was information before the sentencing Judge. The Judge was not satisfied that this would be sufficient to protect against the risks to the safety of both Ms O’Neil and the public. The Judge also noted that Ms O’Neil had declined the option to apply to the Alcohol and Other Drug Treatment Court (“AODT Court”). While Ms Verry says that Ms O’Neil’s reason for declining was the potential delay with the AODT Court and not because she could not smoke (as noted by the Judge), the point remains that Ms Verry has not taken up this option.
[26] The Judge had to balance the principles and purposes of sentencing. On one hand, there was a strong need to deter and denounce the conduct, particularly given Ms O’Neil’s history of related offending and public safety. While the need to assist in the offender’s rehabilitation and reintegration is also relevant, the Judge noted that Ms O’Neil had made little effort other than to apply for some programmes.
[27] In Samson v Police, Whata J considered that a sentence of home detention would not serve the principles of sentencing and stated:28
27 Whitehead v New Zealand Police [2021] NZHC 734.
28 Samson v Police [2015] NZHC 748 at [31].
… a term of imprisonment is appropriate because it is necessary to denounce and hold Mr Samson accountable for his repeated offending, to protect the public from him and to deter him and others from similar repeat offending.
[28] Similar reasoning as set out in Samson may be applied here and I do not accept that the Judge erred in declining to commute the sentence to home detention. That was an option open to the Judge given the circumstances of Ms O’Neil’s offending.
Result
[29]The appeal is dismissed.
Tahana J
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