O'Neill v N Z Police HC Palmerston North CRI 2008-454-44

[2008] NZHC 2578

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2008-454-44

DANNY SHANE O'NEILL

v

N Z POLICE

Hearing:         10 September 2008

Counsel:         M B Ryan for the Appellant

P Murray for the Respondent

Judgment:      18 September 2008

JUDGMENT OF MILLER J

[1]      Mr  O’Neill  appeals  against  a  sentence  of  nine  months  and  seven  days

imprisonment imposed on seven charges.

Offence	Section	Sentence Imposed
Driving with excess breath alcohol – 3rd or subsequent (834µg/L)	s56(1)    Land    Transport    Act 1998	5 months Imprisonment & 12 months’ disqualification (concurrent)
Driving while disqualified – 3rd or subsequent	s32(1)(a) and 32(4) Land Transport Act 1998	5 months Imprisonment & 12 months’ disqualification (concurrent)
Driving while disqualified – 3rd or subsequent	s32(1)(a) and 32(4) Land Transport Act 1998	3 months Imprisonment & 12 months’ disqualification (cumulative)
Breach of District Court Bail	s37(a) Bail Act 2000	1 month imprisonment (concurrent with other breach charges but cumulative upon other sentences)

DANNY SHANE O'NEILL V N Z POLICE HC PMN CRI 2008-454-44 18 September 2008

Breach of District Court Bail	s37(a) Bail Act 2000	1 month imprisonment (concurrent with other breach charges but cumulative upon other sentences)
Breach of District Court Bail	s37(a) Bail Act 2000	1 month imprisonment (concurrent with other breach charges but cumulative upon other sentences)
Theft (under $500)	s219 and 223(d) Crimes Act 1961	7 days imprisonment (cumulative)

[2]      The first and second of these offences were committed on 7 January 2007. They led to a series of failures to appear, during which time the second offence of driving whilst disqualified was committed.

[3]      Sentencing  on  4  June  2008,  the  Judge  recorded  that  Mr  O’Neill  has  a shocking record, with many convictions since 1984.   They include drunk driving, driving while disqualified, dishonesty, violence, and breaching bail.

[4]      Mr O’Neill’s explanation for the first offence was that he and his partner had been drinking at a friend’s house where they got into an argument.  He became upset and went home, apparently on foot.  She rang and said she was walking home but was being followed, and asked if he would come and get her.  He drove to get her and was apprehended by the police, who had been called by her.  The second offence of driving while disqualified occurred when he was driving his children to school because they were running late.  The failures to answer bail occurred because he was putting things off as he thought he would be going to jail.

[5]      The Judge observed that he had been asked to impose intensive supervision, which was introduced on 1 October 2007, but that raised something of a quandary because had Mr O’Neill come before the Court at the appropriate time that sentence would not have been available.  Those who by their own failures to attend postpone their sentences so the actual sentence date comes long after it should have done ought not benefit thereby.  Accordingly, he declined to impose intensive supervision.

[6]      The Judge then held that there was no option but to impose a sentence of imprisonment, noting that there had been no change in Mr O’Neill’s attitude to the law.   On the first offence the reason for driving was a mitigating factor, but his breath alcohol level was over twice the legal limit, and the most recent conviction for a similar offence was as recently as 2005.  On the second occasion the need to get his children to school could not possibly excuse him.   The bail matters required cumulative sentences, as did the shoplifting charge.  On the first two charges a term of five months imprisonment was imposed, with special release conditions that he undertake such alcohol and drug assessment and programmes and education as directed by the probation officer, and that he undertake an assessment for the Te Wairua Programme and if suitable complete that programme to the satisfaction of the probation officer.   A cumulative sentence of three months was imposed on the second charge of driving while disqualified.   The breach of bail charges earned a total one month’s sentence, cumulative upon the eight months sentence for driving offences.  A further seven days were added for the charge of shoplifting.

[7]      On appeal, Mr Ryan accepts that no point can be taken about the length of the sentence of imprisonment, which is if anything lenient.  He argued, however, that the Judge erred in principle by refusing to entertain intensive supervision.  Mr O’Neill was eligible for it, and the probation officer had recommended it on the basis that home  detention  and  community  detention  were  inappropriate,  in  circumstances where his partner and his mother had each declined to sign the consent form. Intensive supervision is a punitive sentence but also provides opportunities to work on the offender’s motivation.   It would allow Mr O’Neill to be considered for a departmental programme.   The probation officer thought that Mr O’Neill might benefit from intensive supervision.

[8] Section 55 of the Sentencing Amendment Act 2007 provides:

55    Transitional arrangements for intensive supervision

If   an   offender   is   convicted   of   an   offence   committed   before   the commencement of section 54B, the court may sentence the offender to intensive supervision if—

(a) the court would have had the power to sentence the offender to supervision if it were dealing with the offence immediately before that date; and

(b) the requirements of sections 54B and 54C are satisfied;  and

(c) the offender consents to the imposition of intensive supervision.

[9]      There is no dispute that the sentence is available for offences committed before 1 October 2007:  R v Hill [2008] NZCA 41. Nor was it in dispute that the requirements of s54B(1)(a) of the Sentencing Act 2002 were satisfied, in that the offences were punishable by imprisonment. Section 54C provides:

54C   Guidance on use of sentence of intensive supervision

A court may impose a sentence of intensive supervision only if it is satisfied that—

(a) a sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender;  and

(b) the nature of the offender's rehabilitative or other needs requires the imposition of conditions—

(i)       for a period longer than 12 months;  or

(ii)      that  are  not  available  through  the  sentence  of supervision.

[10]     In this case, the probation officer had not suggested that conditions were required for a period longer than twelve months, but Mr Ryan contended that Mr O’Neill’s rehabilitative needs required conditions that were not available through the sentence of supervision, namely a condition that he undergo a departmental programme.  It appears that he is correct, although the only evidence to that effect is a letter from the probation officer.  She explains that departmental programmes are of two kinds, a short intensive rehabilitative programme and a medium intensive rehabilitative programme.   They can only be undertaken if the individual is on intensive supervision, because the programmes are intensive in nature and the sentence is resourced to enable higher levels of contact between the offender and the department.   Eligible offenders are those who fall within the 0.3 to 0.7 RoC/RoI criteria.  Mr O’Neill’s RoC/RoI score is .56588.

[11]     I  will  assume  accordingly  that  Mr  O’Neill  was  eligible  for  intensive supervision.  The Judge erred in law by refusing to consider it on grounds of delay. It had to be considered on its merits.

[12]     Apart from highlighting the probation officer’s recommendation, Mr Ryan pointed to mitigating factors relating to the most serious offending on 7 January

2007 and the fact that guilty pleas were entered to all charges.   Noting that Mr O’Neill’s  rate of  offending had  diminished  during the  preceding  four  years,  he submitted that Mr O’Neill might have reached the stage in life where intensive supervision could address his impulsiveness and risk taking behaviour.

[13]     I  consider   that   the   Judge   was   right   to   reject   intensive   supervision. Rehabilitation and reintegration of the offender were not the only considerations to be taken into account.   Denunciation and deterrence are significant sentencing considerations for recidivist drunk drivers;   see for example Bidois v Police HC HAM CRI-2006-419-000123 1 November 2006.

[14]     Further,  Mr  O’Neill’s  delay  was  a  relevant  consideration.     It  was  an aggravating factor that added to the need for deterrence.  It reduced considerably the credit that would otherwise be attached to guilty pleas.  It also suggested that counsel was  wrong  to  attribute  Mr  O’Neill’s  offending  to  impulsive  and  risk  taking behaviour.  While those characteristics may have been present, the decision not to answer bail so as to defer the date of judgment cannot be characterised as impulsive. Rather, it demonstrates, as the Judge found, that there has been no change in Mr O’Neill’s attitude to the law.

[15]     The appeal is dismissed.

Miller J

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 3.30pm on the 18th day of September 2008.

Solicitors:

M B Ryan, Palmerston North for the Appellant

Crown Solicitor’s Office, Palmerston North for the Respondent