O'Neill v Police - [2020] NZHC 284

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-553

[2020] NZHC 284

BETWEEN
MATTHEW O’NEILL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 February 2020

Counsel:

R Thomson for Appellant T Stuart for Respondent

Judgment:

27 February 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 27 February 2020 at 3.00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

O’NEILL v POLICE [2020] NZHC 284 [27 February 2020]

[1] Mr O’Neill pleaded guilty to one charge of assault of a family member. He did not seek a discharge without conviction, so it was not considered. He was sentenced to twelve months’ supervision. He now seeks, on appeal, to be discharged without conviction under s 106 of the Sentencing Act.

Background

[2] The facts of the offending are set out in a summary of facts which state that at approximately 6.00 pm on Sunday, 20 October 2019, the victim and Mr O’Neill were at their home. The victim and Mr O’Neill were having a conversation regarding Mr O’Neill’s relationship with his associate. The victim mentioned an occasion when Mr O’Neill did not come back home from overseas to attend a friend’s funeral. Mr O’Neill took exception to this comment and left the kitchen. He walked outside into the garage and laundry area. Inside the laundry was a teacup containing a solution of bleach and water. He picked up the teacup and returned to the kitchen. At this time, the victim was still seated in the kitchen. Mr O’Neill then suddenly swung his arm holding the cup, flicking the bleach solution at the victim’s face. As a result, the solution struck her face and eyes and they started to burn. She then received medical treatment for that.

[3] When the Police spoke to Mr O’Neill, he admitted the facts and in explanation stated he threw the contents of the cup over the victim, believing it was water.

[4] As noted, the Judge was not asked to and did not address discharge without conviction. The Judge concluded, however, that the focus should be on Mr O’Neill’s rehabilitation and therefore imposed a supervision order of twelve months with specific conditions that he attend an Anger Management or Living Without Violence programme.

Evidence

[5] Mr O’Neill sought leave to file an affidavit as to the circumstances of the offending and the consequences of the conviction. It is not opposed. Given this, and the fact that the main body of the evidence cogently goes to the merits of the appeal, I grant leave to file this evidence.

[6] Mr O’Neill deposed that he had been living with his mother for some time prior to the offending. He said he assisted with the mortgage for their home and had also supported his mother financially where possible, including by purchasing a chair to help her recover after surgery, and paying her dentistry bills. He also referred to the assault, which broadly aligns with the…

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: [2020] NZHC 284
Decision Date: 27 February 2020

CaseChat Overview and Summary

The case of O'Neill v Police involves an appeal by Matthew O'Neill against a sentence imposed by the Auckland District Court. O'Neill had pleaded guilty to assaulting a family member and was sentenced to twelve months' supervision. The appellant sought to be discharged without conviction under section 106 of the Sentencing Act. The key issue before the High Court was whether the consequences of the conviction were out of proportion to the gravity of the offending. The Court considered the three-step process for assessing discharge without conviction, including the gravity of the offence, the consequences of a conviction, and whether those consequences would be out of proportion. The Court found that while the offending was moderately serious, the consequences of a conviction, particularly the risk of losing his security clearance and being precluded from his role as a Communication Warfare Specialist, were out of all proportion to the offending. The Court granted the appeal and discharged O'Neill without conviction. This decision highlights the importance of considering the proportionality of the consequences of a conviction in relation to the offending and the need to give due deference to screening processes where the public interest is engaged.

Orders