O'Rourke v Police
[2024] NZHC 1479
•6 June 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2024-454-12
[2024] NZHC 1479
BETWEEN JUSTIN O’ROURKE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 June 2024 Appearances:
R Solomon for Appellant N H Brown for Respondent
Judgment:
6 June 2024
JUDGMENT OF CHURCHMAN J
Introduction
[1] On 12 April 2024 the appellant was sentenced1 to 20 months’ imprisonment with release conditions after pleading guilty to a number of charges, including:
(a)one charge of dangerous driving;2
(b)one charge of failing to stop;3
(c)two charges of theft under $500;4
1 Police v O’Rourke [2024] NZDC 8147.
2 Land Transport Act 1998, s 35(1)(b) — maximum penalty of three months’ imprisonment or a fine of $4,500.
3 Sections 52A(1)(a)(ii), (5), and (6) and 114(2) — maximum penalty of three months’ imprisonment or a fine of $10,000.
4 Crimes Act 1961, ss 219 and 223(d) — maximum penalty of three months’ imprisonment.
O’ROURKE v NEW ZEALAND POLICE [2024] NZHC 1479 [6 June 2024]
(d)one charge of breaching a protection order;5
(e)two charges of breaching release conditions;6 and
(f)one charge of possession of a knife;7
[2] The appellant seeks to appeal two discrete components of his sentence, specifically the length of the special conditions and the Judge’s refusal to exercise his discretion to backdate the commencement of the period of disqualification. The appellant raises no issues in relation to the length of imprisonment.
[3]The grounds relied on by the appellant are that:
(a)The sentencing Judge erred by imposing the maximum length of time the appellant could be subject to electronic monitoring.
(b)The sentencing Judge erred in declining to back-date the period of disqualification the appellant would be subject to.
Background
Driving offences
[4] Just after midnight on 17 June 2023, the appellant was driving down Tremaine Avenue in Palmerston North. Police attempted to stop the appellant’s vehicle by activating their red and blue lights. Instead of pulling over and stopping, the appellant accelerated and fled at a speed above the posted speed limit. The appellant turned onto Vogel Street, crossed the centre line and turned his headlights off.
[5] Police abandoned their pursuit and maintained observation from a distance. The appellant continued to drive dangerously, weaving across both lanes, and having
5 Family Violence Act 2018, ss 90(b) and 112(1)(a) — maximum penalty of three years’ imprisonment.
6 Sentencing Act 2002, s 96(1) — maximum penalty of one year’s imprisonment or a fine of $2,000.
7 Crimes Act, s 202A(4)(b) — maximum penalty of three years’ imprisonment.
to lean out the driver’s window to see where he was going as the bonnet of the vehicle was up and obstructing his view.
[6] The appellant’s vehicle was successfully spiked by a tyre deflation device and he was later arrested.
Domestic violence and theft offending
[7] The appellant and one of the victims of this offending were previously in a relationship and have one child together.
[8] On 26 March 2021 a protection order was served on the appellant following an application by his former partner. The appellant was also subject to release conditions requiring him not to associate with his former partner nor enter her address.
[9] At around 10.11 pm on 18 August 2023 the appellant arrived at his former partner’s address unannounced and entered through the unlocked back door.
[10] The appellant’s former partner and her new partner (together the victims) found the appellant inside the address and told him to leave several times. The appellant refused and began arguing with them before continuing to walk around the address in an attempt to find their child.
[11] Eventually, after being followed around the address by the victims, the appellant turned and advanced on the new partner, pulling a knife from his pocket. The appellant tried to put the knife back in his pocket but dropped it on the floor. After walking around the address to try and find the knife, the appellant found the new partner’s phone. He took both the phone and the knife before leaving the address.
Engine oil theft offending
[12] On 1 August 2023, the appellant went into a Z Energy on Terrace End and took some engine oil from the shelf. He then put it down the front of his pants and left without paying.
Sentencing Decision
[13] In his sentencing decision, Judge Rowe imposed an end sentence of 20 months’ imprisonment, comprised of 12 months’ on the charge of breach of the protection order, six months’ for the possession of the knife, and a further two months’ for the breach of release conditions. An additional four months’ for the other charges were imposed concurrently.
[14] The Judge then set out standard and special release conditions that would apply 16 months after his release date. These were:
(a)To submit to electronic monitoring in the form of GPS technology as directed by the appellant’s probation officer to monitor his compliance with a “whereabouts” condition.
(b)To comply with the requirements of electronic monitoring and provide access to any approved residence to the appellant’s probation officer and representatives of the monitoring company, to maintain the electronic equipment.
(c)To not enter the victims’ street or any other area defined in writing by the appellant’s probation officer without the prior written approval of a probation officer.
(d)To live at an address approved by a probation officer and not move to any new residential address without the prior written approval of a probation officer.
(e)To not associate with or have contact with the victims of the domestic violence and theft offending (including their children) without the prior written approval of a probation officer.
(f)To not possess, consume or use any alcohol or non-prescribed drugs.
(g)To attend a psychological assessment with a departmental psychologist as directed by a probation officer and complete any treatment or counselling recommended by the assessment to the satisfaction of a probation officer.
(h)To attend and complete an appropriate assessment programme, treatment or counselling to address the appellant’s offending as directed by the appellant’s probation officer and to their satisfaction.
[15] The Judge also considered the issue of disqualification. He rejected the appellant’s request to backdate the disqualification and imposed a disqualification of six months for dangerous driving, and a further six months for failing to stop for police. This resulted in a total of 12 months’ disqualification starting from the date of sentencing.
Submissions
Appellant’s submissions
[16] Mr Solomon for the appellant submits that although the appellant pleaded guilty after receiving his sentencing indication, which specified that the maximum period of post-release electronic monitoring was likely to be imposed on the appellant, this does not affect his right to appeal his sentence. Mr Solomon refers to Nepia v R where it was noted that there are “a variety of circumstances that could justify” the right of a defendant who has accepted a sentence indication to appeal.8
[17] Mr Solomon submits that the period of electronic monitoring for 16 months after the appellant has completed his effective 20-month prison sentence is manifestly excessive. He states that although the Court has jurisdiction under s 93 of the Sentencing Act to impose release conditions up to six months after the sentence expiry date, the wording of s 93 supports the submission that imposing the maximum period should not be treated as the default position. Mr Solomon contends that although standard conditions apply by default until the sentence expiry date, the Court must
8 Nepia v R [2015] NZHC 1226 at [25].
specifically reference when special conditions expire. Mr Solomon refers to R v Janssen where it was stated that “any condition imposed ought not to be “more onerous, or last longer, than is consistent with the safety of the community”.9 Although it is accepted that some period of enforcing the whereabouts condition with electronic monitoring is reasonable, Mr Solomon submits that the maximum period of monitoring available to the Court was not the least restrictive outcome appropriate in the circumstances. Mr Solomon refers to timeframes for other electronic monitoring regimes, which do not exceed more than 12 months, although he acknowledges these restricted the offender to a single residence.
[18] Mr Solomon draws comparison to three cases, namely Vennell,10 Armstrong11 and Whichman12 and, based on these, submits that a special condition of electronic monitoring for six months is appropriate.
[19] With regard to the driving disqualification, Mr Solomon submits that the appellant’s sentencing would have commenced significantly earlier were he not subjected to the process of reports being completed under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP). That process is said to have taken longer than is anticipated by the statutory regime, with an extension of time required, and was opposed by the appellant.
[20] Mr Solomon submits that the appellant’s sentencing would likely have occurred six months earlier were it not for the CPMIP process. He notes that under s 85 of the Land Transport Act the Court may back-date disqualifications to commence on a date prior to sentencing. Mr Solomon refers to Moki v Police where it was observed that backdating is warranted to avoid excessive punishment where there is some procedural defect or abnormality that was not caused by the appellant’s conduct.13 Mr Solomon consequently submits that it would be appropriate for the appellant’s disqualification to have been backdated six months prior to the sentencing date.
9 R v Janssen [2007] NZCA 450 at [15]–[17].
10 Police v Vennell [2022] NZHC 536.
11 Armstrong v Nicholas [2018] NZHC 5.
12 Whichman v Department of Corrections [2023] NZHC 603.
13 Moki v Police [2019] NZHC 239 at [19].
Respondent’s submissions
[21] Mr Brown for the respondent opposes the appeal. He submits that the 16 months of electronic monitoring is not manifestly excessive, and refers to Whichman where an EM special condition of 11 months was found to be reasonably necessary to promote the victim’s safety and was proportional to the risk.14 Mr Brown contends that the conditions in Whichman were more restrictive than those imposed on the appellant in this case, as Whichman was prohibited from visiting large parts of Auckland, whereas the appellant is unable to visit a single street in Palmerston North. It is submitted that although the offending in Whichman was more serious, this is not the only consideration to take into account, as the Court must also place weight on the need to protect the community and the interests of the victim.
[22] Mr Brown also submits that the restriction on the appellant’s liberty is not significant, as most of the period of electronic monitoring is comprised of the balance of his sentence, and there will only be a mild interference with his privacy, which is confined so long as he does not breach his release conditions. He also argues the sentence was in fact the least restrictive, as the alternative considered by the Judge was prohibiting the appellant from Palmerston North completely. Mr Brown states a condition not to visit the address of the victim alone is not enough given the appellant did not abide by a protection order.
[23] With regard to the refusal to backdate the disqualification order, Mr Brown submits that the appellant was partially responsible for the delay caused, due to him referring to another entity driving him to commit his offences, that he had a chip in his brain, and that there were covert influences. It is submitted that the psychological report writer found that the appellant was essentially being deceitful to achieve a more lenient sentence. Mr Brown consequently argues the appellant should not benefit from a delay his conduct contributed to. He also contends that the Judge did not err in putting greater weight on the need to protect the community, given the seriousness of his driving based offending, and that this was one of many in his criminal history.
14 Whichman, above n 12, at [25].
Approach on appeal
[24] An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.15 The Court must dismiss the appeal in any other case.16
[25] In an appeal against sentence, an appellant court will not intervene unless a sentence was outside the range available to the sentencing Judge.17 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.18 An appellant court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is “manifestly excessive” on the basis of some material error so that a different sentence should be imposed.19
[26]If the appeal is allowed, the appeal court must:20
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b)vary the sentence, any part of the sentence, or any condition of the sentence; or
(c)remit the sentence to the court that imposed it and direct that court to take any action as specified by the appeal court.
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
16 Criminal Procedure Act 2011, s 250(3).
17 Tutakangahau, above n 15, at [36].
18 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 15, at [36].
19 Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau, above n 15, at [32].
20 Criminal Procedure Act, s 251.
Analysis
Appealing following acceptance of sentencing indication
[27] The case Nepia referred to by the appellant sets out examples of circumstances that would justify allowing an appeal after an appellant has pleaded guilty following a sentencing indication. These include where the judge gave a specified range in the sentencing indication, and the appellant argues for a sentence on the lower end of that range, where the court leaves open the possibility of further information being put before it on sentence, or where the appellant was inadequately advised before accepting the indication.21 Although the Judge in his sentencing indication did make it clear that he would impose the maximum period of post-detention conditions including an electronically monitored condition, he did not indicate one way or another around the potential backdating of the disqualification. Given this circumstance, the fact that the appellant accepted a sentence indication does not preclude him pursuing an appeal.
Length of electronic monitoring condition
[28] Under s 93(1) of the Sentencing Act, a court that sentences a defendant to 12 months’ imprisonment or less can impose standard conditions and special conditions on the defendant. A special condition must not be imposed unless it is designed to reduce the risk of reoffending, facilitate or promote the rehabilitation and reintegration of the offender, or provide for the reasonable concerns of the victims of the offender.22 There must be a rational nexus between these purposes and the conditions imposed, and when considered with other conditions to be imposed it must be reasonably necessary and proportional.23 There clearly is such a rational nexus between the condition of electronic monitoring and the need to reduce the risk of reoffending and provide for the concerns of the victims. The issue is whether the condition is proportional.
[29] I accept that the most comparable case to this one is Whichman, given the type of offending was relatively similar, and the sentences of imprisonment imposed are
21 Nepia, above n 8, at [25](a)–(c).
22 Sentencing Act, s 93(3).
23 Patterson v R [2017] NZCA 66 at [11].
very close in length (19 and 20 months’ respectively). Although a shorter electronically monitored condition (on the whole) was imposed in Whichman for what was clearly more serious offending, the restrictions imposed by the condition were greater than in this case.
[30] The appellant in this case is only prevented from contacting the victims or going to their street, whereas Whichman was barred from entering a sizeable area in East Auckland, which is much more restrictive.
[31] The condition currently imposed is less restrictive than the alternative condition contemplated which was to bar him from going to Palmerston North entirely. I do not accept that a relevant comparison can be drawn to home detention or community detention, given these are much more restrictive in limiting the offender to a single residence.
[32] As noted in the PAC report, the appellant has a very extensive criminal history, with 203 previous criminal convictions since 2004, 93 of which were for violence related offending.24 The appellant is assessed to have a very high risk of reoffending. Although this condition is imposed for the maximum period of time it can be imposed for, it is tailored to the appellant’s circumstances and his “precise criminality”25 in that it is specifically aimed at preventing him going near the victims. I consider the overall period of 16 months is not more onerous or longer than is consistent with the safety of the victims. A reduction to six months, as proposed by Mr Solomon, would fail to adequately promote the victim’s safety and address the risk of re-offending.
Backdating of disqualification
[33] The decision whether or not to backdate a disqualification period pursuant to s 85 of the Land Transport Act is a matter of “unfettered discretion”.26 However, the
24 This information is taken from the PAC report dated 8 April 2024. It was challenged by Mr Solomon who suggested actual violence related prior convictions were in order of 25. A review of the appellant’s criminal history supports Mr Solomon’s contention. However, some 20 charges appear to relate to family violence including two of breaching a protection order and one of impeding breathing/strangulation. There is also a large number of breaches of release conditions.
25 Whichman, above n 12, at [25].
26 Edwards v Police [2012] NZHC 1350 at [26].
purposes and principles of sentencing apply to the exercise of that discretion.27 Where a procedural delay has occurred, as appears to have been the case here, backdating may be appropriate where the delay was not caused by the appellant.28
[34] In his reasons judgment on whether the appellant was fit to stand trial, Judge Rowe noted that the appellant had become increasingly resistant to oversight or treatment from mental health services and did not “willingly engage in the assessment process” for the preparation of the psychologist’s report. However, the appellant was much more cooperative in the subsequent assessment undertaken three months later and was found to not be mentally impaired or mentally ill. This does not appear to be a procedural delay akin to that in Oldfield, where there were issues with the charges laid against the defendant that caused delay.29 In that case the time between first appearance and sentencing was 14 months, instead of the typical four months or less.30 Instead, the necessary amount of time was taken to properly assess the appellant following concerns raised in his first psychological assessment. Any procedural delays were contributed to by the appellant. I refer to the findings of Dr Chaplow that the appellant was, in essence, being deceitful in an attempt to achieve a more lenient sentence.
[35] The Judge also rightly gave weight to the fact the appellant fled police in highly dangerous circumstances, and that the appellant has a considerable history of driving offences. The 12 months’ disqualification is necessary to protect the public from such offending.
Conclusion
[36] The appellant has failed to demonstrate that his sentence was manifestly excessive.
27 Hood v Police [2022] NZHC 120 at [27].
28 Moki, above n 13, at [19].
29 Oldfield v Police [2013] NZHC 3206.
30 At [20].
[37]Appeal dismissed.
Churchman J
Solicitors:
Public Defence Service, Wellington for Appellant Crown Solicitor, Palmerston North for Respondent
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