O'Rourke v Police - [2024] NZHC 1479

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…

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: [2024] NZHC 1479
Decision Date: 6 June 2024

CaseChat Overview and Summary

Justin O’Rourke appealed against two aspects of his sentence: the length of electronic monitoring and the refusal to backdate his disqualification from driving. The appellant had pleaded guilty to various charges, including dangerous driving, theft, and breaching a protection order. The Crown opposed the appeal, arguing that the sentence was proportionate to the seriousness of the offending. The Court held that the appellant had failed to demonstrate that his sentence was manifestly excessive. The appeal was dismissed. The Court found that the length of the electronic monitoring was necessary to protect the victims and reduce the risk of reoffending, and that the refusal to backdate the disqualification was justified given the appellant's contribution to the procedural delays. The Court did not find the sentence to be outside the range available to the sentencing judge, and therefore dismissed the appeal.

Orders