O'Rourke v Police

[2018] NZHC 2792

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-286

[2018] NZHC 2792

BETWEEN

CLIFTON O’ROURKE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 October 2018
Appearances:	R Karena for Appellant R Gibbs for Respondent
Judgment:	29 October 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

O’ROURKE v NEW ZEALAND POLICE [2018] NZHC 2792 [29 October 2018]

[1]    Mr O’Rourke pleaded guilty in the District Court to three charges of burglary, one charge of theft and one charge of receiving stolen property. The offending involved the burglary of commercial premises and the theft of commercial items.

[2]    On 31 August 2018, Judge D J Harvey sentenced Mr O’Rourke to eight months home detention.1 Mr O’Rourke appeals against sentence on the basis that the Judge failed to take into account time he had spent on remand both in custody and on EM bail subject to a 24 hour curfew. On Mr O’Rourke’s behalf, Ms Karena submits these omissions led to an end sentence that was manifestly excessive.

The sentence

[3]    There was no challenge on the appeal to the manner in which the Judge constructed his sentence other than in relation to the omissions to which I have referred.

[4]    The Judge took a starting point of 18 months imprisonment on one of the burglary charges. He then added an uplifted of six months to reflect the remaining charges. The Judge added a further uplift of two months to reflect the fact that the offending occurred whilst Mr O’Rourke was on bail for similar offending. He then added one month to reflect the fact that Mr O’Rourke has numerous convictions for offending of this type. This produced a starting point of 27 months imprisonment before taking into account mitigating factors.

[5]    The Judge allowed a discount of 25 per cent to reflect guilty pleas. This reduced the sentence to 20 months imprisonment. The Judge then converted this to the end sentence of eight months home detention. He did not give any reason for imposing a sentence of that length rather than one of ten months, as would ordinarily be the case when a sentence of 20 months imprisonment is converted to a sentence of home detention. Although there is no mandatory principle requiring a reduction of this order, it is commonly used to reflect the fact that a short sentence of imprisonment results in immediate release after serving one-half of the sentence. An offender

1      New Zealand Police v O’Rourke [2018] NZDC 18372.

sentenced to home detention, on the other hand, is required to serve the whole of the sentence.

Decision

[6]    It is not surprising the Judge did not refer to the issues now advanced on appeal in his sentencing remarks because counsel for Mr O’Rourke did not advance them as factors justifying a discount. Nor were they referred to in her sentencing submissions.

[7]    Although the pre-sentence report and EM bail assessor’s report referred to the fact that Mr O’Rourke had been on EM bail, they did not set out the duration of the period on remand. As a result, the Judge cannot be criticised for not turning his mind to the issue of whether or not a discount ought to have been applied to reflect the fact that Mr O’Rourke was subject to restrictive EM bail conditions between 26 February and 30 August 2018.

[8]    To guard against the possibility that the omissions produced a manifestly excessive sentence, I have undertaken a re-calculation of the sentence that would ordinarily be imposed taking into account the period on remand in custody or on EM bail. There is no criticism of the ultimate starting point of 27 months imprisonment, and I proceed from that point.

[9]    A discount may be given for time spent subject to restrictive EM bail conditions. The Court has a discretion to reduce the sentence to reflect that factor where it is satisfied it has had a significant impact on the offender’s liberty. In the present case I consider a sentencer would apply a reduction of around two to two and a half months to reflect the fact that Mr O’Rourke had been subject to restrictive EM bail conditions for a period of approximately six months.

[10]   This produces a sentence of around 24 months imprisonment before taking into account guilty pleas. There is no dispute that a discount of 25 per cent was warranted to reflect these. This reduces the sentence to one of 18 months imprisonment.

[11]   Given that a sentence of home detention was to be imposed, it would then be necessary for the sentencer to take into account the fact that Mr O’Rourke had spent

35 days in custody. This is equivalent to approximately two months imprisonment because an offender serving a short-term sentence is released after serving one-half of the sentence. This would reduce the sentence to one of 16 months imprisonment. That would be converted to a sentence of eight months home detention, being the sentence the Judge ultimately imposed in the present case.

[12]   Using a different method, I have therefore reached exactly the same end result as the Judge. It follows that the sentence of eight months home detention was not manifestly excessive.

Result

[13]The appeal against sentence is dismissed.

Lang J

Solicitors:

Kayes Fletcher Walker, Manukau Counsel:

R Karena, Barrister, Auckland