O'Rourke v Police

[2016] NZHC 273

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2016-454-1 [2016] NZHC 273

BETWEEN

JUSTIN O'ROURKE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	25 February 2016
Appearances:	D Vincent for the Appellant M J Blaschke for the Respondent
Judgment:	25 February 2016

ORAL JUDGMENT OF MALLON J

Introduction

[1]      Mr  O’Rourke  was  charged  with  unlawfully  taking  a  motor  vehicle1   and driving while disqualified.2   He entered guilty pleas.  He was sentenced to one year and four months imprisonment.3   He appeals against his sentence on the ground that it is manifestly excessive.  The respondent accepts that it was manifestly excessive and that the appeal should be allowed.  I agree.

The offending

[2]      The offending occurred in the afternoon of 12 August 2015.  Mr O’Rourke went to a car park in an open space outside UCOL.4    He entered a car he found parked there, and drove away in the car for a short period.   At the time he was disqualified from driving.  It appears that the car was recovered and did not sustain

any damage.

1      Crimes Act 1961, s 226(1) (maximum penalty seven years imprisonment).

2      Land Transport Act 1998, s 32(1)(a) and (4) (maximum penalty two years imprisonment).

3      Police v O’Rourke [2015] NZDC 24568.

4      A tertiary institution in Palmerston North.

O'ROURKE v NEW ZEALAND POLICE [2016] NZHC 273 [25 February 2016]

Personal circumstances

[3]      Mr O’Rourke is 25 years old.  He has never had any form of employment. Until recently he was not in receipt of an employment benefit.  It appears that he has issues with alcohol and/or other drugs.  He has a lengthy list of previous convictions many of which are for dishonesty offending.  There are also previous convictions for driving offences.  He has served a number of imprisonment sentences.

[4]      The pre-sentence report writer noted that Mr O’Rourke had been offered treatment, counselling and psychological assessments on a number of occasions but he had refused to engage.  Mr O’Rourke said he had undergone an assessment in the past but considered it to have been of little benefit.  He was therefore unmotivated to agree to ongoing one on one cognitive behavioural treatment.

[5]      Mr O’Rourke told the pre-sentence report writer that he had rehabilitated and “reduced my offending heaps”.   He said that the present offending arose because some people believed he was responsible for the death of an associate.  He felt too scared to walk home as a result, and had no other means to get home.

[6]      He was not regarded as suitable for home detention.

District Court sentencing

[7]      The District Court Judge took a starting point of nine months for the unlawful taking.  He uplifted that by six months for the driving while disqualified.  He applied a further uplift of three months for previous offending.   He reduced that by two months (being an 11 per cent discount) for Mr O’Rourke’s guilty plea.  This meant an end sentence of 16 months imprisonment.

Assessment of appeal

[8]      Counsel  for  Mr  O’Rourke  does  not  take  issue  with  the  District  Court’s

starting point for the unlawful taking offence.5    I agree it was within the available

5      Compare Muir v Police [2015] NZHC 1425; Gorgus v Police [2015] NZHC 3127; Duxfield v

Police [2015] NZHC 3018; Singh v R [2011] NZCA 139; and Gideon v Police [2014] NZHC
1065.

range albeit towards the high end given that the vehicle was taken for a short time and was not damaged.

[9]      Issue is taken with the uplift of six months for the driving while disqualified. This is said to be too high in light of other authorities.6   Counsel for the respondent agrees  and  submits  that  an  uplift  of  two  to  three  months  would  have  been appropriate.  In my view the appropriate uplift was up to two months imprisonment in light of other authorities.7

[10]     No issue is taken with the uplift for previous convictions.   While it was available to the Judge it can, however, be regarded as at the high end.   To some extent the starting point for the present offending already reflects that Mr O’Rourke is a repeat offender.  Further, Mr O’Rourke is correct that there has been a reduction in his dishonesty offending.   His last dishonesty offending was in 2013 and that involved shoplifting and theft.  His last burglary offending was in 2009.  There has therefore been a significant break in his cycle of dishonesty offending.

[11]     Counsel for Mr O’Rourke and the respondent are agreed that the discount for the guilty plea was too low.  Mr O’Rourke entered his guilty plea prior to the first case  management  review.    Counsel  are  agreed  that  a  20 per  cent  discount  was appropriate.  I agree with that submission.

[12]     Counsel for Mr O’Rourke submits that the Judge took an unduly pessimistic view of Mr O’Rourke’s remorse and motivation.  He refers to a letter Mr O’Rourke submitted to the Court which expresses remorse, responsibility for his actions, and a wish to stop offending and obtain employment.  It seems that he had a job offer in the construction industry from his uncle which he was unable to take up because of his imprisonment.

[13]     The  Judge’s  view  may  have  been  unduly  pessimistic.     Hopefully  Mr

O’Rourke is now heading on the right track.  Time will tell.  However the Judge was

6      Singh, above n 5; and Edwards v Police HC Auckland CRI-2010-404-103, 11 May 2010.

7      Edwards, above n 6, the three month uplift that was applied in this case also took account of other offences.

not required to discount the sentence for remorse beyond the 20 per cent discount that I am already allowing.

[14]     A starting point of nine months for the unlawful taking, a two month uplift for the disqualified driving, a three month uplift for previous convictions, and a

20 per cent discount for the guilty plea would mean an end sentence of just over 11 months.   In view of what I have said about the uplift for previous convictions I consider  it  is  appropriate  to  round  the  end   sentence  down  to  11  months imprisonment.

Result

[15]     The sentences imposed by the District Court are quashed.  They are replaced with a sentence of 11 months imprisonment for the unlawful taking and a concurrent sentence of two months imprisonment for the disqualified driving.   The release conditions and disqualification order made by the Judge remain in place.  The appeal is accordingly allowed.

Mallon J