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…

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: [2016] NZHC 273
Decision Date: 25 February 2016

CaseChat Overview and Summary

In the case of O'Rourke v Police, the appellant, Mr. Justin O'Rourke, was charged with unlawfully taking a motor vehicle and driving while disqualified. He entered guilty pleas and was sentenced to one year and four months imprisonment by the District Court. The appellant appealed against his sentence, arguing that it was manifestly excessive. The respondent accepted that the sentence was manifestly excessive and that the appeal should be allowed, which the High Court agreed with.

The legal issues before the court were whether the sentence imposed by the District Court was appropriate in light of the appellant's personal circumstances and whether the court had correctly applied the principles of sentencing. The court had to determine if the starting point, uplifts, and discounts applied by the District Court were in line with other authorities and if the sentence was excessive.

The court found that the starting point for the unlawful taking offence was within the available range, although towards the high end. The court also found that the uplift for the driving while disqualified offence was too high, and that an uplift of up to two months imprisonment would have been appropriate. The court agreed with the respondent that a 20 per cent discount for the guilty plea was appropriate, rather than the 11 per cent discount applied by the District Court. The court found that the District Court may have taken an unduly pessimistic view of the appellant's remorse and motivation, but that it was not required to discount the sentence for remorse beyond the 20 per cent discount.

The court quashed the sentences imposed by the District Court and replaced them 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 remained in place. The appeal was accordingly allowed.

Orders