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O'Sullivan v Police

O'Sullivan v Police

Case [2015] NZHC 2032 26 August 2015

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-109 [2015] NZHC 2032

BETWEEN
TARRYN O'SULLIVAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 25 August 2015

Appearances:

N Bourke for the Appellant
A van Echten for the Respondent

Judgment:

26 August 2015

JUDGMENT OF MALLON J

Introduction

[1] Mr O’Sullivan pleaded guilty to and was convicted in the District Court on six charges as follows:

(a) unlawfully taking a motor vehicle;1

(b) driving whilst disqualified (third or subsequent);2

(c) failing to comply with a lawful requirement to stop for red and blue flashing lights;3

(d) driving with excess breath alcohol (third or subsequent);4

1      Crimes Act 1961, s 226(1) (maximum penalty of seven years imprisonment).
2      Land Transport Act 1998, s 32(1) (maximum penalty of two years imprisonment or a fine not exceeding $6,000; disqualification of one year or more).
3      Section 114(2) (maximum penalty of a $10,000 fine).
4      Section 56(4) (maximum penalty of two years imprisonment or a fine not exceeding $6,000; and disqualification of more than one year).

O'SULLIVAN v NEW ZEALAND POLICE [2015] NZHC 2032 [26 August 2015]

(e) resisting a police officer;5 and

(f) possession of cannabis.6

[2] He was sentenced to an effective term of two and a half years imprisonment.7

He appeals against that sentence on the bases that the Judge applied the wrong methodology and that the sentence was manifestly excessive. I am allowing the appeal for the reasons that follow.

Facts of the offending

[3] The charges arise out of an incident which began when Mr O’Sullivan stole a car from a street in Naenae on 13 January 2014. On 15 January 2014 the police observed Mr O’Sullivan driving that car from Upper Hutt heading north along State Highway 2. The police confirmed that he was driving a stolen vehicle and activated the police car’s red and blue flashing lights in Featherston. Mr O’Sullivan did not stop.

[4] This resulted in a pursuit along State Highway 2 that lasted 17kms during which the car Mr O’Sullivan was driving reached speeds of up to 150km/h. The police deployed road spikes but Mr O’Sullivan drove through them. He stopped in Carterton and ran from the car. A short foot pursuit ensued until Mr O’Sullivan was pepper-sprayed. Mr O’Sullivan continued to resist arrest until he was handcuffed.

[5] A search of Mr O’Sullivan located a small amount of cannabis. He said he had smoked cannabis prior to driving. A breath test was administered and the result
showed 677mcgs of alcohol per litre of breath.

5      Summary Offences Act 1981, s 23(a) (maximum penalty of three months imprisonment or a fine not exceeding $2,000).
6      Misuse of Drugs Act 1975, s 7(2)(b) (maximum penalty of three months imprisonment or a fine not exceeding $500 or both).
7      Police v O’Sullivan DC Hutt Valley CRI-2013-096-2456, 3 December 2014.

Personal circumstances

[6] Mr O’Sullivan is 28 years old. He suffers from paranoid schizophrenia. I have granted leave to adduce a report from Dr Holmes, a consultant…

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.

Continue reading O'Sullivan v Police

Details

AGLC: O'Sullivan v Police [2015] NZHC 2032
Case: [2015] NZHC 2032
Decision Date: 26 August 2015

CaseChat Overview and Summary

In the case of O'Sullivan v Police, the appellant, Tarryn O'Sullivan, appealed against the sentence imposed by the District Court. O'Sullivan was convicted on six charges, including unlawfully taking a motor vehicle, driving while disqualified, failing to comply with a lawful requirement to stop for red and blue flashing lights, driving with excess breath alcohol, resisting a police officer, and possession of cannabis. The District Court imposed an effective term of two and a half years imprisonment on the unlawful taking charge. O'Sullivan argued that the Judge applied the wrong methodology and that the sentence was manifestly excessive.

The primary legal issues in this appeal were whether the Judge applied the correct methodology in sentencing and whether the sentence imposed was manifestly excessive. O'Sullivan submitted that the uplift for associated offending should have been added before applying the discount for the guilty plea. Furthermore, it was suggested that the length of the sentence may have been influenced to enable the Parole Board to assess when it would be appropriate to release O'Sullivan. The court needed to determine whether these submissions were correct and whether the sentence imposed was appropriate.

In the judgment, Mallon J allowed the appeal and quashed the sentence imposed by the District Court on the unlawful taking charge. The Judge found that the methodology used by the District Court was incorrect, and the starting point of three years was too high for the unlawful taking. Mallon J considered that a starting point of around 12 months imprisonment was appropriate, with an uplift of eight months for the associated offending, and a small uplift for previous relevant offending. Mallon J took into account O'Sullivan's guilty plea and the circumstances of the offending, including his mental health issues, and arrived at an end sentence of 16 months imprisonment. The concurrent sentences and orders imposed on the remaining charges remained in place.

The final orders of the court were to substitute the sentence imposed by the District Court on the unlawful taking charge with a sentence of 16 months imprisonment, and to impose special conditions for nine months from O'Sullivan's release from prison, including attending and completing an appropriate alcohol and drug counselling programme and undertaking any psychiatric assessment/treatment/counselling as directed.

Orders