O'Sullivan v Police
[2015] NZHC 2032
•26 August 2015
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 RespondentJudgment:
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 forensic psychiatrist.8
[7] From a young age Mr O’Sullivan was a heavy user of alcohol and drugs. He offended, self-harmed, and threatened suicide but was not thought to be psychotic. In 2009 he first clearly presented as psychotic. Dr Holmes has been his psychiatrist since then. In 2011 he spent time in a secure forensic unit and was put on antipsychotic medication. His condition stabilised and he was discharged for treatment in the community.
[8] Mr O’Sullivan’s illness makes him hyperaroused and paranoid. Dr Holmes says that any aggression appears to be closely related to his psychotic symptoms. She says that after his discharge and to “[t]he surprise of everyone (including himself), he continued to engage with psychiatric services as an informal patient.” She notes that this “resulted in his longest period out of prison since the age of 17.” He is regarded by Dr Holmes as having good insight into his illness and his need for antipsychotic medication. At times he has been difficult to track down, but he is compliant and accepts his medication when located.
[9] At the time of the offending he was living in Housing New Zealand accommodation and was on an invalid’s benefit. He was more paranoid than usual. He believed that the police were trying to push him into a situation where he would get shot. Because of this he was avoiding contact with everyone. He was difficult to locate, which meant that he did not receive his medication and his mental health
deteriorated accordingly.
8 Criminal Procedure Act 2011, s 335. There was a letter before the District Court from Zep Cole, a Community and Justice Liaison Nurse with the Regional Forensic Services team at Capital & Coast District Health Board. That letter confirms Mr O’Sullivan’s diagnosis, states that he requires “ongoing monitoring and treatment”, that he has a tendency to be a week behind in his medication, and that he can become unwell without it. It also provides brief information on his support networks. The report by Dr Holmes offers greater insight into Mr O’Sullivan’s psychiatric and treatment history. It is therefore in the interests of justice to consider it.
[10] Mr O’Sullivan has not been taking his medication in prison. He is worried about his safety in prison and believes he needs to stay vigilant. He was attacked by three prisoners when he first returned to prison after being sentenced for the present offending. He is willing and wants to go back onto his medication when he is out of prison. He has good family support from his stepmother and his aunt. His mother was present in court for the appeal.
[11] Mr O’Sullivan has many Youth Court and District Court convictions beginning from 2002. They cover violence offences, dishonesty offences, driving offences, drug offences, breaches of court orders and other miscellaneous offences. The most serious offending was an aggravated robbery in 2009 for which he received a sentence of four years imprisonment. He first presented as paranoid when serving that sentence.
[12] After serving that sentence, he offended in 2012 by breaching release conditions, possessing an offensive weapon and making a threat to kill. For the offensive weapon offending he was sentenced to six months imprisonment in November 2012. He did not offend again until the present offending in January
2014. He was on bail from January 2014 until he was sentenced in December 2014 and did not offend during that period.
[13] He has two prior convictions for the lead offence of unlawfully taking a motor vehicle, dating back to March and August 2005. He also has two convictions for driving with excess breath alcohol from 2004 and 2005. He also has convictions for driving while disqualified, failing to stop, and recklessly operating a motor vehicle. All these convictions were entered between 2005 and 2008.
[14] Before Mr O’Sullivan was sentenced, three pre-sentence reports were obtained. The first report recommended a sentence of community detention. A District Court Judge took the view that this was inadequate and further reports were obtained. These reports also recommended community detention together with an order for reparation.
District Court judgment
[15] In rejecting the recommendation in the pre-sentence report for community detention, the Judge said:9
[7] … With respect to the writer of the report, in my view, a full-time sentence of imprisonment sufficient to enable Mr O’Sullivan to undertake whilst in prison rehabilitative intervention designed to address his alcohol consumption, his drug abuse, and his propensity for violence are all necessary responses to the offending committed by Mr O’Sullivan on this occasion.
[16] The Judge took the unlawful taking as the lead charge. On that charge he adopted a starting point of three years imprisonment, reduced that by nine months to take account of the guilty plea, and included an uplift of three months for the associated offending. This led to an effective end sentence of two years and six months imprisonment. Concurrent sentences were imposed for the other offences. A reparation order was deemed impractical.
[17] The Judge concluded:
[13] … That means that he will in due course appear before the parole board who will be able to assess whether he has taken advantage of rehabilitative programmes within the prison sufficient to warrant a release on parole with or without electronic monitoring so that Mr O’Sullivan can continue on the course his counsel was describing.
Assessment of appeal
[18] It is accepted that the Judge’s methodology was wrong. In particular, the uplift for associated offending should have been added before applying the discount for the guilty plea.
[19] Additionally the remarks that are quoted above suggest that the length of the sentence may have been influenced in part to enable the Parole Board to assess when it would be appropriate to release Mr O’Sullivan. Because of these remarks, counsel for Mr O’Sullivan submits that a longer sentence than was otherwise justifiable was apparently imposed to ensure Mr O’Sullivan received rehabilitative
intervention.
9 Police v O’Sullivan, above n 7.
[20] In any event, the focus on this appeal is on the end sentence. I consider that it was manifestly excessive. The starting point of three years was too high for the unlawful taking. It is not supported by the authorities to which I was referred10 or have considered.11 There is nothing to suggest that taking the car was anything other than impulsive behaviour. Mr O’Sullivan had the car for a relatively short period of
time. It was returned to its owner who was able to sell it. The owner’s loss was the inconvenience of not having the car, the towing bill of $160 and a missing GPS unit worth approximately $150. A starting point of around 12 months imprisonment was appropriate.
[21] The associated offending was relatively serious, involving as it did a police pursuit over some distance, driving with excess breath alcohol and the use of cannabis. I consider that an uplift of eight months was appropriate in light of the totality of the offending. That would mean an effective sentence of 20 months before personal aggravating and mitigating factors are considered.
[22] To that starting point a small uplift was appropriate in light of Mr O’Sullivan’s previous relevant offending. I would uplift the sentence by three months only, recognising that Mr O’Sullivan’s driving offending occurred some years ago, when he was a teenager or young man and before his diagnosis. Turning to mitigating factors, I note that that Mr O’Sullivan’s actions can be better understood in light of Dr Holmes’ report. His health had deteriorated and he believed the police wanted to push him into a situation where he would be shot. Taking that into account and also Mr O’Sullivan’s guilty plea, I arrive at an end sentence of 16 months imprisonment.
Result
[23] The appeal is allowed. The sentence imposed in the District Court on the unlawful taking charge is quashed. A sentence of 16 months imprisonment is
10 Ratahi v Police [2014] NZHC 2394; Singh v R [2011] NZCA 139; Muir v Police [2015] NZHC
1425; and Gideon v Police [2014] NZHC 1065.
11 Poole v R [2014] NZHC 1226; Hall v Police [2012] NZHC 2641; McWatt v Police [2013] NZHC 1703; Affleck v R [2015] NZHC 1741; Kushell v Police [2012] NZHC 2380; Edwards v Police HC Auckland CRI-2010-404-103, 11 May 2010; and Carrington v Police HC Christchurch CRI-2011-409-047, 3 June 2011.
substituted on that charge. The concurrent sentences and orders imposed on the remaining charges remain in place.
[24] The result is that Mr O’Sullivan will be released from prison. I understand arrangements are in place for him to live with his stepmother. He will also take his medication.
[25] The following special conditions are to apply for nine months from his release from prison:
(a) Mr O’Sullivan is to attend and complete an appropriate alcohol and drug counselling programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer.
(b)He is to undertake any psychiatric assessment/treatment/counselling as directed by and to the satisfaction of the treatment provider and/or a probation officer.
Mallon J
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