O'Sullivan v R - [2016] NZCA 204

IN THE COURT OF APPEAL OF NEW ZEALAND

CA20/2016
[2016] NZCA 204

BETWEEN	LEIDEN CHEYNE O'SULLIVAN Applicant
AND	THE QUEEN Respondent

Hearing:	3 May 2016
Court:	Randerson, Stevens and French JJ
Counsel:	F C Deliu for Applicant B J Horsley for Respondent
Judgment:	16 May 2016 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

In May 2008 Mr O’Sullivan pleaded guilty in the Whangarei District Court to two charges of arson. The case was transferred to the High Court and on 19 August 2008 he was sentenced by Harrison J to six months’ home detention and ordered to pay $1,000 in reparation.[1]
[1]R v O’Sullivan HC Whangarei CRI-2007-088-5182, 19 August 2008.
Over seven years later, on 22 January 2016, Mr O’Sullivan filed a notice of appeal against conviction. Justice Wild directed the notice of appeal should be treated as an application for an extension of time to appeal pursuant to s 388(2) of the Crimes Act 1961.[2] He further directed that the application should be heard separately from the proposed appeal.
[2]O’Sullivan v R CA20/2016, 15 March 2016.
The Crown opposes an extension of time being granted.

Factual background

On the evening of 13 November 2007 two fires were deliberately lit at separate locations in Whangarei.
There is a dispute as to the order in which the two fires were lit. According to Mr O’Sullivan, the first and more serious fire occurred at a block of public toilets in the Barge Park Show Grounds (the Barge Park fire). The fire was lit while a person was still in one of the cubicles. The fire caused extensive property damage. The second and less serious fire was at a portable toilet.
Mr O’Sullivan, then aged 19, was charged with two counts of arson under s 267(1) of the Crimes Act. The Crown alleged he was driving a group of his friends around the city. The group stopped at a portable toilet where Mr O’Sullivan and one of the group (a Ms O’Hagan) used piled up newspapers to set the toilet alight. Mr O’Sullivan then allegedly drove the group to the Barge Park toilets where he and Ms O’Hagan used toilet rolls to set the block of toilets on fire. Another of the group (a Michaella Frandi) was using the toilets at the time.
Mr O’Sullivan pleaded not guilty to both charges and on 2 May 2008 there was a depositions hearing. At the depositions hearing Michaella Frandi and her sister, Hope Frandi (who was also part of the group), gave evidence. Mr O’Sullivan was represented by counsel Mr Watson.
At the conclusion of the depositions hearing the Crown agreed to amend the portable toilet charge to one of arson under s 267(2)(a). The charge relating to the Barge Park toilets remained as a charge under s 267(1)(a). Section 267(2)(a) carries a lesser maximum penalty than s 267(1)(a) because, unlike the…

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 R

Details

AGLC: O'Sullivan v R [2016] NZCA 204
Case: [2016] NZCA 204
Decision Date: 16 May 2016 at 10.30 am

CaseChat Overview and Summary

In this appeal, Leiden Cheyne O'Sullivan sought an extension of time to appeal his conviction for two counts of arson. The Court of Appeal of New Zealand, consisting of Randerson, Stevens, and French JJ, dismissed the application. O'Sullivan had pleaded guilty to the charges in 2008 and was sentenced to six months' home detention and ordered to pay $1,000 in reparation. In 2016, over seven years later, O'Sullivan filed a notice of appeal against the conviction. The Crown opposed the extension of time being granted. The court considered various factors, including the delay in filing the appeal, the reasons for the delay, the merits of the proposed appeal, and the impact on the administration of justice. The Court concluded that the delay was extraordinarily long and the explanation for it was inadequate. Additionally, the proposed appeal was considered weak, as O'Sullivan had entered the guilty pleas after a depositions hearing where the Crown evidence had been tested, and he had signed written instructions regarding his pleas. The Court found that O'Sullivan had made an informed decision to plead guilty and that the threshold for granting an extension of time after such a long period of delay was a high one. The Court of Appeal declined the application for an extension of time.

Final Orders: The application for an extension of time to appeal is declined.

Orders