Legal Research
Cases
O'Sullivan v R

O'Sullivan v R

Case [2017] NZHC 2628 26 October 2017

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000016 [2017] NZHC 2628

BETWEEN
PATRICK MAURICE OʼSULLIVAN

Appellant

AND

THE QUEEN Respondent

Hearing:
14 August 2017

Additional Submissions

Applicant:                  22 August 2017
Crown:  6 September 2017
Applicant Reply:        19 September 2017

Appearances:

Appellant in person
I R Murray for Respondent

Judgment:

26 October 2017

JUDGMENT OF DUNNINGHAM J

[1] On 23 February 2017, the appellant was convicted in the District Court on one charge of doing an indecent act on a child under 12 years and on one charge of doing an indecent act on a person under 16 years.1 He was subsequently sentenced to 11
months imprisonment.2 He now appeals both his conviction and sentence.

1 R v O’Sullivan [2016] NZDC 25428.
2 R v O’Sullivan [2017] NZDC 8184.

OʼSULLIVAN v THE QUEEN [2017] NZHC 2628 [26 October 2017]

Background to the conviction

[2] The appellant and the victims lived in a small Southland community. The appellant was in his sixties. At the time of the offending, victim X was aged about
11 or 12, and victim Y was aged six. X’s mother lived around the corner from the appellant. She was in a relationship with Y’s father. The two girls, X and Y, and their respective sisters would often spend time at the appellant’s house.

[3] The offence against X, the older victim, occurred when X was watching a movie with the appellant. He was wearing a robe with no underwear, so his genitals were at least partially exposed. He put his hand down X’s pants and began rubbing her bottom. While doing this he began rubbing his penis and masturbating. This went on for about five minutes. X told the appellant she had to go home and he stopped.

[4] The offence against Y occurred sometime later. She was at the appellant’s house playing cards with him. The appellant asked her to massage his shoulders and then to massage his leg and foot both before and after he had a shower. After the second massage, he told her to lift up her top. At this point she was uncomfortable and left. She arrived home upset, told her father what happened. Approximately a week later the police were involved and both girls disclosed the offending in interviews which were recorded on DVD.

[5] For completeness, although X says she told her mother what happened on the day of the offending, she later recanted her allegations, saying she might have been mistaken. She then confirmed in evidence that her recantation was false.

District Court decision

[6] The hearing in the District Court commenced in late 2016. The case was adjourned, part-heard, to 23 January 2017 when the appellant was recalled to give further evidence and the evidence of another witness for the defence was heard.

[7] The Judge then reserved her decision, which was produced after receiving written closing submissions. In it, she identified the issues in dispute and then carefully…

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 [2017] NZHC 2628
Case: [2017] NZHC 2628
Decision Date: 26 October 2017

CaseChat Overview and Summary

Patrick Maurice O’Sullivan appeals against his conviction and sentence on two charges of committing indecent acts on a child under 16 years. The appellant was convicted on one charge of doing an indecent act on a child under 12 years and on one charge of doing an indecent act on a person under 16 years. The appellant was sentenced to 11 months imprisonment. The appeal against conviction concerns the Judge’s findings of fact and her application of the legal test for indecency. The appeal against sentence argues that the sentence was manifestly excessive and unreasonable. The Court dismissed both appeals. In respect of the appeal against conviction, the Court found that the Judge’s findings of fact were available to her and were not unreasonable, and that she did not err in applying the legal test for an indecent act. In respect of the appeal against sentence, the Court found that the sentence was not manifestly excessive and that there had been no error in imposition of the sentence. The Court also found that name suppression was not appropriate and lifted the suppression order.

Orders