R v O'Carroll - [2019] NZHC 2035

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-009592

[2019] NZHC 2035

THE QUEEN

v

SHAY O’CARROLL

Hearing: 19 August 2019

Appearances:

E Woolley for the Crown

P M Keegan for the Defendant

Sentencing:

19 August 2019

SENTENCING REMARKS OF WOOLFORD J

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: P M Keegan, New Plymouth

R v O’CARROLL [2019] NZHC 2035 [19 August 2019]

Introduction

[1] Mr O’Carroll has pleaded guilty to indecent assault under s 148 of the Cook Islands Crimes Act 1969 and is for sentence today. The criminal jurisdiction of the High Court extends to offences committed in the Cook Islands where offenders are found in New Zealand and with leave of the Attorney-General.1 Mr O’Carroll is a New Zealander and leave of the Attorney-General was obtained on 5 September 2018, so the matter can be dealt with in this court.

[2] I gave a sentence indication on 5 April 2019 and Mr O’Carroll pleaded guilty on 8 May 2019.

Facts

[3] I set out the facts in full at the sentence indication hearing, a copy which is annexed to these notes. In short, Mr O’Carroll and the victim were both on holiday in Rarotonga, staying at the same resort. Mr O’Carroll was intoxicated, he went into the victim’s hotel room without invitation and used his tongue to lick her vagina. She told him “No” a number of times. The offending would constitute sexual violation by unlawful sexual connection if he had been charged in New Zealand.

Jurisdiction issues

[4] A preliminary issue is the High Court’s jurisdiction to impose a sentence of home detention. The sentencing laws of the Cook Islands do not provide for the option of home detention. Section 155(4) of the Cook Islands Act 1915 (NZ) provides:

(4)The punishment to be imposed by the High Court for any such offence shall be that which is provided for that offence by the laws of the Cook Islands.

At the sentence indication and in accordance with the Crown’s submissions, I concluded that I did not have jurisdiction to sentence Mr O’Carroll to home detention because it is not available in the Cook Islands.2

1 Cook Islands Act 1915 (NZ), s 155.
2 R v O’Carroll [2019] NZHC 716 at [36].

[5] Mr O’Carroll applied to the Court of Appeal for leave to appeal this aspect of the sentence indication. The Court of Appeal dismissed the application on the basis that it did not have jurisdiction to hear the appeal before sentencing.3 After sentencing, Mr O’Carroll can appeal both the availability of home detention and the sentence imposed.4 The Court of Appeal directed that the sentencing decision of this court should indicate whether home detention would have been granted had jurisdiction been available, and if so, the length of such a sentence.5

[6] However, I have received further submissions on the question of jurisdiction. The Crown has now changed its mind and submits that…

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 R v O'Carroll

Details

AGLC: R v O'Carroll [2019] NZHC 2035
Case: [2019] NZHC 2035
Decision Date: 19 August 2019

CaseChat Overview and Summary

Shay O'Carroll has pleaded guilty to indecent assault under section 148 of the Cook Islands Crimes Act 1969. He is to be sentenced by Woolford J of the High Court of New Zealand. The case revolves around the jurisdictional issues related to sentencing and the applicability of home detention in this context. The primary legal issue the court had to decide was whether the High Court had the jurisdiction to impose a sentence of home detention, given that the sentencing laws of the Cook Islands do not provide for this option.

The court concluded that it did not have the jurisdiction to sentence Mr O’Carroll to home detention because it is not available in the Cook Islands. Section 155(4) of the Cook Islands Act 1915 (NZ) mandates that the punishment imposed by the High Court for any such offence shall be that provided for by the laws of the Cook Islands. Despite submissions from both the Crown and the defence arguing for an alternative interpretation of the section, the court held that Parliament never intended for home detention to apply in this context. The purpose of the Sentencing Amendment Act 2007, which introduced home detention as a standalone sentence, was not relevant since Mr O’Carroll is being sentenced under Cook Islands law.

The court imposed a sentence of 22 months' imprisonment, discounting it by three months for mitigating factors and eleven months for the guilty plea. The court also revoked the first strike warning that was incorrectly given to Mr O'Carroll. The final orders included a sentence of 22 months' imprisonment, a payment of $1,000 emotional harm reparation to the victim, and a grant of bail with conditions until the determination of the proposed appeal against sentence.

Orders