R v Terence O'Keefe

[2003] NZCA 255

IN THE COURT OF APPEAL OF NEW ZEALAND

CA207/03

THE QUEEN

v

TERENCE O'KEEFE

Hearing:5 November 2003

Coram:Tipping J
McGrath J
Glazebrook J

Appearances:  M J Lillico for Appellant

J C Pike for Crown

Judgment:10 November 2003 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]       Mr O’Keefe was sentenced to three and a half years imprisonment on 5 February 2003 after pleading guilty to two charges of arson.  On 29 April 2003 the High Court dismissed his appeal against sentence.  Leave to appeal to this Court was declined by the High Court on 27 May 2003.  Mr O’Keefe now seeks special leave to appeal to this Court. 

[2]       Mr O’Keefe appeared for himself in both High Court hearings.  He was, however, represented by counsel in the District Court and in this Court. 

Background facts

[3]       The convictions arise out of events in January 2003 when fires were deliberately lit by Mr O’Keefe at the offices of two Whangarei law firms.  The first fire resulted in a scorched window ledge and paint bubbling.  There was also some damage to some vertical blinds.  The second fire was more extensive and caused smoke damage throughout the building with all items in the office where the fire was based either being completely burnt, melted or buckled.  The sentencing judge, however, noted that there had been, in respect of both fires, the potential for injury or loss of life and major property damage.

[4]       Mr O’Keefe’s motivation in setting the fires was his grievance against the two Whangarei law firms arising out of their part in the making of a protection order which limited Mr O’Keefe’s contact with his late mother who at the relevant time was in a rest home in New Zealand.  His mother later died in the rest home.

Submissions of the parties

[5]       Mr Lillico, for Mr O’Keefe, submitted that the District Court judge in sentencing made a material error of law in that he wrongly treated Mr O’Keefe’s lack of remorse as an aggravating factor (see R v Haddon (1990) 6 CRNZ 508).  In his submission the High Court judge on appeal failed to correct the error.  The High Court judge merely said that the sentencing judge “was entitled to take into account, of course, the lack of remorse”.  Mr Lillico submitted that special leave should be granted to ensure an injustice to Mr O’Keefe was avoided.  Mr O’Keefe seeks to file a report by Dr Barry-Walsh which says that Mr O’Keefe’s personality traits could have led him to apparently irrational and extreme behaviour.  In addition, elements of his personality might account, in Dr Barry-Walsh’s opinion, for Mr O’Keefe’s apparent lack of capacity for remorse. 

[6]       On behalf of the Crown, it was submitted that it is well established that lack of remorse points to the absence of a mitigating factor rather than the presence of an aggravating one and that this basic principle does not need to be revisited.  There is therefore no need for a second appeal to this Court.  In any event, it was submitted that lack of remorse can still be relevant to sentence in at least two ways – in assessing the extent of the discount for a guilty plea and, in some cases, in assessing public safety concerns.  Both were relevant here in the Crown’s submission.

Discussion

[7]       In our view there was no error of law by the sentencing judge and therefore no basis on which an appeal to the Court can lie – see R v Slater [1997] 1 NZLR 211. Properly read in context the sentencing judge, when referring to the lack of remorse, did so in order to assess the proper discount for the guilty plea and with regard to concerns for public safety.

[8]       If there was no error by the sentencing judge there can be no error by the High Court judge in his consideration of the appeal.  In any event, the High Court judge was not even asked to consider the matter.

[9]       We comment finally that, given the serious nature of the offences, the sentence was in our view, if anything, lenient, even taking account of the very early guilty pleas.  Thus, even if the sentencing judge had wrongly treated the lack of remorse as an aggravating factor, this would not have led to an injustice.

Result

[10]     The application for special leave is dismissed.

Solicitors:
Rainey Collins, Wellington for Appellant
Crown Law Office, Wellington