The Queen v George Dion Stuart O'Neil

IN THE COURT OF APPEAL OF NEW ZEALAND

CA117/02

THE QUEEN

GEORGE DION STUART O’NEIL

Hearing:	27 June 2002
Coram:	Gault P McGrath J Anderson J
Appearances:	C J Nicholls for Appellant J C Pike and A Markham for Crown
Judgment:	27 June 2002

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

The appellant was sentenced in the District Court to an effective term of fourteen months imprisonment on two charges that, being a male, he assaulted a female. Leave to apply for home detention was refused. He appealed against that aspect of the sentence to the High Court which dismissed his appeal. He did however obtain leave from the High Court to appeal against its decision on a question of law under s144 of the Summary Proceedings Act. He now brings that appeal in this Court.
The victim of the appellant’s offending is his former partner, who is also the mother of his 2 year old son. In relation to the first charge the appellant became angry with the victim while she was visiting him at his home. He began by verbally abusing and swearing at her and then punched her in the head some 5 times. Thereafter he kicked the victim in the back, pushed her against the wall in the corridor of the house and punched her again to the side of her head. The appellant was charged in respect of this offending and released on bail.
Three to four weeks later, whilst still on bail in respect of the first charge, the appellant committed the second offence. This took place at his victim’s home after he and his victim had returned there following a work function and the victim had gone to bed. The appellant cut off 5 braids of his victim’s hair while she was asleep, causing her to awake. He then threatened to kill her and to strike her over her head with a mirror. He punched her in the head 3 times with a closed fist. When the victim yelled out to her sister to call the police the appellant put his hands around her neck to subdue her. Later he spoke of committing suicide in an attempt to scare the victim.
In sentencing the appellant the District Court Judge referred to his 2 previous convictions for the same offence in 1998 for which the appellant had received a suspended sentence of 2 years imprisonment. The Judge referred also to a further conviction in June 2001 for common assault also on the same complainant. On that occasion the appellant had been sentenced to 3 months periodic detention and had been given a final warning by the Court.
The Judge expressed the view that the offending on each occasion for which he was sentencing the appellant was a cowardly, bullying and premeditated attack. It involved the exercise of control by the appellant over his victim. The previous convictions were aggravating factors as was the fact that the offending, the subject of the second charge, had occurred when the appellant was on bail.
The sentencing Judge rejected a submission that a further suspended sentence should be imposed and said that there should be immediate imprisonment. He sentenced the appellant to 6 months and 8 months imprisonment respectively on the 2 charges and directed that the terms of imprisonment be served cumulatively. He refused the appellant leave to apply for home detention.
The appellant then appealed to the High Court on the sole ground that he should have been given leave to apply for home detention in respect of his term of imprisonment.
As no explicit reasons had been given by the District Court Judge for refusing leave to apply for home detention the High Court Judge considered the appropriateness of the refusal on a fresh basis. The Victim Impact Report before the District Court gave no indication that the victim would support home detention nor had the appellant’s employers indicated that they were willing to re-employ him on his release from prison. The appellant’s counsel had, however, put before the High Court a letter from the victim, supporting the application for home detention, in the interests of their son. A letter from the appellant’s employers also indicated they valued him as an employee and would have him back. Finally the appellant’s parents had indicated he could stay with them although they expressed a concern as to their responsibility if the appellant did not comply with any of the terms of home detention.
In his judgment dismissing the appeal the High Court Judge identified the factors he was required to take into account under s21D of the Criminal Justice Act 1985 and s121(3)(b) of the Summary Proceedings Act 1957. Under the former provision the Court is required to consider, in deciding whether or not to grant leave to apply for home detention, the nature and seriousness of the offence and any relevant matters in the Victim Impact Statement concerning the case. Under the latter statutory provision, in the case of an appeal to the High Court against sentence, the High Court had jurisdiction to quash the sentence imposed by the District Court and to pass a different sentence “if satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the court imposing sentence, or that those facts were not substantially as placed before or found by that court…”
The Judge expressed reservations as to whether these provisions gave him jurisdiction to take into account the new information referred to in para [7] above provided to the High Court by the appellant’s counsel and to determine whether leave to apply for home detention should be granted in light of it.
He went on, however, to decide the appeal on the basis that he had concluded it was not proper for him to interfere with the District Court Judge’s decision. In doing so he implicitly took account of the new information. He found that in all the circumstances the case was not one for the granting of home detention. That was because the offending had occurred at the home of the victim and the appellant, there had been 2 separate assaults within a month, the offending was serious and had been appropriately characterised as such by the District Court Judge, the appellant was on bail at the time of the second assault, the appellant had other recent convictions for violent offending, he had not expressed remorse at the time of interview for the pre-sentence report, his compliance previously with community based sentences had been poor, there was a high risk of his re-offending. Finally the appellant had low motivation to change his behaviour.
The High Court Judge also referred to the Victim Impact Report which expressed the concern of the victim that she continued to be scared of the appellant. That factor, the Judge said, required modification in light of the present willingness of the victim to support home detention. That, however, was the only factor that in the Judge’s view had really changed and it was insufficient to persuade him the case was an appropriate one for him to grant permission to apply for home leave. He accordingly dismissed the appeal.
After delivering his oral judgment in those terms the High Court Judge heard and granted an application by Mr Nicholls, on behalf of the appellant, for leave to appeal under s144 of the Summary Proceedings Act. A question of law was identified by the Judge which was appropriate to be submitted to this Court under s144(2). It concerned the inter-relationship between s21D of the Criminal Justice Act and s121(3)(b) of the Summary Proceedings Act. His Honour considered that the two provisions threw up a question of law which made leave to appeal appropriate. It seems that His Honour thought clarification by this Court of the requirements of the provisions concerned read in relation to each other would be helpful in this case.
In his written submissions in this Court in support of the appeal Mr Nicholls set out three grounds of appeal. The first concerned the High Court Judge’s ruling that it would not be proper for him to interfere with the District Court Judge’s decision on home detention even though no reasons had been given for it. The second ground took issue with the High Court’s finding that the case was not one for granting of leave for home detention. Mr Nicholls submitted that the correct test was rather whether grant of leave was not “clearly inappropriate”. Neither of these two grounds, however, as Mr Nicholls recognised at the outset of his oral submissions, fits within the scope of the question of law submitted to this Court as the basis for what is a second appeal. Nor would either question in any event meet the requirement of s144(2) of being a question of law “which by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision”.
The other ground advanced in the written submissions was that for which leave was given. It concerned the reservations of the Judge as to whether he had jurisdiction to consider the fresh material put before him n support of the appeal. Here Mr Nicholls took issue with the reservations expressed by the Judge in relation to whether s121(3)(b) of the Summary Proceedings Act covered the new material. He argued that the new information in relation to the attitude of the victim to home detention, the willingness of the employer to re-engage the appellant and his parents’ indication the appellant could stay with them all clearly fell within the scope of s121(3)(b). In his written submissions Mr Nicholls also cited a R v Barton [2000] 2 NZLR 459 for the proposition that under s21D(3) the factors stated were not intended to represent an exhaustive list of matters which the Court could consider.
We entirely accept that a sentencing court may take into account a wide range of factors when considering whether to grant leave to apply for home detention under s21D. The discretion is a broad one. It is not confined to the matters set out in s21D(3). Furthermore s121(3)(b) of the Summary Proceedings Act is also interpreted in a flexible way by this Court in relation to the new material that can be received as relevant on any appeal against sentence (see R v Barton (supra) paras 8 and 12 and Waitakere City Council v Hertzke [1997] NZRMA 222, 226-227).
None of this however assists the appellant in the present case as the High Court Judge did not allow the reservations he had as to his jurisdiction to prevent him from considering what was submitted to him. He accordingly decided the appeal against sentence on its merits. The question of law submitted to the Court in those circumstances can have no determinative effect in respect of the appeal it having been decided on a different basis and we see no need to discuss further the statutory powers concerned or s119(3) of the Summary Proceedings Act in light of what the Court has recently said concerning them.
The appellant has no basis for a second appeal against the sentence imposed on him by the District Court and plainly has been justly treated in both the High Court and the District Court. In those circumstances the appeal against sentence must be dismissed.

Solicitors

Crown Law Office, Wellington

[2002] NZCA 151

27 June 2002