IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY CRI-2016-412-000014 [2016] NZHC 1692 BETWEEN AND CALEB MAX OʼCONNELL Appellant NEW ZEALAND POLICE Respondent Hearing: 25 July 2016 Appearances: C C Lynch for Appellant R D Smith for Crown Judgment: 25 July 2016 ORAL JUDGMENT OF DUNNINGHAM J [1] Mr O Connell appeals the sentence imposed on him by Judge Wharepouri in respect to one charge of careless driving causing injury. On 9 June 2016, the appellant was sentenced to: (a) 150 hours community service; (b) reparation of $1050 to be paid in $50 instalments; and (c) six months disqualification from driving or holding a drivers licence. [2] The primary focus of the appellant s appeal is against the sentence of 150 hours community service. It is submitted by the appellant that, in light of the totality of the sentencing, the sentence of 150 hours community service is manifestly excessive. OʼCONNELL v NEW ZEALAND POLICE [2016] NZHC 1692 [25 July 2016]
Background [3] The events which gave rise to this charge occurred on 2 March 2016. At the time the appellant was driving north on South Road, Dunedin. The appellant had his right indicator on with the intention of turning right onto Burns Street. The victim was on a bicycle, also riding north on South Road. The defendant failed to give way to the victim coming toward him and collided with him, knocking him off his bicycle. [4] The victim suffered bruising and swelling to both legs and is receiving ongoing physiotherapy treatment. He was off work for six weeks following the accident and was still recovering from his injury at the time of the restorative justice conference on 1 June 2016. District Court Decision [5] In sentencing Mr O Connell, Judge Wharepouri took into account the appellant s limited criminal history, his remorse, his readiness to attend the restorative justice programme, the victim impact statement and the pre-sentence report. In light of the principles and purposes of the Sentencing Act 2002, and taking into consideration Mr O Connell s guilty plea at the earliest convenience, the Judge sentenced the appellant to six months disqualification, to pay $1050 in reparation and to undertake 150 hours community service. Jurisdiction on appeal [6] Mr O Connell appeals to this Court as of right. 1 Under s 250 of the Criminal Procedure Act 2011, the appeal must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should be imposed. It is well accepted that where a sentence is manifestly excessive, that is an error that would justify allowing an appeal. 2 The question of whether a sentence is manifestly excessive, however, is to be examined 1 2 Criminal Procedure Act 2011, s 244. Tutakangahau v R [2014] NZCA 279 3 NZLR 482 at [35].
in terms of the sentence given, rather than the process by which the sentence is reached. 3 Defence Submission [7] In support of this appeal, the appellant submits that the following factors should be taken into account: (a) the offending was at the low end of the scale of careless driving; (b) the findings of the pre-sentence report; (c) the fact that there was no relevant previous offending; (d) the early guilty plea; (e) the demonstrated remorse and participation in the restorative justice programme; and (f) the appellant s youth. [8] The appellant also submits that the 150 hours community service was inconsistent and inappropriate, having regard to the sentencing levels for similar offences and in similar circumstances. Counsel for the appellant referred the Court to Montgomery v Police, whereby the defendant fell asleep while driving, resulting in an accident seriously injuring three people. 4 In that case the Court considered, as a mitigating factor, the one off nature of the incident, the defendant s clean driving record, the guilty plea and remorse and a sentence of 80 hours community service with an eight month disqualification period was imposed. [9] However, I do note that while the sentence of community service in the Montgmery case was less than the current sentence, this may be attributed to the fact that the defendant in Montgomery had a permanent disability from a previous motor 3 4 Larkin v Ministry of Social Development [2015] NZHC 680 at [26]. Montgomery v Police HC Wellington AP94/01, 6 May 2001.
accident in 1995. Carrying out a longer community service sentence would likely have been disproportionately severe in the particular circumstance of that case. [10] Another case I was referred to was Tupu v Police, where the driver was turning into a major stream of traffic from a side street. 5 He edged out into the stream of traffic which was moving slowly. The District Court Judge found that the defendant s foot slipped from the brake and he went into one of the vehicles in the line. The complainant s car was written off and the complainant sustained a broken wrist. In the District Court, the defendant was sentenced to 150 hours community work, ordered to pay $500 in reparation and was disqualified from holding or obtaining a driver s licence for nine months. On appeal, Ellen France J, amended the period of disqualification to six months, but otherwise left the sentence unchanged. 6 [11] That decision also referred to the decision of George v Police, where the defendant was sentenced to a fine of $1200 and disqualification of 12 months. 7 On appeal, Nicholson J substituted the period of disqualification for one of six months, holding that the minimum period of disqualification should be applied in cases where there are no aggravating features in the offending. 8 [12] In Combes v Police, another case I was referred to, the defendant approached a busy intersection in Trafalgar Street, Nelson, but failed to give way to an ongoing scooter. 9 The defendant had two previous convictions of careless driving, his second causing injury. He was sentenced to 13 months disqualification, a $1,500 fine and $500 in reparation. On appeal, Williams J reduced the disqualification to nine months, but otherwise left the decision untouched. [13] Another case that the respondent has referred me to is Blackbourn v New Zealand Police. 10 In that case the defendant had been driving around the square in Palmerston North with other youths late at night. He struck a pedestrian while exiting a car park. He drove away from the incident and he had a previous driving 5 6 7 8 9 10 Tupu v Police HC Wellington, AP101/03, 8 July 2003. At [14]. George v Police HC New Plymouth AP14/00, 29 June 2000. At [20]. Combes v Police [2012] NZHC 945. Blackbourn v New Zealand Police, HC Palmerston North CRI-2004-454-55, 20 September 2004.
history. He was sentenced to 150 hours community work and his sentence of 12 months disqualification was reduced on appeal to eight months disqualification. [14] In my view what all these cases demonstrate is that beyond the mandatory disqualification period and any reparation for the victims, a sentencing Judge has a discretion to impose a punitive element in the sentencing whether that is by fine or community service. That is consistent with the purpose and principles under the Sentencing Act and is designed to hold the defendant accountable for his conduct and denounce and deter him and others from committing similar offences. [15] In the current circumstances involving a youth offender, the ability to pay a fine was clearly limited and so a sentence of community service was more appropriate. [16] In my view, Judge Wharepouri s approach in sentencing was orthodox. He expressly took account of all the factors raised by the appellant on appeal. In that regard I note that most careless driving is caused by a moment s inattention and that factor does not necessarily put it at the bottom of the range of careless driving, but is simply a common feature of much careless driving. While I accept that this appellant has no relevant previous offending, I do note he was in breach of one of his licence conditions as, at the time of the accident, he was carrying a passenger. The fact that he was remorseful was clearly acknowledged in the decision and was the reason for imposing a minimum period of disqualification. [17] So in all the circumstances and having regard to the many cases that I have been referred to, I am satisfied that the end sentence was within the range of options available to the decision maker. While I accept that the length of community service imposed was certainly at the upper end, it could not be said in the circumstances to be manifestly excessive. For that reason, the appeal is dismissed. Solicitors: Christine Lynch, Barrister, Dunedin RPB Law, Dunedin