IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-5 [2013] NZHC 613

BETWEEN	JAMES WILLIAM O'KEEFE Appellant

AND	POLICE Respondent

Hearing:	26 March 2013
(Heard at Wellington)

Counsel:	C J Tennet for Appellant
S A H Bishop for Respondent

Judgment:	27 March 2013

JUDGMENT OF HON JUSTICE KÓS

[1]       James William O’Keefe pleaded guilty in the District Court to charges of assault with a weapon,1 common assault, cultivation of cannabis, causing a vehicle to undergo sustained loss of traction and dangerous driving.  Judge Rea sentenced him to six months’ imprisonment on the charge of assault with a weapon.  On the other four  charges  he  imposed  concurrent  sentences  of  three  months’ imprisonment, cumulative on the six months’ for assault with a weapon, making a total sentence of nine  months’ imprisonment.2      Home  detention  was  not  considered  appropriate. Mr O’Keefe was also disqualified from holding a driver’s licence for six months.

[2]       Mr O’Keefe does not appeal or object to the three month sentence imposed cumulatively.    But  he contends  that  the six  months  imposed for assault  with  a weapon was manifestly excessive.  He submits that a starting point of no more than six months was appropriate, rather than the “eight or nine months” selected by the
Judge.

1	Crimes Act 1961, s 202C(1)(a).
2	Police v O’Keefe DC Napier CRI-2012-041-002403, 5 February 2013 at [4].

O'KEEFE v POLICE HC NAP CRI 2013-441-5 [27 March 2013]

Circumstances of the offending

[3]       Mr O’Keefe is 37 years old.  He has been in a relationship with his partner for four years.  He has two children from a previous relationship and an infant child with his current partner.

[4]       The driving charges relate to an incident on 8 May 2012.  Mr O’Keefe drove down  a  residential  street  in  Napier  at  some  speed,  undertaking  a  “burnout” manoeuvre and several “fishtails”.  At one point the rear of his car ended up on the lawn of a resident who was playing soccer with two young children at the time. Other motorists on the street were forced to stop their vehicles to avoid him.

[5]       The assault and cultivation of cannabis charges arose out of an incident on

28 May 2012 when Mr O’Keefe and his partner were in bed.  They had an argument which resulted in the appellant punching her in the arm while she breastfed their child.  The force left her arm bruised.  When Police attended, they noticed a strong smell of cannabis wafting from the garage.  Inside they found seven large cannabis plants growing in a hidden cultivation unit.  Mr O’Keefe admitted it was his but said it was used to manage back pain.

[6]       The assault with a weapon charge relates to an incident on 8 October 2012. This occurred while Mr O’Keefe was on bail on the other charges just related.  The victim and Mr O’Keefe had had altercations in the past.  The victim was crossing the street to walk to visit a neighbour’s house.  The appellant was standing outside in his driveway.  The appellant told the victim to “walk on your own side of the street”. Then he threw a rock at the victim.  The size of the rock is not stated.  The victim received a small cut to his head above his temple when the rock struck him.

[7]       The appellant has 61 prior convictions.  As the Judge noted, there have been only two recent years (2002 and 2009) when he has not appeared in Court.  His only prior convictions for violence are common assault in 2000 and assaulting police and male assaults female in 1995.

Decision appealed

[8]      In his sentencing, Judge Rea noted what he described as Mr O’Keefe’s “comprehensive record”.   He noted that he was described in the Advice to Courts report as having a high risk of reoffending.  The Judge sentenced Mr O’Keefe on the basis that he serve three months’ imprisonment on each of the minor charges (the terms of which to be concurrent).  He went on:

On the assault with the rock, the starting point is somewhere around eight or nine months’ imprisonment.  You have pleaded guilty eventually to that and you will get credit for that.   You will be sentenced to six months’ imprisonment on that and that term will be cumulative, added to the three months on the other offences, making a total of nine months’ imprisonment.

Appeal

[9]       Mr Tennet submits that the starting point adopted by the Judge was far too high at eight or nine months.   He was not in a position, however, to point to any particular authority that was truly comparable.  By reference to the decision of the Court of Appeal in Nuku v R3  Mr Tennet suggested this would have been a band 1 offence  had  the  offending  been  under  ss  189(2),  188(2)  or  191(2)  (offending involving intent to injure).  As I indicated at the time, however, I do not think that can be correct.  Use of the rock and the targeting of the victim’s head brought this into band 2 in Nuku.  In other words, it was offending where a term of imprisonment
could be expected.

[10]     Mr Tennet also submitted that the Judge had failed to consider s 8(g) – the least restrictive outcome appropriate to the circumstances.  Mr Tennet did, however, concede that as an experienced sentencing Judge, the matter was no doubt at the very least at the back of the Judge’s mind in sentencing Mr O’Keefe.

Crown response

[11]     For the Crown, Ms Bishop submitted that the starting point adopted by the

Judge was well within the range available to him.  She cited two authorities said to

3	Nuku v R [2012] NZCA 584.

involve broadly similar offending: Sudol v R4  and Le Marquand v Police.5    Neither authority is entirely satisfactory, however.   Sudol involved an attack on a massage parlour receptionist who was attempting to escort the appellant from a building.  The assault took place in two parts: a punch to the face (causing a small cut) and then the presentation of a knife.  Despite that, a single charge of assault with a weapon was proferred.  The Court of Appeal appears to have found that a starting point of nine months’ imprisonment on the lead charge of assault with a weapon was too severe. But  it  is  not  clear  from  the  Court’s  final  reasoning  as  to  what  it  thought  the appropriate start point was, and a number of other charges were involved in the end sentence.  Le Marquand is not a comparable case, because it involved an appellant who had used a metal bar to strike the victim on the head and the body.  A starting point of 18 months was adopted on appeal, but the case is not at all comparable.

Approach on appeal

[12]     Sections 115(4) and 119(1) of the Summary Proceedings Act 1957 provide that this is a general appeal to be heard by way of rehearing.   The onus is on the appellant to satisfy the Court that the grounds of appeal have been made out and that it should differ from the original decision.  But this Court must still come to its own view on the merits.6

[13]     In R v Monkman, the Court of Appeal considered the factors that would make

a sentence “manifestly excessive”:7

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes  on the scale of seriousness of offences  of that type;  and  the  personal circumstances of the offender (to the extent that they are relevant with respect to the
particular kind of offending).

4	Sudol v R [2011] NZCA 189.
5	Le Marquand v Police HC New Plymouth CRI 2009-443-32, 11 February 2010.
6	Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
7	R v Monkman CA445/02, 3 March 2003 at [6].

[14]     When considering whether the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal observed in Ripia v R:8

... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive.  The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

[15]     The High Court on appeal from the District Court will not lightly alter a sentence imposed by an experienced sentencing Judge.  It is not the function of this Court to tinker with sentences, or alter them at all unless it feels that the sentence imposed is contrary to both principle and conscience.

Starting point for assault with a weapon

[16]     As there is no relevant guideline judgment I will turn to comparable cases to determine the sentence customarily observed for this type of offending.

[17]     In R v Morgan9  the offender had been drinking at a pub with his partner. During an argument he threw a glass at her.  It missed, but shattered against the wall behind her.  One of the flying shards of glass struck her in the face, cutting her under her  jaw.    An  ambulance  attended.     Mr Morgan  was  sentenced  to  150  hours community work on the charge of assault with a weapon, but failed to complete that work.  He was then re-sentenced to eight months’ imprisonment on that charge (the charge of breach of community work being dealt with separately).   The Court of Appeal quashed that sentence because the offending was “at the low end of the
spectrum”10  and imposed a sentence of three months’ imprisonment.  The Court of

Appeal did not set out the starting point, but it is possible to infer that because the offender pleaded  guilty immediately after  a sentence indication,  he  would  have received  a  25  per  cent  discount  for  his  guilty  plea  giving  a  starting  point  of
approximately four months’ imprisonment.

8	Ripia v R [2011] NZCA 101 at [15].
9	R v Morgan [2008] NZCA 232.
10	R v Morgan [2008] NZCA 232 at [17].

[18]     In R v McMillan11 the Court of Appeal noted that s 202C was relatively new section of the Crimes Act 1961, “inserted to emphasise the aggravating feature of assaults where weapons are used” and that there had been few recorded decisions at that point.  The Court noted the cases of R v Reece12 and R v Baldwin13.  In Baldwin the offender became annoyed at another group staying at the same camping ground. The offender confronted a man in the group (who was also holding a cricket bat) and hit him in the upper arms and shoulder with a cricket bat before dropping the bat and walking away.   The Court of Appeal reduced his final sentence to four months’
imprisonment.   In Reece, the offenders were a motorcycle gang who entered the home of the victims, who they believed to have stolen one of their motorcycles. They were carrying weapons (wooden batons and an iron bar).  One of the victims was stuck on the head and knocked unconscious during the attack.   The Court of Appeal increased their final sentences to nine months’ imprisonment.   It is a more serious case than the present, and the sentencing levels seem perhaps lenient by more modern standards.

[19]     The facts of this case are substantially less serious than those in Reece – bearing in mind the degree of premeditation, duration of the assault and the degree of force in that case.  However I am bound to view as a concern two things in this case: (1) a weapon was used against the victim’s head and (2) the offence was committed whilst on bail on other charges.

Appropriate sentence

[20]     Mr O’Keefe’s offending was most similar to that of Morgan, although in my view more serious than that case.  A starting point of six months’ imprisonment is appropriate.  I note that Mr Jefferson, who prepared the written submissions for Mr O’Keefe, agrees.  From that point I turn to personal aggravating factors. An uplift of two months to recognise the appellant’s three previous convictions for violence and the fact the offending occurred while on bail is justified.  I then take into account the appellant’s prompt guilty plea, so a final sentence of six months’ imprisonment on
the charge of assault with a weapon is appropriate.

11	R v McMillan CA317/01, 31 October 2001.
12	R v Reece CA74/95, 22 May 1995.
13	R v Baldwin CA518/95, 4 December 1995.

[21]     It follows that I have reached some the same conclusion as the sentencing Judge.  In essence I get there from a starting point of six months.  The discount for early guilty plea is effectively cancelled by the uplift allowed for prior offending and offending whilst on bail, matters the sentencing Judge had not explicitly allowed for.

Result

[22]     Appeal dismissed.

Stephen Kós J

Solicitors:
Crown Solicitor, Wellington for Respondent