O'Donnell v R [2011] NZCA 50 (7 March 2011)

Last Updated: 15 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA464/2010 [2011] NZCA 50

BETWEEN REGAN HENARE O'DONNELL Appellant

AND THE QUEEN Respondent

Hearing: 22 February 2011

Court: Arnold, Gendall and Allan JJ

Counsel: D H Quilliam for Appellant K Laurenson for Respondent

Judgment: 7 March 2011 at 10.30 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of two years three months imprisonment imposed on the charge of aggravated robbery is quashed.

100. We substitute on that charge a sentence of two years imprisonment.

4. The cumulative sentence of eight months imprisonment imposed on other charges remains unaffected.
   

REASONS OF THE COURT
(Given by Allan J)

[1] Mr O’Donnell appeals against a sentence of two years three months imprisonment imposed in the Rotorua District Court on 25 June 2010, on a charge of aggravated robbery. He was sentenced by Judge Weir at the same time on unrelated charges of driving while disqualified and of breach of release conditions. A cumulative sentence of eight months imprisonment was imposed on those charges, bringing the overall sentence to two years 11 months imprisonment. There is no appeal in respect of the sentences imposed on the unrelated charges.
[2] Mr Quilliam argues in respect of the sentence imposed on the aggravated robbery charge that there was an unjustified disparity between that sentence and those imposed upon the appellant’s co-offenders. He contends also that Judge Weir departed from a sentencing indication given some time earlier by Judge Cooper.

Factual background

[3] On 19 September 2008, the appellant, together with his co-offenders, Mr Le Mon and Mr Karini, drove to a residence in Taupo where they confronted the female victim who was at home alone, and engaged in cooking a meal. The offenders were known by the victim to be members of the Mongrel Mob. There is a dispute about the extent to which the regalia worn by the appellant and his co-offenders was visible at the time, but little turns on that.
[4] The victim was threatened and menaced by the offenders, apparently because she and her partner were thought to have been narks. The summary of facts upon which Mr O’Donnell pleaded guilty claimed that he was carrying a baseball bat, and that he told the victim that he would return and kill her partner. Each of these contentions has subsequently been denied by the appellant; no separate charges were laid. Judge Weir noted that there was a dispute about the presence of the baseball bat, and seems to have discounted that aspect, but he did take into account the threat to kill without finding that the threat was made by the appellant, as distinct from one of his co-offenders. He considered that the fairest approach was to conclude that all three co-offenders were “in it together”. That assessment was plainly open to him.
[5] There had been a claim by Mr Le Mon that the appellant was the local “sergeant of arms” and that he effectively called the shots. The appellant himself denied that. The Judge noted Mr Le Mon’s contention but held that, putting that aspect to one side, this was clearly a joint enterprise involving exactly the sort of activity in which local Mongrel Mob members habitually engaged.
[6] The appellant sought to distance himself from his co-offenders by arguing that he remained in the rear while the others directly confronted the victim. He also claimed that he played a limited role in removing from the property various small property items which he and his co-offenders took away with them, so justifying the aggravated robbery charge.
[7] We consider that the Judge was well entitled to take the view that this was group offending, for which each accused must shoulder equal blame.

Parity

[8] Mr Karini was not sentenced on the aggravated robbery charge. He was successful in obtaining a discharge under s 347 of the Crimes Act 1961. Instead he was sentenced on a substituted charge of theft. But at the same time he was also sentenced in respect of an unrelated charge of injuring with intent to injure. For that he received a sentence of two and a half years imprisonment; a cumulative term of two months was imposed for the theft. We agree with Ms Laurenson that it is difficult to compare Mr Karini’s case in any meaningful way with that of the appellant.
[9] Judge Cooper, who sentenced Mr Le Mon, adopted a starting point of two years imprisonment by reference to the guideline judgment of this Court in R v Mako.[1] There, the Court suggested a starting point range of 18 months to three years for cases of:[2]

... street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs.

[10] We agree with Ms Laurenson that this offending, although taking place in the victim’s home and so perhaps a little more serious, otherwise fits within that category. The starting point of two years imprisonment chosen in Mr Le Mon’s case was therefore thoroughly understandable. Judge Cooper imposed an uplift of six months by reason of Mr Le Mon’s previous convictions, and then deducted six months in order to allow a credit “ ... for your efforts at changing your life ...” and a further six months for Mr Le Mon’s guilty plea “ ... and acceptance of responsibility for your actions”. That produced an end sentence of 18 months imprisonment.
[11] Ultimately however, Judge Cooper sentenced Mr Le Mon to eight months home detention. Mr Le Mon’s recent worthwhile lifestyle and promising personal initiatives plainly impressed both the probation officer and the sentencing Judge.
[12] Judge Weir similarly adopted a starting point of two years imprisonment with respect to the appellant, and he imposed an identical uplift of six months imprisonment in order to take account of the appellant’s previous record. Judge Weir identified 10 previous convictions for violent offending, including a conviction for wounding with intent to cause grievous bodily harm.
[13] There is a degree of uncertainty about the appellant’s previous record. Mr Quilliam accepts that there are seven previous convictions for violence including a charge of wounding with intent to cause grievous bodily harm in 1993.
[14] Ms Laurenson points to previous convictions for threatening to kill (x 1), male assaults female (x 2), common assault (x 2), threatening behaviour (x 1), assaulting a police officer (x 1) and wounding with intent to cause grievous bodily harm (x 1).
[15] Whatever the true position, it cannot seriously be argued in our view that an uplift of six months for this somewhat dismal record of prior violent offending was not open to the Judge. We do not overlook the fact that there was no actual violence in the present case, but the intimidation to which the victim was subjected must have been terrifying.
[16] Mr Quilliam argues also that there was room for a discount in the present case, in order to reflect recent positive changes in the appellant’s life. Certain material, which might have made a difference to the ultimate sentencing outcome, was not before the Judge. Had it been, Mr Quilliam argues, a discount comparable to that allowed Mr Le Mon might well have been warranted.
[17] In order to place that submission in its proper context, it is necessary to set out aspects of the relevant procedural history.
[18] The appellant pleaded guilty on arraignment on 30 October 2009 and was remanded to 27 November 2009 for sentencing. Mr O’Donnell failed to report to the Department of Corrections in order to facilitate the preparation of a pre-sentence report. He also failed to appear in Court for sentence. A warrant to arrest was issued. He was not apprehended until mid-2010, when he was remanded in custody. He explained his absence by reference to his recent employment in the logging industry, and his desire not to lose that employment. An earlier pre-sentence report was not updated.
[19] Through Mr Quilliam, the appellant argues that a more recent report would have painted him in a much more favourable light, in that it would have covered:

• His improved employment situation;
• The fact that he was not a sergeant at arms in the Mongrel Mob;
• The existence of a stable relationship with a woman who was having a positive influence upon him;
• The severance of his links with the Mongrel Mob.

[20] In addition, there seem to have been certain testimonials which were not produced to the sentencing Judge by the appellant’s former counsel and which (save for one), have now been destroyed by the appellant.
[21] An updated pre-sentence report was however prepared for the purposes of this appeal, the probation officer having interviewed the appellant on 14 February 2011. In that report, the appellant’s relationship with a partner is confirmed. It seems that the relationship has continued “on and off” over some 12 years. The couple have three children aged ten, eight and one. The appellant’s partner confirms that she is standing by him and that the family unit (which includes two children of hers by a former relationship) will reform once the appellant is released.
[22] It is fair to say, however, that the appellant’s contemporary efforts at self-improvement appear to have been modest. The probation officer was not especially impressed with him at the interview. Of particular concern was Mr O’Donnell’s tendency to downplay his role in the offending, to attack the accuracy of the summary of facts, and to disparage the victim. The probation officer concluded that Mr O’Donnell displayed no remorse and little insight into his offending, and considered that the appellant’s attempts to distance himself from the Mongrel Mob have yet to bring about any meaningful attitudinal change.
[23] We conclude therefore, that the preparation of an up to date pre-sentence report for the sentencing Judge would not have produced a discount of the type enjoyed by Mr Le Mon. We are satisfied also that there is no proper basis to disturb the appellant’s sentence on disparity grounds. Mr Le Mon’s rehabilitative prospects were plainly brighter than those of the appellant.

Sentencing indication

[24] Mr Quilliam’s second argument is that Judge Weir sentenced Mr O’Donnell without reference to an earlier sentencing indication given by Judge Cooper in circumstances where the appellant was entitled to rely upon that indication.
[25] We are hampered somewhat in considering this submission, by reason of the absence of a detailed record of what occurred in Court at the time. Mr Quilliam did not appear for the appellant in the District Court at that stage. Ms Laurenson for the Crown has been unable to locate a copy of the sentencing indication notes. She observes though, that there is nothing to suggest that the indication was accepted.
[26] However, the available material does lend some weight to the appellant’s contentions. Mr Farquhar, who appeared for the appellant at the time, wrote to counsel who was acting for Mr O’Donnell in May 2010, to advise that the Judge had indicated a possible sentence of under two years, and the possibility of home detention, although the latter alternative was not recommended by the probation officer.
[27] We do have a copy of the District Court indictment which bears a record made by the Registrar at the time of the appellant’s appearance before Judge Cooper on 30 October 2009. It records the appellant’s arraignment, his plea of guilty, his conviction, and a remand on bail to 27 November 2009 for sentence. There is also notation that pre-sentence and victim impact reports were to be obtained, together with a home detention appendix for the pre-sentence report.
[28] The request for a home detention appendix lends some weight, we think, to the contention that Judge Cooper may well have given a sentencing indication of two years or less. Mr Farquhar’s letter provides further confirmation. We think the safest course is to proceed on the basis that such an indication was given.
[29] Against that background, we must consider what, if any, adjustment ought to be made to the appellant’s sentence in order to reflect what occurred.
[30] Ms Laurenson submits that there is nothing to suggest that an indication (if indeed given), was accepted, with the result that the appellant is not entitled to be sentenced by reference to it.[3]
[31] However, we are uneasy about adopting that approach. It is, as we have said, a proper inference from the Court record that the Judge had indeed given a sentencing indication of two years imprisonment on 30 October 2009. If that is so, the appellant’s guilty plea was entered in reliance on the indication and it could not be said that the sentencing indication had not therefore been accepted. If Judge Weir had later declined to take it into account, then it would have been open to the appellant to apply to vacate his plea of guilty. But at sentencing, the position seems to have been that both Judge Weir and counsel were either unaware of, or had simply overlooked, the earlier indication. Mr O’Donnell was represented by new counsel, and he himself may not have understood the extent of his entitlement to rely on Judge Cooper’s indication.
[32] We conclude that it would be proper on appeal to adjust the appellant’s sentence in order to recognise, to some degree, the appellant’s likely reliance upon the sentencing indication when he entered his plea of guilty.
[33] But we are not disposed to bring the sentence completely into line with the sentencing indication. That is because the appellant took it upon himself to abscond following arraignment and the entry of his guilty plea. He did not report to the probation officer for preparation of the pre-sentence report; neither did he appear for sentence. He was not apprehended for many months. Had he complied with his obligations at the time it is much more likely that he would have been sentenced in accordance with the sentencing indication, probably by the same Judge. Moreover, it would be sending completely the wrong message were we to overlook entirely the appellant’s apparent disdain for orders of the Court.
[34] On the aggravated robbery charge, Judge Weir took a starting point of two years imprisonment, uplifted by six months to take account of the appellant’s previous record, and then discounted by 10 percent for a belated plea of guilty. Mr Quilliam does not cavil at the 10 per cent discount.
[35] We consider that the proper response on appeal is to reduce the uplifted starting point from two years six months to two years three months on the charge of aggravated robbery. There will be no change to the three months’ discount for the guilty plea. The result is that the sentence on that charge is reduced from two years three months to two years.
[36] There is no challenge to the cumulative sentence in respect of the charges of driving while disqualified and breach of release conditions.

Result

[37] The appeal is allowed. The sentence of two years three months imprisonment imposed in respect of the charge of aggravated robbery is quashed. We substitute a sentence of two years imprisonment. The cumulative sentence of eight months imprisonment imposed in respect of the charges of driving while disqualified and of breach of release conditions remains unaffected.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] R v Mako [2000] 2 NZLR 170 (CA).
[2] At [59].
[3] R v Edwards [2006] 3 NZLR 180 (CA) at [41].