O’REILLY v R [2019] NZCA 253

O'REILLY v R [2019] NZCA 253 [25 June 2019]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA39/2018[2019] NZCA 253BETWEEN JASON MARK O'REILLYAppellantAND THE QUEENRespondentHearing: 11 April 2019Court: Clifford, Katz and Thomas JJCounsel: L O Smith for AppellantM H Cooke for RespondentJudgment: 25 June 2019 at 4 pmJUDGMENT OF THE COURTA The application for leave to adduce fresh evidence is declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Following a jury trial, Jason O'Reilly was found guilty of 18 charges of sexualoffending (sexual violation and indecent assault) against two sisters. Seventeencharges related to the older sister (A) whom Mr O'Reilly offended against from thetime she was aged eight until she was 12. The remaining charge relates to the youngersister (B).[2] Judge R G Marshall sentenced Mr O'Reilly to 12 years' imprisonment, with aminimum period of imprisonment ("MPI") of six years.1 Mr O'Reilly does notchallenge the length of his sentence, but appeals the imposition of an MPI. He seeksto introduce fresh evidence from a psychologist, Mr van Rensburg, in support of hisappeal. We deal with both the application to adduce fresh evidence, andthe substantive appeal, in this judgment.[3] Shortly before the hearing the Crown filed a memorandum raising an issueregarding name suppression. That issue was not able to be dealt with at the appealhearing. Rather, it has been determined on the papers subsequently, by way of aseparate judgment that is being released contemporaneously with this one.Factual Background[4] Mr O'Reilly's offending took place between 2012 and 2016. It started withMr O'Reilly rubbing A's vagina. He told her not to tell anyone and threatened to hurther family members if she did. From that time onwards, Mr O'Reilly would regularlyremove A's pants and rub and place his fingers inside her vagina.[5] Over time the offending increased in severity. A's evidence was thatMr O'Reilly would sexually violate her two or three times a week. He forced A tomasturbate him, touched her breasts, and digitally penetrated her. Mr O'Reilly alsoperformed oral sex on her and forced her to perform oral sex on him.[6] In June 2016 A disclosed to her school guidance counsellor that she had beensexually abused by Mr O'Reilly for the past four years. This prompted charges beinglaid against him.[7] Mr O'Reilly also exposed his penis to B and her friend on one occasion.On another occasion he exposed his penis to A and her friends.1 R v O'Reilly [2017] NZDC 28508.District Court sentencing[8] The Judge held that the offending fell within band three of the tariff case ofR v AM.2 He determined that 13 years' imprisonment was the appropriate startingpoint. He reduced this by one year to take account of Mr O'Reilly's previous goodcharacter. The deliberateness, degree and nature of the offending were aggravatingfactors, alongside the vulnerability of A, the breach of trust that the offending entailed,and the impact on A and her family. Also significant was the fact Mr O'Reilly wasunwilling to accept responsibility for his offending. Mr O'Reilly was assessed asbeing at high risk of re-offending and causing harm to others, especially vulnerablechildren.[9] Section 86 of the Sentencing Act 2002 provides that the Court may impose anMPI of no more than two-thirds of the sentence if it is satisfied that the normalone-third non-parole period, under the Parole Act 2002, is insufficient for any or all ofthe following purposes:(a) holding the offender accountable for the harm done to the victim andthe community by the offending;(b) denouncing the conduct of the offender;(c) deterring the offender or others from committing the same or a similaroffence;(d) protecting the community from the offender.[10] When considering whether an MPI should be imposed, the Judge wasparticularly concerned by Mr O'Reilly's lack of acceptance of responsibility.The Judge considered that this meant he fell within a higher risk category as anuntreated sex offender. Given the seriousness, scale and length of the offendingagainst a vulnerable child, the Judge was not satisfied that a one-third non-parole2 At [18], citing R v AM [2010] NZCA 114, [2010] 2 NZLR 750.period would be sufficient to meet the purposes set out in s 86. He therefore imposeda 50 per cent MPI of six years' imprisonment.3Did the Judge err in imposing an MPI?[11] Mrs Smith submitted that the imposition of an MPI was inconsistent withrecent case law and was not necessary in all the circumstances.Was the imposition of an MPI inconsistent with similar cases?[12] A sentencing Judge must have regard to s 8(e) of the Sentencing Act(the general desirability for consistency in sentencing) both in deciding whether or notto impose an MPI and assessing the appropriate length.4[13] In R v AM, this Court noted that "the imposition of an MPI of at least half ofthe nominal sentence is very routine" in cases concerning multiple counts of sexualoffending against children.5 Mrs Smith placed reliance, however, on a recentHigh Court case, R v Martin, where an MPI was not imposed.6[14] In R v Martin, Mr Martin pleaded guilty to sexual offending against threechildren who were aged between six and 15 at the time of the offending. Mr Martinwas relatively young at the time of the offending (aged 17 to 25) and had himself beena victim of sexual offending as a child. Prior to sentencing, Mr Martin took part ina restorative justice process over two days. The sentencing Judge described thatconference as being "by all accounts, a remarkable event" that was of immeasurablevalue to Mr Martin, his victims, and the wider whānau.7 Mr Martin was deeplyremorseful and took full responsibility for his actions.[15] The Judge gave particular weight at sentencing to the restorative justiceprocess he had engaged in, his remorse, and his guilty pleas. Those factorsdemonstrated that he had accepted responsibility for his offending and gained insight3 At [20].4 R v AM, above n 2, at [155]. See also R v Gordon [2009] NZCA 145 at [17]; R v LaungaueCA32/06, 1 September 2006; and R v Wellm [2009] NZCA 175 at [23].5 R v AM, above n 2, at [156].6 R v Martin [2017] NZHC 1571.7 At [27].into its seriousness.8 Further, they would help protect the community from the risk ofsuch offending in the future. Further community protection was provided by thelength of the sentence and Mr Martin's commitment to rehabilitation during his prisonsentence. That the offending was relatively historical, and Mr Martin's relative youthat the time of the offending was also relevant. Taking all of these factors into account,the Judge concluded that the purposes of accountability, deterrence, denunciation andcommunity protection were adequately met without the imposition of an MPI.[16] The facts of the present case, however, are far removed from those of Martin.Mr O'Reilly did not plead guilty but was found guilty following a jury trial. He hasnot demonstrated any remorse or insight into his offending, which he continues todeny. Lack of responsibility and insight has been recognised as a factor pointingtowards a greater risk of reoffending, favouring the need for an MPI.9 Nor canMr O'Reilly rely on youth as a mitigating factor. He was in his forties when heoffended.[17] Further, Martin does not reflect a "move away" from the R v AM approach, asMrs Smith submitted. Each case will turn on its own facts. Martin simply reflects acareful application of the s 86 criteria to the particular facts of that case (which weresomewhat unusual). Due to the very significant differences between this case andMartin, reference to that case does not support the submission that the imposition ofan MPI was inappropriate in this case.Should the Judge have declined to impose an MPI on the basis that it is not"necessary"?[18] Mrs Smith submitted that the imposition of an MPI on Mr O'Reilly was notnecessary. The reason for this, she submitted, was that due to the operational practicesand procedures of the Department of Corrections (relating to when offenders areeligible to attend rehabilitative programmes) it is highly unlikely that Mr O'Reilly willbe released prior to serving 50 per cent of his sentence, even without the impositionof an MPI. The consequence of imposing a 50 per cent MPI, Mrs Smith submitted, is8 At [47].9 Pomare v R [2015] NZCA 191 at [11].that Mr O'Reilly is unlikely to be released (at the earliest) until he has served close totwo-thirds of his sentence.[19] In support of this argument, Mrs Smith sought leave to adduce an affidavitfrom an Auckland psychologist, Mr van Rensburg, as fresh evidence on appeal.Mr van Rensburg's affidavit covers the following matters:(a) the stage at which prisoners convicted of sexual offending are eligibleto commence a programme to address their sexual offending;(b) how much of a backlog there is at present for sexual offenders seekingto do such a programme;(c) when a sentenced prisoner can get on the waiting list for a sex offendertreatment programme;(d) whether the Parole Board and Corrections have a policy about sexoffenders doing a programme before they have served their MPI; and(e) whether an MPI is "necessary" in sexual cases involving longsentences.[20] Rule 12B of the Court of Appeal (Criminal) Rules 2001 governsthe admissibility of fresh evidence:12B Fresh evidence(1) If a ground of appeal is that there was a miscarriage of justice becausefurther evidence has become available since the trial, particulars ofthe further evidence must be set out in—(a) the notice of appeal; or(b) a memorandum to be filed and served by the appellant within30 working days of filing the notice of appeal.(2) The appellant must, within 30 working days of filing the notice ofappeal, file and serve on the prosecutor any affidavits that relate to theground of appeal.(3) The affidavits must—(a) set out the further evidence; and(b) explain why the further evidence was not available at the trialand why it could not, with reasonable diligence, have beencalled.(4) The prosecutor must file and serve any affidavit in reply within15 working days after service of the appellant's affidavit.[21] Mr van Rensburg's evidence is clearly credible. It is not, however, fresh as itcould have been obtained with reasonable diligence prior to sentencing.10 Overall, wehave not been persuaded that failure to admit this evidence would be contrary to theinterests of justice, for the reasons outlined below.[22] In essence, the argument Mrs Smith seeks to advance, based onMr van Rensburg's evidence, is that the community will be protected fromMr O'Reilly for at least half the term of his sentence, even if an MPI is not imposed.This is because, it is claimed, Corrections do not refer high risk sex offenders totreatment programmes until relatively close to their parole eligibility date. It takessome time, however, to complete an intensive rehabilitation programme. As a result,Mrs Smith submitted, there is currently no realistic prospect of high risk sex offendersbeing released on or close to their parole eligibility date and the imposition of an MPIof 50 per cent on Mr O'Reilly is therefore not "necessary". Even without an MPI, sheargued, he will almost certainly serve 50 per cent or more of his sentence before he isparoled. (The same argument would presumably apply equally to all or most sexualoffenders sentenced to long terms of imprisonment.)[23] A sentencing Judge is required to have regard to all four of the criteria in s 86,namely the need to hold the offender accountable for the harm done, denouncing theoffender's conduct, deterrence, and community protection. The argument advancedby Mrs Smith (and Mr van Rensburg's evidence) is primarily directed to the fourthfactor. While community protection is an important factor, MPIs are also imposed tohold offenders publicly accountable for the harm they have done, to denounce theirconduct and to deter them and others from offending in a similar way. Those purposesare also important and must be carefully considered by a sentencing Judge.In R v Gordon, this Court described the overall purpose of s 86 as conferring a degreeof reality on the sentence and outcome where the offending is so serious that releaseafter one-third of the sentence would be insufficient in the eyes of the community.1110 Lundy v R [2013] NZPC 28, [2014] 2 NZLR 273 at [120].11 R v Gordon, above n 4, at [15].[24] Mrs Smith did not suggest that it would be unjust or manifestly excessive forMr O'Reilly to be required to serve 50 per cent of his sentence before being eligiblefor parole. It follows that the sentence, as imposed by the Court, is not manifestlyexcessive. In reality, Mr O'Reilly's complaint is that due to the (current) manner inwhich Corrections is said to manage the treatment of sex offenders, he may well haveto serve more than 50 per cent of his sentence before the Parole Board will considerhim to be suitable for parole.[25] Concerns or complaints as to the manner in which Corrections manages highrisk sex offenders, and the impact this may have on their ability to obtain parole in atimely fashion, may (or may not) give rise to grounds for a claim against Corrections.Such matters cannot, however, justify a sentencing Judge declining to impose an MPIin circumstances where the normal one-third non-parole period would be inadequateto meet the purposes set out in s 86.[26] In this case we are satisfied that the Judge was correct to conclude that the s 86factors, considered as a whole, warranted the imposition of an MPI.Result[27] The application for leave to adduce fresh evidence is declined.[28] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent