DANIEL JAMES O’BRIEN AND THE KING - [2024] NZCA 476

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA294/2024
[2024] NZCA 476

BETWEEN	DANIEL JAMES O’BRIEN Appellant
AND	THE KING Respondent

Hearing:	2 September 2024
Court:	Thomas, Whata and Grice JJ
Counsel:	M J James and S S Pohiva for Appellant T R Simpson for Respondent
Judgment:	23 September 2024 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe concurrent sentences of five years and five months’ imprisonment are quashed.
CConcurrent sentences of four years, one month and two weeks’ imprisonment are substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Grice J)

Mr O’Brien was sentenced on 19 April 2024 after pleading guilty to charges of supplying methamphetamine (representative charge) and offering to supply methamphetamine (representative charge).[1] He was discharged on application by the Crown on a further charge of possession of methamphetamine for the purposes of supply.[2] He was sentenced to five years and five months’ imprisonment.[3]
[1]Misuse of Drugs Act, s 6(1)(c) and 6(2)(a) — maximum penalty life imprisonment.
[2]Sections 6(1)(f) and 6(2)(a).
[3]R v O’Brien [2024] NZDC 8758 [sentencing notes].
Mr O’Brien appeals against his sentence. He confined his appeal in submissions to one ground, contending that the sentence was manifestly excessive and specifically that the starting point adopted was too high.

Approach on appeal

An appeal against sentence may be brought as of right under s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied there has been an error in the sentence and that a different sentence ought to be imposed.[4] In the vast majority of cases, the court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.[5] A sentence appeal “will almost always turn on a consideration of whether the final outcome is manifestly excessive”, rather than the “route by which the Judge reached that outcome”.[6]

Law in relation to serious drug offending

[4]Criminal Procedure Act 2011, s 250(2).

[5]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

[6]Ripia v R [2011] NZCA 101 at [15]. See also Kumar v R [2015] NZCA 460 at [81].

The guideline judgment for serious drug offending is Zhang v R.[7] It sets out a number of bands for methamphetamine offending. The bands articulated in Zhang are as follows:[8]
(a)band one: less than 5 grams — community to four years;
(b)band two: less than 250 grams — two to nine years;
(c)band three: less than 500 grams — six to 12 years;
(d)band four: less than 2 kilograms — eight to 16 years; and
(e)band five: more than 2 kilograms — 10 years to life.
[7]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[8]At [125].
A summation approach to quantity across different convictions is appropriate.[9]
[9]Malolo v R [2022] NZCA 399 at [18].
The role of the offender — in other words, what they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DANIEL JAMES O’BRIEN AND THE KING

Details

AGLC: DANIEL JAMES O’BRIEN AND THE KING [2024] NZCA 476
Case: [2024] NZCA 476
Decision Date: 23 September 2024 at 11.30 am

CaseChat Overview and Summary

Daniel James O'Brien appealed against his sentence of five years and five months' imprisonment for supplying and offering to supply methamphetamine, arguing that the sentence was manifestly excessive. The Court of Appeal was required to determine whether the District Court had erred in its assessment of O'Brien's role in the drug operation, and if the starting point for sentencing was correctly set. The Court also needed to decide whether the overall sentence was manifestly excessive.

The Court of Appeal found that the District Court had erred in categorising O'Brien's role as "significant" rather than "lesser". O'Brien's operation involved supplying numerous individuals, including repeat customers, rather than directing others in a chain. The amounts of methamphetamine supplied and offered were relatively low, and there was no evidence to suggest that O'Brien held an operational management function. The Court concluded that a starting point of six years, rather than seven and a half years, was more appropriate. After applying the relevant uplifts and discounts, the Court substituted the original sentence with one of four years, one month, and two weeks' imprisonment.

The appeal against sentence was allowed. The original concurrent sentences of five years and five months' imprisonment were quashed, and concurrent sentences of four years, one month, and two weeks' imprisonment were substituted.

Orders