O'Brien v The King - [2023] NZHC 134

SEE [89] – ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ACCUSED

PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-63

[2023] NZHC 134

BETWEEN
CASSANDRA TAIRIRI O’BRIEN

Appellant

AND

THE KING

Respondent

Hearing (by VMR): 7 February 2023

Counsel:

T Cooper KC for the Appellant H Bullock for the Respondent

Judgment:

8 February 2023

JUDGMENT OF GWYN J

(Sentence appeal)

Solicitors:
Crown Solicitor, New Plymouth

O’BRIEN v R [2023] NZHC 134 [8 February 2023]

Introduction

[1]Cassandra Tairiri O’Brien, who is 44 years old, is the appellant in this matter.

[2] The appellant pleaded guilty to conspiracy to supply the class A drug methamphetamine1 with two co-offenders.2 First, R, a close family member, and second, another family member (K), from whose house R sold methamphetamine. R is the lead offender. He faces two charges, to which he has pleaded not guilty:

(a)supplying a class A controlled drug;3 and

(b)possession of a class A controlled drug for supply.4

[3] Judge Greig sentenced K to eight months’ home detention5 on 16 December 2022 after she pleaded guilty to one count of allowing her premises to be used for supply of methamphetamine.6

[4] On 16 December 2022 the District Court sentenced the appellant to three years’ imprisonment.7

[5] The appellant filed a notice of appeal against Judge Greig’s sentence decision on 16 December 2022.

[6] On 21 December 2022 the District Court granted the appellant bail pending her appearance at the New Plymouth High Court on 3 February 2023.

[7] The ground of appeal she relies upon is that the sentence was manifestly excessive.

1      Misuse of Drugs Act 1975, sch 1.
2      Section 6(2A). The maximum penalty is 14 years’ imprisonment: see s 6(2A)(a).
3      Section 6(1)(c) and (2)(a). The maximum penalty is life imprisonment.
4      Section 6(1)(c), (f) and (2)(a). The maximum penalty is life imprisonment.
5      R v O’Brien [2022] NZDC 25088 at [22].
6      Misuse of Drugs Act, s 12. The maximum penalty is 10 years’ imprisonment: see s 12(2)(a).
7      R v O’Brien [2022] NZDC 25011.

[8] The Crown opposes the appeal and submits that the end sentence of three years’ imprisonment was within the range available to the Judge.

Factual background

[9] In March 2020 the Police started an operation to target methamphetamine supply in Taranaki, with the primary target of this operation being the co-defendant R.

[10] The appellant was based in Auckland. She facilitated contact with her cousin who supplied the co-defendant R with methamphetamine, which he then supplied in the Taranaki region.

[11] On 5 November 2020 R told the appellant he would lend her money, provided he made money in the following two months.

[12] On 6 December 2020 the Police arrested R, who possessed 443 grams of methamphetamine that he bought from the appellant’s cousin.

[13] The appellant facilitated R’s purchase of the methamphetamine from her cousin. On 30…

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 O'Brien v The King

Details

AGLC: O'Brien v The King [2023] NZHC 134
Case: [2023] NZHC 134
Decision Date: 8 February 2023

CaseChat Overview and Summary

Cassandra Tairiri O'Brien, a 44-year-old woman, appeals against the sentence imposed by the District Court for her involvement in a conspiracy to supply methamphetamine. The appellant pleaded guilty to conspiracy to supply the drug and was sentenced to three years' imprisonment. The grounds for the appeal are that the sentence was manifestly excessive. The Crown opposes the appeal, arguing that the sentence was within the range available to the Judge. The legal issues in this case revolve around the starting point for sentencing, the role the appellant played in the offending, and the appropriate discount for mitigating factors.

In assessing the starting point for sentencing, the Court considered the role the appellant played in the offending. While the appellant's involvement was significant, the Court found that her role was more appropriately characterised as "lesser" in terms of the three categories of roles set out in Zhang v R. The Court arrived at a starting point of four years and six months' imprisonment. The Court also considered the mitigating factors, such as the appellant's remorse, good character, and cultural background. The Court admitted and considered the s 27 cultural report, which highlighted the appellant's challenging background and personal circumstances. After applying the appropriate discounts, the Court determined that the end sentence of one year and eight-and-a-half months' imprisonment was appropriate, making the appellant eligible for home detention.

The Court found that the Judge erred in the sentencing decision by not adequately reflecting the lesser role the appellant played in the offending. As a result, the end sentence was manifestly excessive. The appeal is allowed, and the appellant is sentenced to ten months' home detention with specific conditions. The co-offender's name and identifying details remain suppressed until trial or resolution under s 200(2)(d) of the Criminal Procedure Act 2011.

Orders