O'Brien v The Queen - [2019] NZCA 83

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA390/2017
[2019] NZCA 83

BETWEEN	MICHAEL JOSEPH O’BRIEN Appellant
AND	THE QUEEN Respondent

CA394/2017
BETWEEN	KEVIN MARTIN COFFEY Appellant
AND	THE QUEEN Respondent

Hearing:	21 May 2018
Court:	Williams, Venning and Mander JJ
Counsel:	R B Squire QC for Appellant O’Brien N Levy for Appellant Coffey G J Burston and M J Ferrier for Respondent
Judgment:	1 April 2019 at 3 pm

JUDGMENT OF THE COURT

AThe application to adduce fresh evidence in CA390/2017 is granted.
BThe appeal in CA390/2017 is dismissed.
CThe appeal in CA394/2017 is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Table of Contents

Introduction [1]
Background [5]

Class 4 gambling licences  [5]
The DIA forms a negative view of Michael O’Brien  [9]
Bluegrass obtains licences  [12]

SFO Investigation [20]
The charges [21]

The Bluegrass charges [24]
The venue charges [28]

High Court verdicts [32]

Charge 11: Bluegrass operators’ licence - Michael O’Brien and Mr Coffey [32]
(a)      Deception  [33]
(b)       Causation  [38]
(c)       Value  [40]
Charge 12: Michael O’Brien’s control of Bluegrass grants  [42]
Charge 12: Mr Coffey’s role in relation to Bluegrass grants  [50]
Venue licences: Michael O’Brien and Mr Max  [52]
Charge 14: Hardy’s Bar  [54]
Charge 13: The Hardware Bar  [56]
Charge 15: The Terrace Tavern  [58]
Specific defence challenges to venue charges  [61]

Application to adduce further evidence on appeal [70]
Charge 11: Michael O’Brien’s appeal against conviction [73]

Causation  [73]
Analysis  [75]
Valuation  [81]
Analysis  [84]

Charge 11: Mr Coffey’s appeal against conviction [89]

Causation  [90]
Analysis  [91]
Benefit  [100]
Value  [104]
Benefit and intention  [105]

Charge 12: Michael O’Brien’s appeal against conviction [110]

Analysis [114]

Charges 13–15: The Venue Licences [123]

The causation issues  [126]
Venue licence value  [136]
Validity of the venue licence in Charge 15  [140]

Sentence appeal: Michael O’Brien [145]

The sentence  [145]
Submissions  [152]
Analysis  [153]
Conclusion  [158]

Sentence appeal: Mr Coffey [159]

Analysis [167]
Conclusion [169]

Result [170]

Introduction

On 15 June 2017, following a Judge alone trial, the appellants Michael O’Brien and Kevin Coffey were found guilty and convicted by Dobson J of offences arising out of a gambling licencing scheme orchestrated by Michael O’Brien.[1]
[1]R v O’Brien [2017] NZHC 1317 [Verdicts judgment].
Michael O’Brien was convicted of five counts of obtaining a benefit by deception and sentenced to four years and six months’ imprisonment.[2] Mr Coffey was convicted of one count of obtaining a benefit by deception and sentenced to 12 months’ home detention.[3]
[2]R v O’Brien [2017] NZHC 1625 at [65] [Sentencing notes].
[3]Sentencing notes, above n 2, at [65].
Both men appeal against conviction and sentence.
For completeness, we note that two other men were charged with related offending. Paul Max was convicted as a co-offender on three of the five counts on which Michael O’Brien was convicted. He has not appealed. Patrick O’Brien (Michael O’Brien’s father) was also charged as a co-offender with Michael O’Brien on the remaining two charges but…

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 Queen

Details

AGLC: O'Brien v The Queen [2019] NZCA 83
Case: [2019] NZCA 83
Decision Date: 1 April 2019

CaseChat Overview and Summary

Michael O'Brien and Kevin Coffey were convicted by the High Court of obtaining benefits by deception in relation to class 4 gambling licences. O'Brien was convicted on five counts and sentenced to four years and six months' imprisonment, while Coffey was convicted on one count and sentenced to 12 months' home detention. Both men appealed against conviction and sentence. The Court of Appeal dismissed both appeals, upholding the convictions and sentences. The key issues were whether the deceptions were material and whether the licences obtained were worth more than $1,000. The Court found that the deceptions were material and that the licences were worth more than $1,000, upholding the convictions. On sentence, the Court found that the starting points and uplifts applied by the High Court were appropriate given the seriousness of the offending. The deceptions involved elaborate schemes to conceal O'Brien's involvement in obtaining the licences and controlling the grant proceeds, taking advantage of his prior experience in the industry. The sentences reflected the need to denounce the offending and deter similar conduct in the future.

Orders