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O'Carroll v R

O'Carroll v R

Case [2016] NZCA 510 20 October 2016

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA620/2015
[2016] NZCA 510

BETWEEN	DAVID GERRARD O’CARROLL Appellant
AND	THE QUEEN Respondent

CA641/2015
BETWEEN	MICHAEL JOSEPH CAVANAGH Appellant
AND	THE QUEEN Respondent

CA687/2015
BETWEEN	NIGEL JOHN BOWKER Appellant
AND	THE QUEEN Respondent

CA54/2016
BETWEEN	SHANNON STEVENS Appellant
AND	THE QUEEN Respondent

Hearing:	8–10 August 2016
Court:	Winkelmann, Williams and Collins JJ
Counsel:	R M Mansfield for Mr O’Carroll S J Bonnar QC and C S Fredric for Mr Cavanagh J G Krebs and G C Gotlieb for Mr Bowker T M Cooper for Ms Stevens K S Grau for Respondent
Judgment:	20 October 2016 at 11.30 am

JUDGMENT OF THE COURT

AMr O’Carroll’s appeal against conviction is dismissed.

B Mr Cavanagh’s appeal against sentence is allowed in part.

CMr Cavanagh’s minimum period of imprisonment of two years and 11 months is quashed.
DMr Bowker’s appeal against sentence is dismissed.
EMs Stevens is granted an extension of time in which to appeal.
F Ms Stevens’ appeal against sentence is allowed.
G Ms Stevens’ sentence of 15 years and nine months’ imprisonment with a minimum period of imprisonment of seven years and 10 months is quashed.
HMs Stevens is re-sentenced to a period of imprisonment of 13 years and six months with a minimum period of imprisonment of six years and nine months.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Table of Contents

Para No
Introduction  [1]
Mr Cavanagh’s sentence appeal  [3]
           Offending for which Mr Cavanagh was sentenced  [4]
           Grounds of appeal  [14]
           Ground of appeal: Starting point too high  [15]
           Ground of appeal: Uplift of 18 months to reflect other offending
            too great  [26]
           Ground of appeal: Discount for time spent remanded in custody
            on recall  [28]
           Ground of appeal: The Judge failed to adequately adjust the
            sentence to ensure that the totality of the sentence imposed
            was not too great  [31]
           Ground of appeal: Minimum period of imprisonment                   [39]
           Result on Mr Cavanagh’s sentence appeal  [42]
Mr Bowker’s sentence appeal  [43]
           Ground of appeal: Starting point  [50]
           Ground of appeal: Insufficient credit given for personal
            rehabilitation and time spent on restrictive bail conditions         [54]
           Ground of appeal: Insufficient credit given for discount for
            guilty pleas  [60]
Ground of appeal: Imposition of minimum period of
            imprisonment was not appropriate  [63]
           Result on Mr Bowker’s sentence appeal  [67]
Mr O’Carroll’s conviction appeal  [68]
First ground of conviction appeal: Verdict unreasonable on the
March manufacturing charge  [72]

Analysis — Co-conspirators issue  [81]
           Analysis — Sufficient evidence  [89]
           Second ground of conviction appeal: Propensity direction           [97]
           The treatment of the propensity evidence at trial  [99]
           Third ground of conviction appeal: New evidence  [108]
           Analysis  [118]
           Result on Mr O’Carroll’s conviction appeal  [125]
Ms Stevens’ sentence appeal  [126]
Extension of time to appeal  [126]
           Background facts[127]
           First ground of appeal: Guilty plea at first reasonable
            opportunity?  [132]
           Second ground of appeal: Plea at first reasonable opportunity
            in light of counsel’s failure to follow instructions  [135]
The evidence  [136]
           Discussion  [141]
           Result…

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'Carroll v R

Details

AGLC: O'Carroll v The Queen [2016] NZCA 510
Case: [2016] NZCA 510
Decision Date: 20 October 2016

CaseChat Overview and Summary

This appeal concerned the manufacture and distribution of methamphetamine by a group in Auckland. The appellants were members of the group. The appeal concerned four appellants. Mr Cavanagh, Mr Bowker and Ms Stevens appealed their sentences, while Mr O'Carroll appealed his conviction. Mr O'Carroll abandoned his appeal against sentence. The Court dismissed Mr O'Carroll's appeal against conviction on all grounds. The Court dismissed Mr Bowker's appeal against sentence in its entirety. The Court allowed Mr Cavanagh's appeal against sentence in part, quashing the minimum period of imprisonment imposed by the sentencing judge. The Court allowed Ms Stevens' appeal against sentence. It granted her an extension of time to appeal and allowed her appeal against sentence, quashing the sentence of 15 years and nine months' imprisonment with a minimum period of imprisonment of seven years and 10 months. Ms Stevens is re-sentenced to a period of imprisonment of 13 years and six months, with a minimum period of imprisonment of six years and nine months.

Orders