O'Connell v Police - [2025] NZHC 952

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2025-454-004

[2025] NZHC 952

BETWEEN
COLIN GEORGE O’CONNELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 March 2025

Appearances:

P J Knowsley for Appellant G L Duncan for Respondent

Judgment:

17 April 2025

JUDGMENT OF GRICE J

(Appeal against sentence)

Introduction

[1] Colin O’Connell pleaded guilty to one charge of possession of 372.49 g of cannabis for supply.1 He was sentenced in the Palmerston North District Court to four months’ imprisonment on 29 January 2025.2

[2] Mr O’Connell now appeals against that sentence on the basis that the Judge erred in his decision not to commute the sentence of imprisonment to home detention, and the sentence is manifestly excessive. He contends that his sentence should be one of home detention or community detention. He also seeks to adduce affidavits affirmed by himself and his wife as fresh evidence on appeal.

1 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c) — maximum penalty eight years’ imprisonment.
2 Police v O’Connell [2025] NZDC 1688 [decision under appeal].

O’CONNELL v POLICE [2025] NZHC 952 [17 April 2025]

[3] The Police oppose the appeal. While they accept that a sentence of imprisonment was not sought at sentencing, they submit that the case is finely balanced, and a holistic view of the relevant factors suggests the sentence of imprisonment was justifiable.

Background

Summary of the offending

[4]Mr O’Connell is 77 years old.

[5] On the morning of 1 November 2023, police executed a search warrant at Mr O’Connell’s home address. Mr O’Connell and his wife were both at home at the time and were detained for that purpose. Police were led to the address through communications intercepted as part of an investigation in relation to a suspected drug operation involving the sale and supply of methamphetamine, cocaine, ecstasy, and cannabis.

[6] A small suitcase containing 346.49 g of packaged cannabis was found in Mr O’Connell’s garage. A further 26 g of cannabis was located on top of his bedroom drawers. The police also seized $8,000 cash in a brown bag located in Mr O’Connell’s bedroom, and $1,500 in $50 denominations located in his wife’s wallet.

[7] When spoken to by police, Mr O’Connell said the cannabis was all for his personal use or shared with his friends.

Pre-sentence report

[8] The pre-sentence report noted that while Mr O’Connell took responsibility for being in possession of the cannabis, he maintained that it was not for the purposes of supply. He demonstrated “low remorse and poor insight into his position” and suggested that he only pleaded guilty to the charge in order to progress matters. Mr O’Connell also disputed the quantity of cannabis he was in possession of and the manner in which it was stored. In addition, he suggested that the $8,000 in cash was the proceeds of a private sale of a motor vehicle, and the $1,500 was his wife’s personal savings. He disputed any…

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'Connell v Police

Details

AGLC: O'Connell v Police [2025] NZHC 952
Case: [2025] NZHC 952
Decision Date: 17 April 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Colin O'Connell appeals against his sentence of four months' imprisonment for possession of 372.49 g of cannabis for supply, arguing that the Judge erred in not commuting the sentence to home detention and that the sentence is manifestly excessive. The Police oppose the appeal, asserting that the sentence was justifiable and a holistic view of the relevant factors supports it. The legal issues the court had to decide were whether the sentence of imprisonment was the least restrictive outcome appropriate in the circumstances and whether the sentence was manifestly excessive. The court found that the Judge erred in determining that a sentence of imprisonment was the least restrictive available outcome in the circumstances, and the end sentence of four months' imprisonment was manifestly excessive. The appeal is allowed, and the sentence of four months' imprisonment is substituted for one of two months' home detention, to be served at the address specified in the report. The post-detention condition imposed by the District Court not to possess, consume, or use alcohol or drugs for six months remains in place.

Orders