O'Connell v Police - [2012] NZHC 3286

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-040 [2012] NZHC 3286

BETWEEN DARYL ROSS O'CONNELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 December 2012

Counsel: A Dallison for Appellant
SA Law for Respondent

Judgment: 6 December 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 6 December 2012 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL
Paul Keegan (New Plymouth) for Appellant
C&M Legal (New Plymouth) for Respondent

O'CONNELL V POLICE HC NWP CRI-2012-443-040 [6 December 2012]

Introduction

[1] Mr O’Connell appeals a sentence of 18 months’ imprisonment imposed on

him by Judge DC McKegg in the District Court at Hawera on 10 September 2012.

[2] An appeal against sentence proceeds by way of rehearing. That is to say, I am required to form my own view on the material before me as to the appropriate sentence in the circumstances of the case. That does not mean that I, in effect, resentence. However, if I decide that the sentence imposed by the District Court Judge was manifestly excessive, I have to substitute the sentence I find to be appropriate.

Background

[3] Mr O’Connell appeared before the District Court Judge on a number of charges. The first was manufacturing cannabis oil. The maximum penalty for that offence is 14 years’ imprisonment. The charge arose from a search of the appellant’s address. In his bedroom was found a Pyrex bowl containing a small quantity of cannabis oil. The appellant accepted that the cannabis oil was his and said that he had made it for his own use. There is no allegation that there is any commercial element to this charge.

[4] The remaining charges are unrelated. They are one charge of receiving stolen property and one charge of unlawful possession of a firearm. Both charges related to three rifles. At the time that the Police spoke to the appellant at his address about the cannabis oil, they asked him whether there was anything else in the house they needed to know about. The appellant then told them about the firearms. The firearms were valued at around $2,000. The appellant’s explanation for his possession of them was that a friend had asked him to look after them.

The District Court Judge’s sentence

[5] The District Court Judge placed emphasis on the appellant’s record of prior

offending. He noted that the appellant had nine convictions for drug offending and

13 convictions for dishonesty, the majority of those being burglary. He considered that he had to deal with the two sets of offences cumulatively.

[6] So far as the drug offence is concerned, the District Court Judge accepted that it was “a low level charge”,[1] being the manufacture of cannabis oil for the appellant’s own use. He fixed a starting point of nine months’ imprisonment and uplifted that sentence to 12 months’ imprisonment on account of the previous convictions.

[1] R v O’Connell DC Hawera CRI-2012-043-1314, 10 September 2012, at [6].

[7] The District…

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.

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Details

Case: [2012] NZHC 3286
Decision Date: 6 December 2012

CaseChat Overview and Summary

The appeal in O'Connell v Police concerns an appeal against the sentence imposed by Judge DC McKegg in the District Court at Hawera on 10 September 2012. Mr O'Connell was found guilty of manufacturing cannabis oil, receiving stolen property, and unlawful possession of a firearm. The appeal against sentence requires the High Court to form its own view on the appropriate sentence in the circumstances of the case. The primary legal issues in this case involve the starting point and uplift for the appellant's prior convictions, the discount for early guilty pleas, and the discount for the appellant's cooperation with the police. The High Court considered the appellant's nine convictions for drug offending and 13 convictions for dishonesty, the majority of which were for burglary. The Court found that an appropriate starting point for the drug charge was four to six months' imprisonment, with a maximum uplift of two months for prior convictions. For the receiving charge, the Court found an appropriate starting point of 18 months' imprisonment, with an uplift of 50% for the appellant's criminal history of dishonesty. The Court found that the appellant's cooperation with the police, which led to the recovery of four firearms and the prosecution of another person, warranted a discount of around 15%. The Court found that the sentence of 17 months' imprisonment, which was the result of the discounts applied to the starting points, was not disproportionate and thus dismissed the appeal.

The final orders of the Court were to dismiss the appeal, leaving the original sentence of 18 months' imprisonment imposed by the District Court Judge in place.

Orders