O'Driscoll v Police - [2015] NZHC 346

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-49 [2015] NZHC 346

BETWEEN
JOHN CHRISTOPHER O'DRISCOLL

Appellant

AND

NEW ZEALAND POLICE Respondent

CRI-2014-425-51

BETWEEN MATTHEW JAMES MILNE HARRIS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 3 February 2015

Appearances:

K McHugh for appellant Mr O'Driscoll
S Williamson for appellant Mr Harris
S N McKenzie for respondent

Judgment:

4 March 2015

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellants, John O’Driscoll and Matthew Harris, were charged in May

2014 with cultivation of cannabis.1 They both pleaded guilty and were sentenced by Judge Turner on 2 December 2014, Mr O’Driscoll to two years and one month imprisonment; Mr Harris to two years and three months’ imprisonment.2 They now
appeal those sentences. They do so on the basis that the starting point of three years

1 Misuse of Drugs Act 1975, s 9.
2 Police v Harris & O’Driscoll DC Invercargill CRI-2014-025-001074, 2 December 2014.

O'DRISCOLL & HARRIS v POLICE [2015] NZHC 346 [4 March 2015]

and six months adopted by the Judge in determining each of their sentences was too high, and resulted in manifestly excessive end sentences.

Facts

[2] In March 2014 Mr O’Driscoll rented a commercial property in Invercargill.

On 23 May 2014 the police executed a search warrant of that property and found

30 cannabis plants in a growing area. The area was set up with a range of growing equipment, including liquid feeders, lights, cabling and timers. The plants were approximately four weeks from maturity. In the agreed summary of facts, the police estimated the defendants could have expected between $21,000 and $67,500 profit from the plants once harvested and sold.

[3] Mr O’Driscoll was co-operative with the police, and admitted renting the premises and organising the electricity. He said the intention was to grow one crop, and for him to use his share of the proceeds to invest in his own electrician’s business. Mr Harris initially denied involvement but later admitted his part in the offending.

[4] At the time of sentencing, Mr O’Driscoll was 24 years old and was living at his parents’ house with his partner. He was employed as an apprentice electrician. Mr O’Driscoll has no previous convictions.

[5] At the time of sentencing, Mr Harris was 26 years old. Mr Harris had been married for some 18 months and had one child who was then six weeks old. Mr Harris was also employed as an electrician. Mr Harris and his wife were living in their own home and were paying off their mortgage. Mr Harris has a number of relatively minor previous convictions. The last of those occurred in February 2010. He has never before been sentenced to imprisonment.

[6] Following their sentencing, Messrs O’Driscoll and Harris were bailed by Judge Turner, pending the outcome of this appeal. I continued that bail when I heard their appeal, pending the release of my judgment.

The challenged sentencing decision

[7] Judge Turner assessed the offending as falling between categories 2 and 3 of the Terewi

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: [2015] NZHC 346
Decision Date: 4 March 2015

CaseChat Overview and Summary

John O'Driscoll and Matthew Harris appealed against their sentences for cultivating cannabis plants, arguing that the starting point of three years and six months adopted by the sentencing judge was too high and resulted in manifestly excessive sentences. The High Court considered whether the starting point was appropriate, whether the sentencing judge erred in applying the Terewi methodology, and whether the sentences were manifestly excessive. The court found that the sentencing judge erred in his application of the Terewi methodology by adopting a starting point that was higher than that supported by the authorities. The court found that a starting point of two years and nine months would have been appropriate and that home detention was the appropriate sentencing outcome for both appellants. The court allowed the appeals, quashed the sentences of imprisonment imposed on the appellants, and sentenced each of them to nine months' home detention at their current bail addresses, based on the time already spent on bail subject to a 24-hour day, seven-day a week curfew.

Orders