Osborne v The Queen - [2016] NZHC 1443

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000114 [2016] NZHC 1443

BETWEEN
JUSTIN JAMES OSBORNE

Appellant

AND

THE QUEEN Respondent

Hearing: 21 June 2016

Appearances:

B L Sellars for Appellant
B Finn for Respondent

Judgment:

29 June 2016

JUDGMENT OF GILBERT J

This judgment is delivered by me on 29 June 2016 at 11.30 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitor:
B L Sellars, Barrister, Auckland
Meredith Connell, Auckland

OSBORNE v R [2016] NZHC 1443 [29 June 2016]

Introduction

[1] Mr Osborne pleaded guilty to one charge of manufacturing methamphetamine. He was convicted and sentenced by Judge E M Thomas in the Auckland District Court on 24 March 2016 to two and a half years’ imprisonment.1

[2] Mr Osborne appeals against this sentence on the ground that it is manifestly excessive and should have been no more than two years’ imprisonment. Mr Osborne argues that there was an unjustified disparity between his sentence and the sentence imposed on a co-offender, Scott McArthur. Mr Osborne also claims that the discount allowed by the Judge for personal mitigating factors was inadequate, particularly for the time Mr Osborne spent on restrictive bail terms awaiting trial.

Sentencing judgment

[3] Mr Osborne assisted Mr McArthur in the manufacture of methamphetamine by supplying Fuelite knowing what he intended to use it for. The Judge described Mr Osborne’s culpability as lower than Mr McArthur, “but not much lower”.2 The Judge adopted a starting point of four years’ imprisonment for Mr McArthur and three and a half years’ imprisonment for Mr Osborne.3 The Judge then applied an uplift of three months’ imprisonment to reflect Mr Osborne’s previous convictions. These include convictions for possessing methamphetamine for supply in December
2006 and possession of methamphetamine in June 2007, and April 2006.

[4] The Judge allowed a discount of approximately 17 per cent for the time Mr Osborne spent on electronically monitored bail, the time spent he spent in a residential rehabilitative facility and for his remorse and rehabilitative efforts. The Judge applied a further discount of 20 per cent for the guilty plea which was entered
on the morning of trial but followed earlier negotiations with the Crown.

1 R v Driessen, McArthur and Osborne [2016] NZDC 5152.
2 At [13].
3 Mr McArthur’s starting point of four years’ imprisonment was uplifted by a total of 12 months - six months to take account of the fact that Mr McArthur’s partner’s 10 year old son was present in the house and exposed to the methamphetamine manufacture and a further six months to take into account that Mr McArthur had loaded firearms in the house.

Disparity

[5] The Judge imposed an end sentence of 12 months’ home detention and

100 hours of community work on Mr McArthur. Given that Mr McArthur faced numerous other charges and his offending was more serious, it is understandable that Mr Osborne appealed on the basis that the disparity in the end sentences imposed was…

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 Osborne v The Queen

Details

AGLC: Osborne v The Queen [2016] NZHC 1443
Case: [2016] NZHC 1443
Decision Date: 29 June 2016

CaseChat Overview and Summary

In the case of Osborne v The Queen, the appellant, Justin James Osborne, appealed against his sentence of two and a half years' imprisonment for manufacturing methamphetamine. The appeal was heard by Gilbert J in the High Court of New Zealand, Auckland Registry, on 29 June 2016. Osborne argued that his sentence was manifestly excessive and should not have exceeded two years' imprisonment. He further claimed there was an unjustified disparity between his sentence and that of his co-offender, Scott McArthur, and that the discount allowed by the Judge for personal mitigating factors was inadequate.

The legal issues before the court were whether the sentence imposed on Osborne was manifestly excessive and whether the discount for personal mitigating factors was inadequate. The court examined whether there was any unjustified disparity between the sentences imposed on Osborne and McArthur, and whether the Judge's discount for personal mitigating factors was within the scope of his sentencing discretion. The court found that there was no unjustifiable disparity between the sentences imposed on Osborne and McArthur, particularly in light of McArthur's increased sentence on appeal. The court also held that the discount allowed by the Judge for personal mitigating factors was not inadequate or outside the scope of his sentencing discretion.

In conclusion, the court dismissed the appeal and upheld the sentence imposed on Osborne. The Judge's sentence of two and a half years' imprisonment for manufacturing methamphetamine was not manifestly excessive, particularly in view of Osborne's prior methamphetamine offending. There was no unjustified disparity in the sentences imposed on Osborne and McArthur, and the discount allowed for personal mitigating factors was not inadequate.

Orders