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 not justified and not consonant with the appearance of justice.   However, the force of that submission has now fallen away as a result of the Solicitor-General’s successful appeal against the sentence imposed on Mr McArthur as being manifestly inadequate.  Mr McArthur’s sentence has now been set aside and replaced with an

effective end sentence of three years and six months’ imprisonment.4

[6]      Ms Sellars realistically acknowledges that no issue can be taken with the starting point of three and a half years’ imprisonment adopted by the Judge for Mr Osborne.   Indeed, it was the starting point she urged the Judge to adopt in the District Court.  I am not persuaded that there is an unjustifiable disparity between this starting point and the overall starting point adopted for Mr McArthur of five years’ imprisonment, certainly not one that is so marked that it should be interfered

with on appeal.5

[7]      Ms Sellars also acknowledges that there can be no criticism of the three months’ uplift imposed by the Judge to reflect Mr Osborne’s prior offending.  That uplift was the minimum possible.  Mr Osborne is fortunate that it was not higher.

[8]      The Judge allowed a discount of the order of 20 per cent to take account of the time Mr McArthur spent on EM bail and to recognise his commendable rehabilitative efforts.  The Judge allowed a discount of approximately 17 per cent for these factors in Mr Osborne’s case.   The Judge explained the reasons for the difference in these terms:

[18]     Mr Osborne, you get a discount as well.  It will not be to the same extent.   I can see that you have tried to do some things and you have succeeded in some areas.   You failed in the important ones which were completing your residential rehab.  Certainly, though, it seems that you are

4      Solicitor-General v McArthur [2016] NZHC 1403.

5      R v Lawson [1982] 2 NZLR 219 (CA).

making progress and you are working hard to do so. The clean drug tests are testimony to that.

[9]      The   Judge   was   entitled   to   differentiate   between   Mr   McArthur   and Mr Osborne and recognise the more significant rehabilitative efforts and progress made by Mr McArthur in allowing a greater discount in his case.  The Judge was plainly impressed by the efforts Mr McArthur had made to turn his life around as is clear from the following comment:6

… It is rare that we see anybody who has been able to turn their lives around

to the extent that you have…

[10]     Ms  Sellars  takes  no  issue  with  the  20  per  cent  discount  allowed  for Mr Osborne’s guilty plea.  Again, it is the discount Ms Sellars submitted should be allowed at the time of sentencing in the District Court.  Given that the guilty plea was entered on the morning of trial, and taking into account the strength of the Crown case, this discount was generous.  Mr McArthur received a lesser discount of

15 per cent for his guilty pleas.

[11]    Taking into account that Mr McArthur’s sentence has been substantially increased as a result of the Solicitor-General’s appeal, I am not persuaded that there is any unjustified disparity between the sentences imposed on Mr McArthur and Mr Osborne requiring intervention on appeal. This ground of appeal fails.

Was the discount for personal mitigating factors inadequate?

[12]     Ms Sellars focused this part of her submissions on the discount allowed for the time Mr Osborne spent on electronically monitored bail, a period of approximately  18  months.    During  this  time,  Mr  Osborne  spent  approximately

12 months  at  his  home address  on  24  hour  curfew  and  close  to  six  months  at Odyssey House  and  Higher Ground.   The total  discount  for personal  mitigating factors was approximately 17 per cent and equated to seven and a half months’

imprisonment.

6 At [17].

[13]     The  discount  that  should  be  allowed  for  time  spent  on  electronically monitored bail is a matter for a sentencing Judge to determine in the exercise of his or her discretion. There is no formula for determining the credit that should be allowed.7    The discounts can vary significantly depending on the circumstances of each case.  The discount is not one for one.  For example, in Chea v R, the Court of Appeal considered that a four month discount would be appropriate to recognise that

the offender had spent 13 months on EM bail and had fully complied with his bail conditions.8

[14]     Mr Osborne was not fully compliant with the terms of his bail and on one occasion cut off his monitoring bracelet.   I am not persuaded that the discount allowed by the Judge for personal mitigating factors was inadequate or outside the scope of his sentencing discretion. This ground of appeal also fails.

Conclusion

[15]     In all of the circumstances of this case, the end sentence imposed of two and a half years’ imprisonment for being a party to the manufacture of methamphetamine cannot be regarded as manifestly excessive, particularly in view of Mr Osborne’s prior methamphetamine offending.   Now that Mr McArthur’s sentence has been corrected on appeal, there is no unjustified disparity in the sentences imposed on him and on Mr Osborne that require intervention on appeal. The appeal must accordingly be dismissed.

Result

[16]     The appeal is dismissed.

M A Gilbert J

7      Hemopo v R [2016] NZCA 242 at [21]; Rangi v R [2014] NZCA 524 at [10].

8      Chea v R [2016] NZCA 207.