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Quinlivan v Police

Quinlivan v Police

Case [2014] NZHC 3163 11 December 2014

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000199 [2014] NZHC 3163

LIAM PATRICK QUINLIVAN Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 10 November 2014

Appearances:

Bridie Murphy for the Appellant
Ben Finn and Steven O'Connor for the Respondent

Judgment:

11 December 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 11 December 2014 at 11:00am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

QUINLIVAN v NEW ZEALAND POLICE [2014] NZHC 3163 [11 December 2014]

Introduction

[1] Early in 2013 two cars, a BMW and a Subaru, were stolen from different parts of Auckland.

[2] About six months later the cars were discovered by the owner of a barn near Waiwera. The owner of the barn was the father of the partner of Liam Patrick Quinlivan, the appellant. The barn’s owner had earlier given Mr Quinlivan and his partner permission to store some of their possessions in the barn. The cars had been fitted with false number plates. The barn’s owner had no idea whose cars they were or what they were doing in his barn. So he called the Police.

[3] It did not take the Police long to make the connection with Mr Quinlivan. His Stanmore Bay home was searched. That search revealed a number of stolen items including an electric fence unit, a socket set, a circular saw, a bender and cutter and a CCTV camera. The camera and cutting tool had been stolen in separate burglaries earlier in the year.

[4] In explanation to the Police Mr Quinlivan claimed he had no knowledge of the two stolen cars found in the barn. He said he bought the camera from an associate and that the bender and cutting tool belonged to a friend who had admitted stealing the items from the farm property. He was charged with various receiving and theft charges.

[5] A month later Mr Quinlivan was stopped in his car by the Police a short distance from his home. The Police saw a silver extendable knife on the front passenger seat and advised Mr Quinlivan that they intended to search him and his car.

[6] In his trousers the Police found two glass pipes and in one of his hands he had a plastic ziplock bag which contained 6.9 grams of methamphetamine.

[7] A search of his car located a black bag under the driver’s seat containing a set of digital scales, a plastic tube, 15 small plastic ziplock bags, a money bag containing $2,300 and a black paint ball pistol.

[8] Mr Quinlivan was arrested and charged with possession of methamphetamine for supply and unlawfully carrying an imitation firearm.

District Court decision

[9] Mr Quinlivan appeared for sentence on 20 May 2014 before Judge Wade in the North Shore District Court. The Judge noted that at the age of 24, Mr Quinlivan had:1

… gone off the rails in a spectacular manner as a result of which [he was]
before this…

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 Quinlivan v Police

Details

AGLC: Quinlivan v Police [2014] NZHC 3163
Case: [2014] NZHC 3163
Decision Date: 11 December 2014

CaseChat Overview and Summary

In Quinlivan v Police, Quinlivan appealed against the sentence imposed by the District Court. Quinlivan had been found guilty of nine charges, including possession of methamphetamine for supply. He was sentenced to three years' imprisonment on the methamphetamine charge with 12 months' imprisonment imposed concurrently on the other receiving and firearms charges. Quinlivan submitted that his previous counsel had been incompetent in failing to advise him of the likelihood he would receive a sentence of imprisonment and that there were other courses of action he might have pursued to mitigate the risk of incarceration. Quinlivan also submitted that the sentence imposed was excessive in the circumstances. The Court found that Quinlivan's former counsel's account of the events was reliable and that there was no basis in fact or law to support Quinlivan's claim that his lawyer was incompetent. The Court also found that the starting point of three years' imprisonment was within the Judge's sentencing discretion. However, the Court found that the Judge erred in not reflecting Quinlivan's positive rehabilitation prospects and gave inadequate credit for his previous good character. The Court found the sentence imposed was manifestly excessive and allowed the appeal. The sentence of three years' imprisonment on the charge of possession of methamphetamine of supply was quashed and a sentence of two years and nine months' was substituted. The sentences on the remaining charges remained, and all sentences were to be served concurrently.

Orders