R v O'Brien
[2017] NZHC 1625
•13 July 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2014-085-14183 [2017] NZHC 1625
THE QUEEN
v
MICHAEL JOSEPH OʼBRIEN PATRICK FRANCIS OʼBRIEN KEVIN MARTIN COFFEY PAUL ANTHONY MAX
Hearing: 13 July 2017 Counsel:
G J Burston and PW Gardyne for Crown
R B Squire QC for M OʼBrien
N Levy for Mr CoffeyDate:
13 July 2017
SENTENCING REMARKS OF DOBSON J
[1] Mr O’Brien and Mr Coffey, my task today – no you needn’t stand until I tell you to. I’m sorry, I’m going to take a little while. My task is to impose sentences on you for the convictions I entered on 15 June 2017. The third convicted defendant Mr Max is not present today as you are aware because I have granted his request for an adjournment to enable further dialogue between him and the pre-sentence report writer. I have however required his counsel to provide his submissions on the relative seriousness of Mr Max’s offending because there may be relativity issues in ranking the seriousness of the offending for each of you, when I set appropriate starting points for your sentences and I will sentence Mr Max separately on 27 July.
[2] As to the circumstances and relative seriousness of your offending, after more than eight weeks of evidence and carefully going through all the documents, I
formed pretty clear views about the offending which are reflected in the reasons for
R v OʼBRIEN & ORS [2017] NZHC 1625 [13 July 2017]
my verdicts. Mr O’Brien, you are the only defendant who did not give evidence at the trial and you have recently written to me acknowledging that you totally accept my findings.
[3] So today I am only going to draw attention to those aspects of the offending that I consider to be particularly relevant in ranking its seriousness. That is necessary because an aspect of my sentencing task is to attempt to achieve comparable outcomes for comparable offending and that task is not as easy in this case as it is in many because the factors contributing to the relative seriousness of deceptions or fraud offending tend to be more subtle than, for example, ranking the relative level of violence in cases of grievous bodily harm.
[4] As to the impact of this offending, both Mr Squire and Ms Levy have suggested that it should be seen as less serious because of the absence of identifiable victims. I cannot accept that. Organised gambling is recognised by Parliament as a legitimate component of the hospitality and entertainment industries. A significant benefit is the return of proceeds to the community. Because of its wide spread and insidious adverse impacts causing misery for those addicted to gambling and their families, and because also it is an activity with very large amounts of cash turning over, confidence in the legitimacy of the gambling sector can only be maintained if it is effectively regulated. And Mr O’Brien, your scheme here to deceive the DIA struck at the heart of the regulatory system, at a point where it is vulnerable to deceit by those prepared to run a co-ordinated campaign to deceive.
[5] As to charge 11, Mr O’Brien, you formulated a plan and orchestrated the application for the Bluegrass Trust to get a class 4 operator’s licence that deceived the DIA into believing that you were not a key person when inarguably, you were. Because the DIA was sceptical of your non-involvement given your history in the industry and the appearance of your father as the chairman of the new trust, DIA officers tested the initial representations that you had no position of influence. The deceit as to your exclusion was sustained and coordinated with your father and with Mr Coffey having to corroborate your deceit. That joint enterprise ran from June to December in 2009 when the operator’s licence was granted for the Bluegrass Trust.
[6] I do not accept Mr Squire’s analysis that your culpability is to be reduced because you were only responsible for making one of the seven false representations alleged in the particulars to charge 11. That is in a sense ironic because the whole point of the scheme you devised was to avoid any reference to you at all when you were the architect of it and orchestrated the involvement of the others. You could not have been a director because that would have given the game up but you did orchestrate and influence the representations made by the others that are featured in those particulars.
[7] I also reject the suggestion that your involvement should be treated as less significant because the DIA officers responsible for issuing the operator’s licence did not explicitly acknowledge in their evidence that the misrepresentation that you were not involved was critical to their decision. I am well satisfied that the reality is that if the DIA had known of the nature of your involvement, the licence would not have issued.
[8] I also cannot accept Mr Squire’s submission that there were few indicia of sophisticated or clever deceptions. You distanced yourself from the organisation of the trust, you represented your father as acting in your place by forging his signature on relevant documents and sending emails purporting to come from him. It is relatively easy for counsel many years after the event when we have gone over the whole thing with a microscope to say well it wasn’t very sophisticated but I am persuaded that at the time it was relatively sophisticated and served its purpose in deceiving those who were entitled to rely on the integrity of the applicants.
[9] As to Ms Levy’s characterisation of Mr Coffey’s involvement, I am also unable to accept her submission that Mr Coffey’s offending was deceptive conduct for an innocent purpose. Mr Coffey, I am satisfied that your various statements about the non-involvement of Michael O’Brien intentionally downplayed that involvement to an extent that you thought would reduce it below the level where the DIA would have a concern that Mr O’Brien constituted a key person for the new trust. Your acquittal on charge 12 which relates to the period after the licence was granted does distance you from the way in which Mr O’Brien remained involved after the licence was granted, but it does not follow that you can be given credit for thinking that Mr O’Brien would distance himself from the running of the trust
entirely. It must have been apparent to you that Mr O’Brien was running the application process using his father’s name, and that the other trustees he had chosen were newcomers to the governance of class 4 gambling so that they would be likely to defer to Mr O’Brien’s guidance. So I cannot accept that you were “the innocent dupe of Mr O’Brien”.
[10] Coming to charge 12 Mr O’Brien, your conviction there reflects in particular your covert control of the grants process from behind the scenes once the operator’s licence was granted. That control was exerted throughout the whole period to which the charge relates and I cannot accept Mr Squire’s analysis of an apparently greater level of independent conduct by the trustees appointed from the second half of 2012.
[11] As reviewed in the reasons for my verdicts, there were progressions in the way you controlled the amounts and timing of grants to racing clubs that paid you fees, and I am satisfied that you enjoyed effective control over the grants process throughout.
[12] As to the scale of your personal financial interest, Mr Squire has questioned the validity of any reliance on the total fees paid to you in the 2010 to 2013 years. First, Mr Squire suggests we should deduct the GST charged which brings the fees to some $8.34 million. Then, Mr Squire suggests I should exclude the portion of the fees that, on a pro rata basis, can be assumed to have been earned by you for procuring grants from trusts other than Bluegrass. On that basis, Mr Squire’s calculations get the total fees down to some $3.3 million which averages about
$825,000 per annum. He is also inclined to make a further deduction from that the extent to which the grants paid to the racing clubs did not exactly conform with your schedule prepared in advance.
[13] Now Mr Squire’s analysis is helpful in demonstrating the extent to which you were being paid for procuring grants from trusts other than Bluegrass. However it does not persuade me to reduce the total financial measure of your scheme to that extent by that proportion. There were meaningful links, between your control over numerous licenced venues and the commitments those businesses made to operate machines for other trusts, and the management of grants processes by executives with those other trusts. The Crown case did not establish how the influence you
gained as a result of those links worked to enable you to procure grants for the racing clubs that had paid you fees. However I am satisfied that the personal connections you had depended at least in part on the way you directed relationships between various venues you controlled and the executives operating those other class 4 gambling trusts. Those relationships reflected a mutuality of favours: it was a “you scratch my back, and I’ll scratch yours” series of relationships that was sufficient to give you confidence to predict to the racing clubs in advance where they would get grants from.
[14] As Mr Burston has emphasised this morning, some racing clubs were reluctant to pay you fees of about a third of the grants they were to receive, but they did so at least for some clubs because you succeeded for them whereas their own efforts or the efforts of other lobbyists did not.
[15] In your performance for the clubs who paid you, control over the Bluegrass Trust grants process was more significant to your scheme than just the portion of total grants that were paid by Bluegrass to those clubs. That is because you were able to use the Bluegrass grants process as a type of float. It goes too far probably to call it a bank to balance allocations where one or more clubs’ applications to other trusts were unexpectedly rejected. There were instances I heard about where you directed Ms Bak to juggle the timing and amounts of grants to be made by Bluegrass because a particular club had missed out on a grant from another trust where you had directed that club to apply and had anticipated the other trust coming through and granting the application.
[16] Mr Squire suggests the offending in charge 12 should be seen as less serious because you had anticipated that another person, Mr Morgan, would be appointed as general manager which would have obviated the need for you to be involved to the extent that you were. I am satisfied that whatever layer of management was in place, your control over governance and in particular the grants process would have continued as it did. There is no suggestion that Mr Morgan, who was deemed unsuitable for the role by DIA, would have inhibited the control that you enjoyed.
[17] Mr Squire also sought to reduce your level of your culpability by arguing that you could not have achieved the control you did over the grants process without the
complicity of the members of the Net Proceeds Committee of Bluegrass (the NPC). The Crown can validly distinguish the naïve approach brought by the NPC members to their “rubber stamping” of the grants as you recommended to them. There is no evidence that any of them (with the possible exception of Mr Monk who also represented a recipient club) were aware of your business of charging fees to racing clubs, and the coincidence between the recommendations you made on grant applications as presented to the NPC, and the previous arrangements you had made for those clubs to make such applications on terms and at times that you recommended. I do not accept Mr Squire’s criticism which is perhaps only implicit that the NPC members’ involvement was similar to an extent that they should also have been charged.
[18] Charges 13, 14 and 15 arise out of Mr O’Brien yours and Mr Max’s conduct in relation to the venue operator licences. These convictions reflect a snapshot of the consequences of what I have found to be a longstanding arrangement between Messrs O’Brien and Max, for Mr Max to take legal ownership of the shares in companies that operated class 4 venues, on trust for Mr O’Brien’s beneficial interest. The pattern of such arrangements began reasonably soon after the DIA investigation into Mr O’Brien’s involvement in the Metro Charitable Trust. Both of you were aware that such a device was needed to enable companies that were beneficially owned by Mr O’Brien to be involved in the running of licenced premises for class 4 gambling. For the most part, the arrangements were recorded in deeds of trust documented by lawyers, so that any formal inquiry that involved warrants to search such records would be likely to reveal the true position as to beneficial ownership.
[19] The arrangements were in some cases clumsy, for example when Mr O’Brien wanted to change arrangements and you saw a need to structure transactions as if Mr Max was selling a beneficial interest that he did not have. Mr Squire has made the point that the SFO found the evidence for these charges easily, although that is only half the story because, without an explanation which was not provided, the terms of some of the documents reasonably misled the SFO as to their effect, or the date of them.
[20] Mr Squire has made the point that these charges relate to relatively short time frames, which were 50 weeks, six and a half months and five weeks. Whilst I am
only sentencing you for the conduct in those periods, it is artificial to ignore the longer duration of the arrangements when the true status of ownership arrangements in the periods to which the charges directly relate were recorded in documents long before the periods to which the charges relate.
[21] I just want to acknowledge Mr Corlett’s preliminary submissions on the relative seriousness of Mr Max’s involvement where he submits that Mr Max’s involvement should be seen as less serious because he had his own motives for participating as he did independently of assisting any deception of the DIA by you, Mr O’Brien. This was because maintenance of the commercial relationships between Mr O’Brien’s companies that operated licenced venues, and Messrs Max and Todd-Lambie’s management company that earned revenue from managing them, would be strengthened by agreeing to arrangements that hid Mr O’Brien’s ownership.
[22] Also, Mr Corlett suggests there is no evidence that Mr Max was aware of your - Mr O’Brien’s - lobbying business in which you were charging significant fees to procure grants, so that Mr Max’s involvement cannot be treated as adding to the significance of Mr O’Brien’s deception in that regard.
[23] Now in terms of relativity those points do help Mr Max in lessening what might otherwise have been virtually his equal participation as I see it in the arrangements made for him to hold legal ownership of the shares in the various companies that were beneficially owned by you, Mr O’Brien. However, it cannot relegate the importance of Mr Max’s involvement too far, because he knew that concealment of your true interest in the companies was critical to obtaining and retaining venue licences that were issued by DIA. Without his complicity, the licences would not have been available. He knew that all too well and it does not lessen his culpability that Mr Max might now say he treated concealment of Mr O’Brien’s identity from the DIA as a matter for you, Mr O’Brien.
Starting points for the offending
[24] So I come to starting points for each of the convictions. Each of them as you will be aware carries a maximum penalty of seven years’ imprisonment. One thing
counsel are agreed on is that there are no close comparisons to be found in other cases of obtaining by deception or fraud. Notwithstanding that, I have been referred by counsel to sentences imposed in a number of other cases which I have considered and found to be of some limited assistance. I have also had regard, as I am bound to, to the purposes and principles of sentencing from the Sentencing Act 2002 that are to govern my assessment. I will not cite those to you but I intend that the weighting I have given to various of them is implicitly clear in my approach.
[25] For the Crown, Mr Burston submits that charge 12 should be treated as the lead offence and suggests a starting point of five and a half to six years’ imprisonment. He then suggests that for Mr O’Brien, an uplift from that to between six and six and a half years is appropriate to reflect the totality of Mr O’Brien’s offending, and his role as the instigator.
[26] Now Mr Squire submitted that charge 11 should be treated as the lead offence and that an adequate starting point would be between three years nine months and four years’ imprisonment.
[27] In this case I do not intend to draw a material distinction between charges 11 and 12 for their seriousness because it does not matter which of them is treated as the lead offence. In analysing your offending Mr O’Brien, these convictions reflect a course of conduct that is interdependent in the motives you had for, and the mode in which the offending was carried out. So I treat each as being of equal importance for sentencing purposes.
[28] This is significant offending of its type. I agree with the Crown’s categorisation that it comes near the top range of fraud, or the top of the mid range on the fraud offending spectrum. It involved persistent and determined deception of a Government agency that is charged with regulating licences to operate a business that generates very significant amounts of cash and which activity is prohibited in the absence of licences issued by the DIA. The regulatory system depends on the integrity of the applicants in providing accurate information and the justified expectation of the regulators of accurate responses was flouted throughout. Although I do not find it involving a breach of trust in any conventional sense, the level of reliance by the regulator on full and truthful disclosure is akin to an element
of trust in the integrity of applicants, when they describe matters that are solely within their own knowledge and control.
[29] It is conduct that needs to be denounced in the strongest terms, and deterred as effectively as compliance with other sentencing considerations will allow.
[30] I have had regard to the arguments Mr Squire advanced for reducing the perceived level of seriousness of the offending, and measured those against the position adopted for the Crown.
[31] Standing alone, I consider that either charge 11 or charge 12 should attract a
starting point for Mr O’Brien of four years’ imprisonment.
[32] The Sentencing Act gives me options to either impose cumulative sentences to be served one after the other, or to impose concurrent sentences, which would be served all at the same time, in each case subject to what the Sentencing Act calls the totality principle.1 Because of the similar character of each of the convictions, I will be imposing concurrent sentences on you, Mr O’Brien.
[33] As to a starting point for Mr Coffey on charge 11, your involvement Mr Coffey was critical to the success of Mr O’Brien’s scheme because if you had provided fully accurate information I am satisfied that the application would have been declined. I am equally satisfied that you appreciated that critical point.
[34] Mr Burston has submitted an appropriate starting point for Mr Coffey would be between three and three and a half years’ imprisonment. Measures of the seriousness included what the Crown treats as Mr Coffey’s cynical intention to evade a regulatory regime and that his deception of the DIA persisted over a period of some six months. Although there is no evidence of personal gain for Mr Coffey, the Crown argued that he would have been aware of the scale of activity likely to ensue once the DIA had granted a licence and at one point there was a prospect of it
leading to a paid position for you with the trust.
1 Sections 83-85 of the Sentencing Act 2002.
[35] On your behalf Ms Levy would not concede that a term of imprisonment is necessary at all.
[36] I accept Mr Coffey that you intended your involvement to end shortly after a licence was obtained by the time that point was reached, that you were not aware of the scope of Mr O’Brien’s operation in charging for the procurement of grants, and also that you had probably not given any detailed consideration to the manner in which the trust would operate once it was up and running.
[37] I also accept that you were not involved for any direct financial gain and certainly did not get any. Although Ms Levy urges that your comments on the limited involvement of Michael O’Brien were not influential because the DIA officers were focusing on others involved, I maintain my view that your identity as a director was material at least in an implicit sense for the DIA because even if only subconsciously, the officers would take a measure of comfort from your relevant experience in the sector with the regulation of operators’ licences given your work at NZCT, and also your earlier experience as a DIA compliance officer.
[38] I therefore set a starting point for your conviction on charge 11 Mr Coffey at
two years and six months’ imprisonment.
[39] As to starting points now for charges 13, 14 and 15, if they were being addressed on their own they would be dealt with by way of concurrent sentences as between them for the 13, 14 and 15, given that there is a similar pattern of activity, for the same purposes, and over a similar or at least overlapping periods of time. Now the venue licences that were obtained are at a level below the operator’s licence in terms of the scale of activities they permit and therefore at least superficially their value, but again the two categories of licence are interdependent because the venues can only operate under the authority of an operator’s licence, and an operator’s licence cannot have value or generate any returns without venues that operate gaming machines on its behalf.
[40] The impact of Messrs O’Brien and Max’s concealment of Mr O’Brien’s ownership of companies that operated licenced bars extended beyond concealing from DIA Mr O’Brien’s influence over their governance for the purpose of obtaining
or renewing licenses. In breach of a fundamental aspect of the regulatory regime, the concealment enabled Mr O’Brien to have an ongoing material influence in how the bars in question were operated when both he and Mr Max knew that the DIA considered him unsuitable to have that role. That enabled Mr O’Brien to have an influence over the working relationship between the venues and the respective gaming trusts with which they each contracted. I am satisfied that the relationships thereby created were relevant to Mr O’Brien’s dealings with executives in those other gaming trusts, when you liaised with them Mr O’Brien about applications that you referred to them for particular racing clubs. Although slightly less significant because of the scale of each venue’s operation, this deception is nearly on a par with that about the Bluegrass operator’s licence.
[41] If standing alone, I would set a starting point for Mr O’Brien’s conviction on the first of the venue charges at three years and nine months’ imprisonment. I will not indicate today a starting point for Mr Max, but I am satisfied that an appropriate relativity would have a starting point for him at a margin below Mr O’Brien. Overall I assess Mr Max’s culpability to be greater than that of Mr Coffey.
[42] The Crown’s submissions suggested that I should set starting points and then recognise aggravating features of the offending. I agree with Mr Squire that assessing the features of the offending as I have already done reflects anything that might otherwise be aggravating of the seriousness of it so that there is no need to consider uplifts for aggravating features such as the extent to which there was a breach of trust or the extent of harm to the reputation and standing of the regulated gambling industry.
[43] I do not mean to downplay the impact of the offending by dealing with it this way. The Crown has filed a victim impact statement from a DIA officer which treats the Department as a victim of the offending. Now whether that is strictly appropriate or not, the points made in that statement reinforce relatively how serious this offending was. Community acceptance of regulated gambling depends on the public having confidence in the integrity of the regulatory process. The reputation of the regulatory process is seriously dented by the deceptions involved in this offending and that is an important matter. However I have had regard to that in rating the
relative seriousness of the offending and do not need to come to it separately as an aggravating factor.
[44] It is also possible to see others who have been made losers by this cynical offending. For instance there is a category of racing clubs who refused to pay Mr O’Brien’s fees and were therefore excluded from the preferred arrangements for grants that he was able to procure from Bluegrass. More generally, wider community interests also suffered to a degree because of the concentration of grants within the racing clubs who paid Mr O’Brien. As Mr Squire pointed out, it was legitimate to treat a preponderance of grants money available to the Bluegrass Trust as being allocated among racing clubs as an authorised purpose, but the concentration on the group of racing clubs paying fees to Mr O’Brien nonetheless smacks of discrimination against otherwise worthy applicants for grants. On the other side of course, those that did get money had to pay a third of it to Mr O’Brien for having them be preferred. Again, I need not treat this as an aggravating feature as I have reflected it in my assessment of the seriousness of the offending.
[45] Approaching Mr O’Brien’s sentencing on a concurrent basis, my total starting point is four years on charge 11 with a six month uplift for charge 12 and a further uplift of nine months for charges 13, 14 and 15. That would make an overall starting point of five years and three months’ imprisonment. Before settling on that I have to apply the totality principle which is whether the combined length of concurrent sentences appropriately reflect the totality of Mr O’Brien’s criminality. I am concerned that it may marginally overstate the total criminality and I have accordingly decided to apply the totality principle in adjusting the final starting point down by three months to a final starting point of five years’ imprisonment.
Personal circumstances
Mr O’Brien
[46] I now need to consider the personal circumstances of both of you and I deal
first with Mr O’Brien. I have considered the PAC report. I have also read the
16 letters submitted in support of Mr O’Brien’s position. They attest to Mr O’Brien’s popularity, particularly in racing circles, and the extent of his other worthy contributions to his community. With respect to the authors of those letters,
at least some of them, despite knowing of the convictions against Mr O’Brien a number in my view unrealistically seek to downplay the criminality involved in your offending and that reduces any weight that I could give to those letters with that aspect to them.
[47] At 58, Mr O’Brien has no previous convictions. He is supported by his wife and by a brother. He obviously takes a prominent part in caring for his children, being two relatively young ones of his own, and a younger one from a marriage to a previous wife. Because his present wife is in the process of migrating to New Zealand from Thailand, her status as his wife cohabiting with Mr O’Brien is likely to be important to her ability to stay in New Zealand. The prospect of losing her visa status if he is imprisoned is a harsh consequence, but it is not an exceptional circumstance that would warrant my transforming the nature of the sentence imposed from a sentence that is otherwise the appropriate one.
[48] Mr Squire submitted that Mr O’Brien is entitled to credit for his previous good character, and for the extent of his work for the community. I take the view that the relatively lengthy period during which this offending has persisted, and the nature of it lessens the extent to which credit can be given for previous good character, and other good works. The period of the offending here involved repeated interactions where Mr O’Brien’s involvement had to be concealed over a number of years that is the opposite of a first offence that involves an impulsive act on a single
occasion.2
[49] It is apparent from both the PAC report and the letter that Mr O’Brien has written to me that he is extremely concerned at the extent to which he would be letting down his wife and his children who depend on him in personal circumstances that perhaps exceed the extent of reliance that a father of young children and a stepchild can generally claim. As I have said, that cannot justify transforming the nature of the sentence. I treat it as a personal factor that renders a sentence of imprisonment relatively harsher for Mr O’Brien than it would be for others. That does add a little weight to other personal factors that may justify a discount from the
starting point.
2 Compare R v Zhang (2004) CRNZ 915, (CA) at [26]; Manawaiti v R [2013] NZCA 88 at [19].
[50] Mr Squire has made the point a number of times throughout the trial and in his submissions on sentencing, that Mr O’Brien perceives the origins of this offending in the DIA’s finding of unsuitability against him for his role in the governance of the Metro Charitable Trust. Mr O’Brien complains that he has never had an appropriate forum in which to challenge the justification for the DIA’s adverse view of him. In one instance he attempted to commence an appeal but was denied standing.
[51] I am not persuaded that this feature of the background to the offending can now justify credit to Mr O’Brien for the deception he has practiced. It would be wrong to condone criminal deception with any suggestion that it was justified because of an unreasonable stance on behalf of the regulator. The DIA’s view was one that was open to it in carrying out its statutory functions. Mr O’Brien could have challenged the justification for the DIA’s view of him as it applied to Bluegrass. For instance, he could have acknowledged the role he was playing in the application for Bluegrass, and advanced that application on terms that the DIA’s previous adverse view of him was not justified or not sufficient to warrant declining the Bluegrass application.
[52] The trial has apparently triggered in Mr O’Brien an appreciation that he has a gambling addiction. He does not advance that as an excuse that would justify ranking his offending as any less serious, but Mr Squire asks for a measure of credit for Mr O’Brien now acknowledging he has that addiction, and Mr O’Brien’s stated preparedness to take steps to address it.
[53] The remorse stated in Mr O’Brien’s letter to me is at odds with his demeanour as I observed it throughout the trial. The tone of numerous comments by Mr O’Brien in the period the SFO was intercepting communications suggests that he was dismissive of the regulator, and unconcerned that he might be breaking their rules. Despite those reservations, I consider that the interests of Mr O’Brien’s ultimate rehabilitation warrant a discount from the starting point to give a measure of recognition for his previous good character, the unusual extent of stress that a prison sentence will impose on his family, his preparedness to address his gambling addiction and his unqualified recent expression of remorse for the conduct that has resulted in these convictions. I consider a 10 per cent discount is appropriate. From
the final starting point of five years then, a 10 per cent discount would be six months resulting in a final prison sentence of four years and six months.
Mr Coffey
[54] Mr Coffey, your personal circumstances. From the early stages of the proceedings, the Court has been provided with medical reports addressing the state of your mental health. The extent of concerns on that score justified name suppression until the verdicts, and has also been a factor in my granting you bail pending sentencing. I accept Ms Levy’s point that that condition is likely to make a prison sentence a more harsh penalty for you than for a defendant without the mental health issues that you undoubtedly have. However mental health concerns arise for a substantial portion of defendants facing prison and the routine response of the Corrections Department is that they are equipped to accommodate prisoners with such conditions.
[55] Ms Levy submitted that a community sentence is adequate to reflect the seriousness of the offending. She raised numerous mitigating circumstances in your favour in addition to the mental health condition. Without seeing Mr Coffey’s PAC report, the Crown submitted that any discount for mitigating factors ought to be capped at five per cent.
[56] Now, Mr Coffey is also of previous good character. In addition to previous careers as a Police officer and a Corrections officer, he has in more recent times demonstrated a genuine commitment to helping others in the community and that is deserving of credit. Ms Levy also has made the point that those previous careers are (in addition to the mental health condition) likely to make serving a prison sentence relatively more harsh than for offenders without that background.
[57] Relatively selfless support for others in the community is a clear theme in a number of the letters that Mr Coffey has provided in support of his position. Mr Coffey continues to enjoy the support of entities for whom he could work and some of those, including where his work has been on a voluntary basis, would miss his contribution to the support of others less fortunate in the community.
[58] Mr Coffey enjoys the support of his wife who is prepared to have him living with her at a Hawkes Bay address that has been assessed as appropriate for a sentence of home detention.
[59] Assessing all these matters in the round I accept that a discount of 20 per cent from the starting point I have identified is appropriate. That results in an end sentence of two years’ imprisonment so it does trigger the assessment of whether a sentence of home detention ought to be substituted.
[60] And Mr Coffey, I am persuaded that it should be. I see the substantial rehabilitative advantages in having you remain in the community. Those you have been helping in the community are prepared to continue using you and to support you, and the prospects of your being able to maintain constructive work relationships will be greatly enhanced if there is not the disruption of a term of imprisonment.
[61] The outcome in terms of relativity between Mr O’Brien and Mr Coffey on the offending they shared is relevant. I have reflected on it and I am comfortable on the relativity that leaves me with.
[62] I accept Ms Levy’s point that a longish period on home detention still has a significant and meaningful signal for deterrence, and does also send a real signal of denunciation. I accordingly will be sentencing you Mr Coffey to a term for the maximum period of home detention, namely 12 months. It is not an easy sentence.
MPI
[63] Now, the last aspect of the sentencing analysis is to consider the Crown submission that the seriousness of Mr O’Brien’s offending warrants the imposition of a minimum period of imprisonment. That can be imposed where the Court recognises that the part of a finite sentence that Mr O’Brien would otherwise serve is insufficient to hold him accountable, or to denounce the conduct involved in the
offending or to deter him and others, or to protect the community from him.3
3 Section 87, Sentencing Act 2002.
[64] I am not going to impose an MPI in this case. I have recognised the measure of additional difficulty for him in serving a prison sentence given the predicament in which it leaves his wife and children, and I have made what allowance I can for that. I am not going to take that back again by imposing a minimum period. This is unusual offending and the overall starting point of five years is adequate denunciation and I hope deterrence for both you Mr O’Brien and others minded to conduct serious deception of the regulator. I certainly accept that the community does not need to be protected from you, Mr O’Brien.
Sentences
[65] Accordingly, could I have you both stand please:
Mr O’Brien: you are sentenced to a term of four years and six months’ imprisonment on count 11. You are also sentenced to a concurrent term of four years and six months on charge 12 and concurrent terms on charges 13,
14 and 15 of three years and nine months’ imprisonment. All those terms by being concurrent will be served at the same time. I have no power over directing where you are to be held but I endorse Mr Squire’s urging that if the Department of Corrections can arrange for you to be located at Christchurch Prison that would facilitate contact with your family and is worthy of recommendation.
Mr Coffey: you are sentenced to a term of 12 months’ home detention at the Hawkes Bay address that was stipulated in the PAC report. The terms of that sentence are that you are to attend any other assessment, counselling, treatment or programme as directed by the probation officer. Given the travel considerations, the sentence is deferred to start tomorrow on 14 July
2017 but I still direct that you are to go directly from here to the home detention address specified in that report and wait there for the monitoring service. And I wish you well in getting back over the Rimutaka Hill.
[66] Thank you, you may both stand down.
Dobson J
Solicitors:
n gton ington land
Crown Law, Wellingto
RB Squire QC, WellinCWJ Stevenson, Well
MA Corlett QC, Auck
N Levy for Mr Coffey