R v O'Brien - [2017] NZHC 1625

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 Coffey

Date:

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…

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 R v O'Brien

Details

AGLC: R v O'Brien [2017] NZHC 1625
Case: [2017] NZHC 1625
Decision Date: 13 July 2017

CaseChat Overview and Summary

In the case of R v O'Brien, the High Court of New Zealand was tasked with sentencing Michael Joseph O'Brien, Patrick Francis O'Brien, Kevin Martin Coffey, and Paul Anthony Max on various charges related to fraud and deception in the gambling industry. The legal issues before the court included determining the relative seriousness of the offending, appropriate starting points for the sentences, and the consideration of personal circumstances and aggravating or mitigating factors.

The court found that the offending was significant, involving persistent deception of the Department of Internal Affairs (DIA) to obtain and maintain licenses for gambling operations. The deception was sophisticated and targeted the integrity of the regulatory system, causing widespread adverse impacts. The court rejected arguments that the offending should be seen as less serious due to the absence of identifiable victims or the lack of personal gain for some of the defendants.

For sentencing, the court considered the totality of the offending and imposed concurrent sentences for Michael O'Brien, reflecting the interdependent nature of the charges. A starting point of five years' imprisonment was set, with a 10% discount applied for personal circumstances, resulting in a final sentence of four years and six months. For Kevin Coffey, the court imposed a sentence of 12 months' home detention, considering his mental health issues and the potential harshness of imprisonment.

The final orders of the court were that Michael O'Brien was sentenced to four years and six months' imprisonment on charge 11, with concurrent terms for charges 12, 13, 14, and 15, totaling five years' imprisonment. Kevin Coffey was sentenced to 12 months' home detention, deferred to start the following day. The sentences aimed to achieve appropriate denunciation, deterrence, and rehabilitation, considering the unique circumstances of each defendant.

Orders