R v O'Carroll
[2015] NZHC 2404
•2 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-004-5509 [2015] NZHC 2404
THE QUEEN
v
DAVID GERRARD O'CARROLL
Hearing: 2 October 2015 Appearances:
R M McCoubrey and K Eastwood for Crown
S J Bonnar QC for DefendantDate:
2 October 2015
SENTENCING REMARKS OF M PETERS J
Solicitors: Meredith Connell, Crown Solicitor, Auckland
Counsel: S J Bonnar QC, Auckland
R v O’CARROLL [2015] NZHC 2404 [2 October 2015]
[1] Mr O’Carroll, you appear for sentence on three charges of manufacturing
methamphetamine.1 The maximum penalty for this offending is life imprisonment.2
[2] You were convicted of these offences on 9 September 2015 following a jury trial at which I presided and I am familiar with the facts.
Facts
[3] You were part of a group involved in the manufacture and supply of methamphetamine. There is some dispute between counsel as to the quantity manufactured and the degree of your involvement, particularly as considered against one of your co-offenders, Ms Shannon Stevens.
[4] As to quantity, it is agreed that the first manufacture on 12 March 2014 produced at least 830 grams and that the third, on 5 May 2014, produced at least
500 grams.
[5] There is no clear evidence as to how much was produced on the second occasion, 9 April 2014. The Crown submits that it was approximately 1 kilogram, based on the 1.8 kilograms of ephedrine believed to have been used. Mr Bonnar QC submits that there is no direct evidence as to the quantity manufactured, and that it would be unsafe to infer that more was manufactured in April than on the other two occasions. I accept that there is a lack of direct evidence but based on the quantity of ephedrine found in a search of the storage unit that Ms Stevens was using in Ormiston Road, East Tamaki, I am satisfied that it was at least as much as in March
2014.
[6] I propose to proceed on the basis that the total quantity of methamphetamine manufactured was in the region of 2 kilograms.
[7] Secondly, there is the issue of the extent of your involvement. Others who featured prominently in the evidence at your trial were Ms Stevens, her then partner
Mr Peter Shaw and Mr Nigel Bowker. All have pleaded guilty to the same or related
1 Pursuant to s 6(1)(b) Misuse of Drugs Act 1975.
2 Section 6(2)(a).
charges. Mr Shaw was sentenced in February 2015, Ms Stevens last week and
Mr Bowker will be sentenced in November.
[8] Ms Stevens was more of leading mind than Mr Shaw. The issue is whether you should be treated as equivalent to, or less culpable than, Ms Stevens.
[9] I accept that Ms Stevens was convicted on a greater array of charges but I am satisfied that your role was equivalent to hers and that you were a primary offender.
[10] In particular, I am satisfied that you controlled the property at Rataroa Road where each manufacture took place and where the Police terminated the operation in May 2014 and found you and Mr Bowker “cooking”. You and your long-term partner, Ms Clegg, were staying at the property, your vehicles and motor bikes were there, and the dogs you breed were there. I did not accept your account at trial that Mr Bowker was in control of the property or the caretaker.
[11] Nor do I accept that the $250,000 found at the property on termination was Mr Bowker’s. Not only am I satisfied that money was yours, it is evidence of the commercial nature of the enterprise.
Pre-sentence report
[12] I have read the report prepared by the Department of Corrections, counsel’s very thorough and “first class” submissions and the cases to which they have referred me.
[13] Your criminal history spans 33 years, and includes prior convictions for the manufacture and supply of methamphetamine, and supply of LSD. You are a member of the Head Hunters. Corrections say that you are highly likely to re-offend and pose a moderate risk of harm to others.
[14] Having heard your evidence at trial, I have no doubt that you are intelligent, industrious and very much your own man. I cannot imagine that you are subservient to anyone. You gave evidence that you trained as a chef and you clearly are a competent if not formally qualified mechanic. You comply with parole and bail
conditions and, as Mr Bonnar says, there is no suggestion that you engaged in criminal offending between 2008 and 2014. You have support from Ms Clegg, your four children, your mother and your mother in law. Corrections say you are conscious of the effect of your offending on them.
[15] On them and on the community Mr O’Carroll. Methamphetamine causes
widespread misery. Those who manufacture for profit – as you and Ms Stevens did
– suffer the consequences when they are caught.
Starting Point
[16] Your offending puts you in band 4 of R v Fatu.3 Band 4 is the highest and is for manufacturing large commercial quantities of more than 500 grams, and so vastly less than the quantity you manufactured.
[17] Band 4 requires a starting point – before matters personal to you are taken into account – of between 13 years’ and life imprisonment.
[18] The precise starting point should reflect the quantity produced, your overall role in the offending,4 and you are a primary offender, and the purposes and principles of sentencing5 to the extent these are not already reflected by the starting point for the range. I bear in mind particularly that the sentence I impose on you should be consistent with those imposed on your co-offenders.
[19] I have read the cases to which counsel referred me. They indicate that a starting point of 16 years’ imprisonment – which was the starting point for Ms Stevens – is well within range and that is the starting point I adopt.
Personal Circumstances
[20] I now turn to consider factors personal to you.
3 R v Fatu [2006] 2 NZLR 72 (CA).
4 At [31].
5 Sentencing Act 2002, ss 7 and 8.
Aggravating factors
[21] Your previous convictions for drug relating offending are an aggravating factor. There are numerous such convictions in the mid 1990s, including supply of class B drugs and conspiracy to supply class A drugs. And in 2004 you were sentenced to six and a half years imprisonment for manufacture, conspiracy to manufacture and conspiracy to supply methamphetamine which was then a class B
drug.6
[22] I propose to uplift by 9 months for this offending. That is less than the Crown submits is required but I think it sufficient particularly given the break in your offending between 2008 and 2014.
Mitigating factors
[23] I turn now to mitigating factors.
[24] Mr Bonnar asks me to take into account your age, your break from offending for a considerable period and the support you have from those to whom I have referred. I do not propose to discount for these matters. You are 51 – hardly in the latter stages of life. You are fortunate to have so much support, and I have already taken into account the hiatus in your offending.
[25] That said, I shall give you a 4 month reduction for your 6 months on bail in
2014, on a 24 hour curfew without any suggestion of a breach,7 and your participation in the CADS TR course earlier this year.
[26] This means that your end sentence on the three charges of manufacturing methamphetamine is 16 years 5 months’ imprisonment.
Minimum Period of Imprisonment
[27] There is no real dispute that a minimum period of imprisonment is required. This is serious drug offending, and there is a need for denunciation, deterrence and
6 At that time methamphetamine was a class B controlled drug.
7 R v Iosefa [2008] NZCA 453 at [43].
protection of the community. Despite the Crown’s submissions, however, I am not persuaded that there is good reason to impose a longer period than the 50 per cent of sentence that Ms Stevens received. I impose an MPI of 8 years, 2 months’ imprisonment.
Sentence
[28] Please stand Mr O’Carroll. On each charge of manufacturing methamphetamine, you are sentenced to 16 years 5 months’ imprisonment. All sentences are to be served concurrently with a minimum period of imprisonment of
8 years 2 months.
[29] Please stand down.
..................................................................
M Peters J
4