R v O'Carroll - [2015] NZHC 2404

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 Defendant

Date:

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…

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'Carroll

Details

AGLC: R v O'Carroll [2015] NZHC 2404
Case: [2015] NZHC 2404
Decision Date: 2 October 2015

CaseChat Overview and Summary

The defendant, David Gerrard O'Carroll, was sentenced for three charges of manufacturing methamphetamine. The case was presided over by M Peters J in the High Court of New Zealand. The maximum penalty for these offences is life imprisonment. The court was tasked with determining the appropriate sentence for the defendant, taking into account the quantity of methamphetamine produced, the defendant's role in the manufacturing process, and his criminal history.

The court determined that the total quantity of methamphetamine manufactured was approximately 2 kilograms. The defendant's involvement in the manufacturing process was considered to be equivalent to that of Ms. Shannon Stevens, one of his co-offenders. The defendant's criminal history, which spans 33 years and includes prior convictions for drug manufacturing and supply, was also taken into account. The court accepted that the defendant was highly likely to re-offend and posed a moderate risk of harm to others.

After considering the starting point for the sentence, which was 16 years' imprisonment, the court took into account mitigating factors such as the defendant's age, the break in his offending, and the support he has from family and friends. The court also considered aggravating factors such as the defendant's previous convictions for drug-related offences. The court imposed a sentence of 16 years 5 months' imprisonment on each charge, to be served concurrently, with a minimum period of imprisonment of 8 years 2 months. The sentence was consistent with those imposed on the defendant's co-offenders.

Orders