R v O'Leary

[2016] NZHC 652

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-005968 [2016] NZHC 652

THE QUEEN

v

PATRICK JOHN O'LEARY

Hearing:	12 April 2016
Appearances:	N Pointer for the Crown A N D Garrett for the Defendant
Date:	12 April 2016

SENTENCING REMARKS OF MANDER J

[1]      Mr O’Leary, you appear for sentence on charges of:

a.     offering to supply a class A drug, cocaine;

b.    four charges of offering to supply a class B drug, MDMA;

c.     one charge of offering to supply a class B drug, Amphetamine;

d.    one charge of possession of a class C drug, BZP, for the purposes of sale;

and

e.     three charges involving dealing in cannabis.

R v PATRICK JOHN O'LEARY [2016] NZHC 652 [12 April 2016]

[2]      You  came  to  the  attention  of  the  Police  through  your  involvement  with another person who was of significant interest to the Police.   Your offending has been characterised as that of a street-level dealer, operating at a relatively minor commercial level although in respect of a range of drugs.

[3]      Your offending occurred over the course of some six weeks.  During that time you sold unknown quantities of cannabis and pills purporting to be MDMA.  You offered to supply amphetamine in May last year.  In June you offered to sell ecstasy and were involved in a number of relatively small transactions.  Pills purporting to be ecstasy subsequently seized by police were found to contain BZP rather than MDMA. The police search also located nine snap-lock bags containing cannabis and indicia of dealing involving electronic scales and cash.  On one occasion you offered to supply cocaine.

[4]      At the age of 39, this is the first time you have appeared in Court facing criminal charges.  You have been in gainful employment.   Letters provided to the Court indicate you have the respect of people you have worked with and for.  You have the support of your family which should hopefully assist you in continuing to recognise the seriousness of your offending and the need to avoid any repetition of it in the future.

[5]      Last month you received a sentence indication from Justice Venning.  In that indication he provided detailed particulars of your offending.   He referred to the matters  which  had  to  be  considered  by the  Court  in  arriving  at  an  appropriate sentence.  Justice Venning’s indication is not binding on me.  However I have had the benefit of reading the Judge’s decision and I agree with his assessment of your offending, the level of your involvement and importantly the sentence indicated. Justice Venning’s sentence indication will be attached to my sentencing notes and is to be treated as part of my reasons for the sentence which I am about to impose.

[6]      It was indicated to you that if you pleaded guilty to all charges, subject to you being assessed as suitable for home detention, the sentence of the Court would be no more than 12 months’ home detention.  Based on that indication you pleaded guilty

the same day.  You have now been assessed as suitable for home detention and the proposed address has been approved.

[7]      You are described by the pre-sentence report writer as being embarrassed at your involvement in the distribution of drugs and genuinely remorseful.   You appreciate that the offending is serious and that the consequence for this type of offending is usually likely to be imprisonment.  You have demonstrated some insight into the destructive effect drugs can have on the wider community and you are reported to be shameful at your involvement.

[8]      Mr Garrett has submitted that further credit should be afforded to you for the remorse you have expressed to the pre-sentence report writer that your risk of re- offending is minimal and that you have been subject to bail conditions.  Credit that can be extended for personal circumstances in respect of drug dealing offending is limited and in my view the imposition of a sentence of home detention rather than imprisonment reflects and gives effect to those mitigating circumstances.

[9]      Mr Garrett this morning has specifically drawn to my attention and stressed the financial difficulties you will be facing as a result of a home detention sentence and he puts that forward as supporting some reduction in the length of the period of home  detention.     The  difficulty  however  with  that  submission  is  that  any modification that I may have thought or may think as being appropriate to take into account that difficulty would be very minimal and from a practical point of view would simply not address the issues that he has raised.  Accordingly in my view I think it important that the sentence indicated to you and the length of that sentence remain intact.

[10]     It  follows  therefore  that  on  each  of  the  charges  you  are  sentenced  to

12 months’ home  detention;  each  of  those  individual  sentences  will  be  served concurrently.    The  sentence  of  home  detention  will  be  served  at  the  address nominated in the pre-sentence report.

[11]     Mr O’Leary it needs to be made very clear to you that the prime reason you are not going to prison today is because these are your first criminal convictions.

Should there be any repeat of your dealing in drugs it is almost inevitable that is where you will end up.

Solicitors:

Raymond Donnelly & Co, Christchurch

Anthony Garrett, Christchurch