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.…

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'Leary

Details

AGLC: R v O'Leary [2016] NZHC 652
Case: [2016] NZHC 652
Decision Date: 12 April 2016

CaseChat Overview and Summary

The case of R v O'Leary was heard in the High Court of New Zealand Christchurch Registry. The defendant, Patrick John O'Leary, was charged with multiple drug-related offences, including offering to supply class A and B drugs, possession of a class C drug for sale, and dealing in cannabis. The case involved O'Leary's involvement in street-level drug dealing over a period of six weeks, during which he sold various drugs including cannabis, MDMA, amphetamine, and BZP. This was O'Leary's first appearance in court, and he had been in gainful employment with a good reputation.

The primary legal issues in this case centred around the appropriate sentence for O'Leary's drug-related offences, given that it was his first criminal conviction. The court had to consider the nature and extent of his involvement in drug dealing, his remorse, and the potential for rehabilitation. The defence argued for a sentence of home detention rather than imprisonment, highlighting O'Leary's genuine remorse, minimal risk of re-offending, and the financial difficulties he would face under a home detention sentence.

The court agreed with the sentence indication provided by Justice Venning, which recommended a sentence of no more than 12 months' home detention if O'Leary pleaded guilty and was assessed as suitable for home detention. The court acknowledged O'Leary's remorse and insight into the destructive effects of drug dealing but also emphasised that the primary reason for not imposing a prison sentence was his lack of prior criminal convictions. The court rejected the defence's argument for a reduced period of home detention due to financial difficulties, maintaining that the proposed sentence adequately reflected the seriousness of the offences and the need for deterrence. O'Leary was sentenced to 12 months' home detention, with each sentence to be served concurrently.

Orders