Addenbrooke v Police - [2016] NZHC 2254

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-15 [2016] NZHC 2254

BETWEEN
JEREMY BLAIR ADDENBROOKE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 September 2016

Appearances:

A Dawson for Appellant
R Smith for Respondent

Judgment:

23 September 2016

JUDGMENT OF MANDER J

[1] The appellant, Mr Jeremy Addenbrooke, was sentenced to 10 months imprisonment on a charge of possession of cannabis for sale.1 He appeals that sentence on the basis it was manifestly excessive.

Background

[2] A police search of Mr Addenbrooke’s backpack revealed he was in possession of nine $50 deal bags of cannabis (18 grams), with a combined street value of $450. He was also carrying $249 in cash. Mr Addenbrooke admitted ownership of the cannabis and his intention to sell five or six of the deal bags (10-12 grams).

Approach to appeal

[3] The appeal Court will only disturb a sentence if the appellant can establish there has been an error in the sentence imposed and that a different sentence should

1 Police v Addenbrooke [2016] NZDC 12825.

ADDENBROOKE v NEW ZEALAND POLICE [2016] NZHC 2254 [23 September 2016]

be substituted.2 In the absence of such a finding the Court must dismiss the appeal.3

The requirement that a sentence be manifestly excessive before it will be disturbed on appeal remains part of the approach to be taken to an appeal against sentence, notwithstanding the absence of any express reference to that test in the Criminal Procedure Act 2011.4

[4] A submission that a sentence is manifestly excessive (or inadequate) is premised on a contention that an error has been made in identifying the starting point, or that incorrect discounts or additions have been made, or some other error affecting the ultimate sentence.5 However, whether a sentence is manifestly excessive is to be examined in terms of the sentence actually imposed, rather than the process by which the sentence was reached.6

The sentencing decision

[5] In approaching the sentencing exercise, Judge Turner referred to the guideline decision of R v Terewi, and observed that Mr Addenbrooke’s offending fell within category 2, involving as it did a small quantity of cannabis for commercial purposes.7 The starting point for such offending is generally between two and four years, but a lower starting point can be adopted where sales are infrequent or a small quantity of cannabis is involved. Judge Turner noted the quantity of cannabis was at the lower end of the scale, involving five to six deal bags with a total value of between $300 and $500. As a result, the Judge took a starting point of 12 months
imprisonment.

[6] At the time of the offending, Mr Addenbrooke was subject to release conditions following a sentence of imprisonment on two charges, one of which included possession of a Class A drug. As a result, an uplift of two months was
imposed. Judge Turner afforded a 30 per cent discount for Mr Addenbrooke’s

2      Criminal Procedure Act 2011, s 247 and 250.
3      Section 250(3).
4

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 Addenbrooke v Police

Details

AGLC: Addenbrooke v Police [2016] NZHC 2254
Case: [2016] NZHC 2254
Decision Date: 23 September 2016

CaseChat Overview and Summary

Jeremy Addenbrooke appeals his sentence of 10 months imprisonment for possession of cannabis for sale. The High Court must determine if the sentence is manifestly excessive. The appeal court will only intervene if there has been an error in the sentence imposed and a different sentence should be substituted. The court found Mr Addenbrooke in possession of nine bags of cannabis with a street value of $450 and $249 in cash. He admitted ownership and his intention to sell five or six of the bags. The court considered the starting point for such offending to be between two and four years, but a lower starting point could be adopted where sales are infrequent or a small quantity of cannabis is involved. The court took a starting point of 12 months imprisonment. An uplift of two months was imposed due to Mr Addenbrooke being subject to release conditions at the time of the offending. A 30 per cent discount was afforded for Mr Addenbrooke's personal circumstances and his early guilty plea. The court decided that the sentence was within the available range and could not be considered manifestly excessive.

The court dismissed the appeal and found the sentence imposed was within the available range. There was no error by the sentencing judge, and the appeal must inevitably fail.

Orders