[1] The appellant, Mr Bailey, was sentenced1 on 17 March 2021 by Judge Large to a term of two years four months’ imprisonment for one charge of supplying a Class A drug namely methamphetamine2, one charge of possessing methamphetamine for supply3 and one charge of possessing cannabis for sale.4

[2] Mr Bailey appeals his sentence on the basis it was manifestly excessive because the starting point adopted for the methamphetamine charges was too high and the uplift applied for the possession of cannabis for sale charge was also too high.

[3]The respondent submits the sentence imposed by the Judge was within range.

[4] The appeal was filed out of time and the question of leave must first be considered. No opposition to leave being granted is mounted by the respondent.

Leave to appeal out of time

[5] The appeal was filed out of time on 5 July 2021. The delay was caused in part by Legal Services assigning Mr Bailey counsel who was not approved to appear on such matters. There was then a delay in finding Mr Bailey an appropriately qualified counsel.

[6] The respondent accepts these reasons for the failure to file the appeal within time and accepts they suffer no prejudice as a result of these delays.

[7] I am satisfied in these circumstances that leave to file the appeal out of time should be granted.

Background

[8] On 12 February 2020 police executed a search warrant at Mr Bailey’s address. Mr Bailey was present with two associates. He directed police to his garage and

1      R v Bailey [2021] NZDC 4971.
2      Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2); maximum penalty life imprisonment.
3      Misuse of Drugs Act, ss 6(1)(f) and 6(2); maximum penalty life imprisonment.
4      Misuse of Drugs Act, ss 6(1)(e) and 6(2); maximum penalty eight years’ imprisonment.

pointed out a quantity of cannabis and methamphetamine. As a result, police located four bags of methamphetamine on the coffee table, total weight 0.931 grams. Also located on the coffee table was a zip-lock bag of good-quality cannabis weighing approximately 6 grams.

[9] A further search of the garage located a backpack belonging to Mr Bailey. Inside was a total of $3,530 cash, small empty zip-lock “deal bags”, scales and five bags of methamphetamine totalling 2.3 grams. The five bags of methamphetamine all weighed a similar amount and were consistent with a dealing size of 0.5 grams.

[10] Also inside the bag were six small zip-lock bags of cannabis. They were consistent in…

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 Bailey v R

Details

AGLC: Bailey v R [2021] NZHC 2225
Case: [2021] NZHC 2225
Decision Date: 31 August 2021

CaseChat Overview and Summary

Ricky Adam Bailey appealed against his sentence, arguing that the starting point adopted for the methamphetamine charges was too high and the uplift applied for the possession of cannabis for sale charge was also too high. The appeal was filed out of time and the court had to first consider the question of leave. The respondent did not oppose leave being granted. The court was satisfied that leave to file the appeal out of time should be granted. The court considered the relevant sentencing principles and authorities, including the Court of Appeal decision in Zhang v R. The court concluded that the starting point adopted by the Judge was within the appropriate range available to the Judge. The court accepted that the uplift for the cannabis offending was excessive, especially having regard to the four-month uplift for more serious offending in Manuka v R. However, the discounts granted by the Judge more than overcame any error in the uplifts and therefore the end sentence of two years four months’ imprisonment was not manifestly excessive. The application for leave to appeal out of time was granted and the appeal was dismissed.

Orders