Bancroft v The Queen - [2015] NZCA 192

IN THE COURT OF APPEAL OF NEW ZEALAND

CA737/2014
[2015] NZCA 192

BETWEEN	WILLIAM PHILLIP BANCROFT Appellant
AND	THE QUEEN Respondent

Hearing:	29 April 2015
Court:	French, Simon France and Clifford JJ
Counsel:	M Dyhrberg QC for Appellant G A Kelly for Respondent
Judgment:	30 April 2015 at 11.30 am
Reasons:	26 May 2015

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BPursuant to s 385(3)(c) of the Crimes Act 1961, the case is remitted to the High Court with a direction that:
(a)The High Court quash the sentence of three years and six months’ imprisonment.
(b)The High court re-sentence the appellant on the basis of a factual finding that the amount of methamphetamine supplied was 0.5 grams.

CThe case is to be brought before the High Court at the earliest possible opportunity.

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REASONS OF THE COURT

(Given by French J)

Introduction

Mr Bancroft filed an appeal against sentence on the grounds of disparity. In a results decision delivered on 30 April 2015, we allowed the appeal and remitted the case back to the High Court for re-sentencing.[1]
[1]Bancroft v R [2015] NZCA 140.
Our reasons for that decision now follow.

Background

Mr Bancroft was jointly charged with Mr Bogue on a count of supplying methamphetamine to an unknown person. The particulars of the charge stated that the amount involved was half an ounce (14 grams).
The charge arose out of a police investigation into a drug syndicate which resulted in a number of arrests for drug-related charges against several other people.
Mr Bancroft defended the charge laid against him, but was found guilty at trial. He was sentenced on 7 August 2014.[2] In sentencing him, the trial Judge, Brewer J, found that the quantity of methamphetamine involved was half an ounce and adopted a starting point of three years’ imprisonment. This was adjusted upwards by six months on account of a personal aggravating factor, resulting in an end sentence of three and a half years’ imprisonment.
[2]R v Murray [2014] NZHC 1843.
At the sentencing hearing, Mr Bancroft’s counsel had submitted that the correct amount was only half a gram. However, the Judge rejected that contention on the grounds of trial evidence about the amounts characteristically supplied by Mr Murray (the kingpin of the syndicate) and evidence that Mr Bogue was not a person who dealt in such small amounts as half a gram.[3] Justice Brewer also stated that looking at the intercepted communications, the quantity of half an ounce fitted the overall matrix of evidence.[4]
[3]At [81].
[4]Ibid.
Unlike Mr Bancroft, Mr Bogue pleaded guilty to the charge as well as five other drug-related offences arising out of his role in the syndicate. Mr Bogue disputed the quantities of methamphetamine involved and a contested facts hearing was set down before Brewer J for 14 August 2014. On the day before the disputed facts hearing, Mr Bogue filed an application requesting that Brewer J recuse himself because of the findings he had…

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 Bancroft v The Queen

Details

AGLC: Bancroft v The Queen [2015] NZCA 192
Case: [2015] NZCA 192
Decision Date: 30 April 2015 at 11.30 am

CaseChat Overview and Summary

In Bancroft v The Queen, William Phillip Bancroft appealed against his sentence, arguing it was disproportionate compared to the sentence received by his co-defendant, Mr Bogue. The Court of Appeal of New Zealand heard the appeal and found that the disparity in sentencing was unjust, warranting a re-sentencing. The legal issues at hand were whether the trial judge should have recused himself from the contested facts hearing and if the disparity in sentencing could be justified. The Court of Appeal concluded that the trial judge should not have recused himself, as he was in the best position to determine the facts due to his familiarity with the case. Furthermore, the disparity in sentencing was found to be unjust, leading to the Court of Appeal allowing the appeal and remitting the case back to the High Court for re-sentencing. The Court of Appeal also noted that, in future cases, defence counsel must provide access to the material that informed the previous decision and demonstrate how the new evidence supports a different conclusion.

The Court of Appeal examined the facts of the case and determined that the trial judge's decision to conduct a contested facts hearing was the most appropriate course of action. The Court held that the trial judge had a comprehensive understanding of the background facts and the activities of the drug syndicate, and was in a far better position than any other judge to determine the quantity of methamphetamine involved in the offence. The Court further emphasised that there was no reason to believe the trial judge would not keep an open mind to the possibility that the fresh evidence might raise doubts about his prior conclusions.

In light of the findings, the Court of Appeal allowed the appeal against the sentence and directed the High Court to quash the original sentence of three years and six months' imprisonment. The Court of Appeal also instructed the High Court to re-sentence Mr Bancroft on the basis of a factual finding that the amount of methamphetamine supplied was 0.5 grams. The case was to be brought before the High Court at the earliest possible opportunity.

Orders