Bell v Police - [2014] NZHC 3052

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-488-000006 [2014] NZHC 3052

BETWEEN
NORMAN JOHN BELL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 December 2014

Appearances:

R Vigor-Brown for Appellant
M A Jarman-Taylor for Respondent

Judgment:

2 December 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 2 December 2014 at 3.45 pm, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Crown Solicitor, Whangarei
Copy to: R Vigor-Brown, Whangarei

BELL v NEW ZEALAND POLICE [2014] NZHC 3052 [2 December 2014]

[1] Norman John Bell pleaded guilty to possession of a Class B controlled drug ephedrine, possession of methamphetamine and possession of cannabis. On 28
January 2014 Mr Bell was sentenced by Judge K B de Ridder in the District Court at Whangarei to four and a half years’ imprisonment for possession of the ephedrine, two months in respect of the cannabis, and four months in respect of the methamphetamine. In reaching the sentence the Judge took a starting point of six years and gave an allowance of 25 per cent for the early guilty plea.

[2] Mr Bell was a passenger in a car that was stopped on the Northern Motorway for speeding. The police ascertained that Mr Bell had a warrant to arrest for unpaid fines. He was arrested. A preliminary search disclosed he had a glass methamphetamine pipe. When searched in more detail at the police station Mr Bell was found in possession of a black package containing white powder, which was analysed and found to contain 490.1 grams of ephedrine. He also had $20,062 in his possession. Mr Bell also had keys to a Subaru motor vehicle on him. The police located Mr Bell’s Subaru and on searching it found 33 grams of cannabis, four needles and syringes, a bottle labelled morphine sulphate, 92 pills or capsules consisting of nine different types of pills and several large bags containing methamphetamine. The total weight of the methamphetamine was 11.171 grams.

[3] The summary of facts, which was accepted for the purposes of sentence, stated that the ephedrine when used to manufacture methamphetamine returned between 60 to 80 per cent depending on the manufacture. This meant that 490 grams of ephedrine would return between 300 to 400 grams of methamphetamine.

[4] Mr Bell filed his own appeal. When the matter was before Woolford J on 7

August 2014 the AVL link by which Mr Bell was to present his appeal was unavailable for technical reasons. The appeal had to be adjourned. The Judge noted that Mr Bell challenged counsel’s representation in the District Court, drew Mr Bell’s attention to r 8.7 of the Criminal Procedure Rules 2012 and the need to waive privilege and made directions for the hearing of the appeal.

[5] In his affidavit Mr Bell complained at the reference in the summary of facts to the conversion rate of 60 – 80 per cent, said Mr Fairley had only seen him briefly and had not…

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 Bell v Police

Details

AGLC: Bell v Police [2014] NZHC 3052
Case: [2014] NZHC 3052
Decision Date: 2 December 2014

CaseChat Overview and Summary

Norman John Bell appealed against his conviction and sentence for possession of controlled drugs. Bell had been arrested after being found in possession of a methamphetamine pipe, 490 grams of ephedrine, $20,062 in cash, and keys to a vehicle containing cannabis and methamphetamine. The appeal centered on the appropriateness of the starting point for sentencing, which was six years' imprisonment. Bell's counsel argued that the starting point was too high, given the quantity of ephedrine, and should have been in the range of three to nine years. The Court considered the conversion rate of ephedrine to methamphetamine and Bell's role in the offending. The Court concluded that the six-year starting point was appropriate, given the significant quantity of ephedrine and the substantial amount of cash found on Bell. The Court held that the sentence imposed was not manifestly excessive and dismissed the appeal.

The Court of Appeal reviewed the starting point for sentencing and the role of the offender. Bell's counsel argued that the quantity of ephedrine placed Bell in the category of a smaller operation, warranting a lower starting point. However, the Court found that the significant quantity of ephedrine and the large amount of cash found on Bell supported a starting point in the range of five to eight years. The Court determined that the six-year starting point was appropriate and that the sentence imposed was not manifestly excessive. The appeal was dismissed, and the original sentence was upheld.

Orders