Blackburn v The the King - [2022] NZHC 2696

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-485-000046

[2022] NZHC 2696

BETWEEN
RICHARD JAMES BLACKBURN

Appellant

AND

THE KING

Respondent

Hearing: 18 October 2022

Appearances:

S J Gill for the Appellant

M Paish for the Respondent

Judgment:

18 October 2022

JUDGMENT OF GENDALL J

Introduction

[1] On 11 July 2022, the appellant, Mr Richard Blackburn, was sentenced by Judge Kelly in the Wellington District Court to two years and eight months’ imprisonment in respect of the following Crown and Police charges:1

Crown charges

(a)offering to supply a Class A controlled drug, namely methamphetamine (representative charge);2

1 R v Blackburn [2022] NZDC 13313.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2) — maximum penalty life imprisonment.

BLACKBURN v R [2022] NZHC 2696 [18 October 2022]

(b)conspiracy to deal a Class A controlled drug, namely methamphetamine (representative charge);3

(c)offering to supply a Class B controlled drug, namely GBL;4

(d)unlawful possession of a firearm;5

(e)possession of a Class A controlled drug, namely methamphetamine, for the purpose of supply;6

(f)possession of a Class B controlled drug;7

(g)possession of a Class C controlled drug, namely cannabis;8

(h)possession of utensils;9

(i)unlawful possession of ammunition;10

(j)possession of a Class A controlled drug, namely methamphetamine, for the purpose of supply (representative charge);11

Police charges

(k)unlawfully in an enclosed yard;12

(l)dangerous driving (x2);13

3      Section 6(2A)(a) — maximum penalty 14 years’ imprisonment.
4      Section 6(1)(c) and (2)(b) — 14 years’ imprisonment
5      Arms Act 1983, s 45(1) — maximum penalty four years’ imprisonment.
6      Misuse of Drugs Act, s 6(1)(f) and 2(a) a— maximum penalty life imprisonment.
7      Section 7(1)(a) and (2) — maximum penalty six months’ imprisonment.
8      Section 7(1)(a) and (2) — maximum penalty three months’ imprisonment.
9      Section 13(1)(a) and (3) — maximum penalty one year imprisonment.
10     Arms Act, s 45(1) — maximum penalty four years’ imprisonment.
11     Misuse of Drugs Act, s 6(1)(c) and (2)(a) — maximum penalty life imprisonment.
12     Summary Offences Act 1981, s 29(1)(b) — maximum penalty three months’ imprisonment.
13     Land Transport Act 1998, s 35(1)(b) — maximum penalty three months’ imprisonment with a mandatory disqualification of six months or more.

(m)driving whilst forbidden;14

(n)aggravated failing to stop (x2);15

(o)driving whilst suspended;16

(p)possession of an offensive weapon;17

(q)possession of a Class B controlled drug;18

(r)receiving property over $1000 (x3);19 and

(s)receiving property under $500.20

[2] The appellant pleaded guilty to the charges following a sentence indication given on 14 March 2022. The background to the offending is well summarised at [5]–
[28] of the sentencing decision.

[3] The final sentence imposed differed from the sentence indication given in three material ways. First, the discount for addiction issues and rehabilitative efforts was reduced from 30 per cent to 20 per cent. Secondly, however, the Judge provided a further 15 per cent discount to those indicated. Thirdly, the reduction for time spent on restrictive EM bail was increased from four months to five months.

[4] The appellant now appeals…

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 Blackburn v The the King

Details

AGLC: Blackburn v The the King [2022] NZHC 2696
Case: [2022] NZHC 2696
Decision Date: 18 October 2022

CaseChat Overview and Summary

The appellant, Richard James Blackburn, was sentenced to two years and eight months’ imprisonment in the Wellington District Court for various drug and firearms charges. Blackburn appeals the sentence on the basis that it was manifestly excessive. He contends that the Judge erred in reducing the discount for drug addiction and rehabilitative efforts from 30 per cent to 20 per cent, and in not providing an additional 15 per cent discount in respect of his s 27 cultural report. Blackburn argues that the sentence should have been 22 months’ imprisonment, which should then have been commuted to one of home detention.

The court considers the legal issue of whether the sentence imposed was manifestly excessive. Under the Criminal Procedure Act, a sentencing indication given to the defendant is binding on the Judge unless information becomes available to the Court after the sentence indication but before sentencing, and the Judge is satisfied the information materially affects the basis on which it was given. The court must dismiss an appeal against sentence unless there was an error in the sentence imposed and a different sentence should have been imposed. The court will not intervene unless the sentence was outside the range available to the sentencing Judge.

In this case, the Judge received additional information in the form of the s 27 cultural report after providing the sentence indication. The Judge decided to restructure the sentence to provide Blackburn more by way of overall discount. While the Judge should have informed Blackburn she was proposing to restructure the sentence and given him the opportunity to reconsider his guilty plea, the court finds the sentence imposed was reasonably open to the Judge. The reduction in respect of the credit for addiction and rehabilitative efforts was counterbalanced by the allowance imposed in respect of the s 27 report. The final sentence of two years and eight months’ imprisonment was not manifestly excessive in all the circumstances.

The appeal against sentence is dismissed. The sentence imposed by the Wellington District Court is affirmed.

Orders