Blackley v The Queen - [2020] NZHC 3048

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-443-019

[2020] NZHC 3048

BETWEEN
CHRISTOPHER JOHN BLACKLEY

Appellant

AND

THE QUEEN

Respondent

Hearing: 16 November 2020

Appearances:

N L Laird for the Appellant

J E Bourke for the Respondent

Judgment:

16 November 2020

JUDGMENT OF GRICE J

[1] Mr Blackley entered pleas of guilty to charges of aggravated robbery, possession of MDMA1 and possession of methamphetamine, on 21 November 2019.2 He had accepted a sentence indication given on 12 November 2019. Mr Blackley was finally sentenced to four years and six months’ imprisonment in the New Plymouth District Court on 14 February 2020.3

[2] Mr Blackley appeals this sentence on the basis that a cultural report pursuant to s 27 was not prepared in time for the hearing, so the Judge did not consider the cultural factors which Mr Blackley says would have allowed a further discount if the information had been available to the Judge.

1      A recreational drug known as Ecstasy.
2      Crimes Act 1961, s 235 (maximum sentence of 14 years’ imprisonment) and Misuse of Drugs Act 1975, s 7 (maximum sentence of three months’ imprisonment and/or a $500 fine for MDMA and six months’ imprisonment and/or a $1,000 fine for methamphetamine).
3      R v Blackley [2020] NZDC 2467.

BLACKLEY v R [2020] NZHC 3048 [16 November 2020]

[3] The Crown says that the report is not fresh evidence but, nevertheless, accepts it is credible. It anticipates that the report is likely to be admitted under the Court’s discretion. It submits a discount in the range of 10 to 15 per cent might be appropriate if the Court considered it appropriate to both admit the cultural report as evidence and to undertake a reconsideration of sentence.

[4] I conclude that it is in the interests of justice that the report be admitted and considered on appeal. Both Ms Laird, for Mr Blackley, and the Crown urge that the matter be dealt with today on appeal rather than remitting it to the District Court for consideration. Therefore, I will also reconsider the sentence. I will deal with the leave application and the sentence in more detail below.4

Background

[5] Mr Blackley and two associates travelled to New Plymouth on 14 May 2019. The next day, Mr Blackley and one associate went around to a bar about just after
1.00 pm. His associate was disguised with a black hoodie and black bandanna and was wearing dark clothing. Mr Blackley was wearing dark clothing with a hoodie and dark sunglasses. His associate produced a firearm and pointed it at one of the staff, demanding they be given money. Mr Blackley stood close to his associate with his hands in his pockets. $2,600 was handed over from the till.

[6] On 6 June 2019, Mr Blackley was a passenger in a vehicle in Palmerston North which was pulled over by the police. He was arrested on an unrelated matter, a warrantless search…

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 Blackley v The Queen

Details

AGLC: Blackley v The Queen [2020] NZHC 3048
Case: [2020] NZHC 3048
Decision Date: 16 November 2020

CaseChat Overview and Summary

The appellant, Christopher John Blackley, appealed his sentence for aggravated robbery, possession of MDMA, and possession of methamphetamine. The New Plymouth District Court had sentenced him to four years and six months’ imprisonment, with two months for the drug possession to be served concurrently. The appellant argued that the sentence was excessive as it did not take into account a cultural report under s 27 of the Sentencing Act 2002, which was not prepared in time for the sentencing hearing. The Crown did not oppose the admission of the report as evidence. The Court held that it was in the interests of justice to admit the report and reconsider the sentence on appeal, rather than remitting it back to the District Court. The cultural report highlighted Mr Blackley’s disadvantaged background, including a history of abuse, neglect, and disconnection from his Māori heritage, which the Court considered relevant to his offending. The Court found that a 15 per cent discount was appropriate, bringing the sentence down to three years and six months’ imprisonment.

The appeal was allowed, and the sentence was set aside, to be replaced with a sentence of three years and six months’ imprisonment. The Court allowed the cultural report to be adduced as further evidence and granted a 15 per cent discount for the personal factors set out in the report. The appellant’s criminal history and the need for community protection were considered, but the Court found that the cultural factors and expressions of remorse warranted a discount. The Court noted that the discount was at the top of the range suggested by the Crown and considered it a generous discount in the circumstances. The Court found that the original sentence imposed in the District Court was manifestly excessive, and the appeal was allowed.

Orders