Brown v The the King - [2022] NZCA 586

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA289/2022
[2022] NZCA 586

BETWEEN	LEONARD JOSEPH BROWN Appellant
AND	THE KING Respondent

Hearing:	27 October 2022
Court:	Brown, Mallon and Downs JJ
Counsel:	D J Dufty for Appellant M W Nathan and B N Kirkpatrick for Respondent
Judgment:	30 November 2022 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Downs J)

Introduction

Leonard Brown pleaded guilty shortly before trial to a charge of supplying methamphetamine; a charge of conspiring to supply methamphetamine; and a final charge of possessing that drug for supply. The District Court imposed a sentence of five years and three months’ imprisonment.[1] Mr Brown appeals. An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed[2] or, in short, if the sentence is manifestly excessive.[3]

Background

[1]R v Tahana [2022] NZDC 9656 [Sentencing notes].

[2]Criminal Procedure Act 2011, s 250.

[3]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

Mr Brown’s offending was detected after police obtained a surveillance device warrant on 19 November 2019. Between then and 13 December 2019, Mr Brown arranged to buy 20 ounces of methamphetamine from co-defendants, then sell the drug to lower-level dealers and other users. In this context, Mr Brown twice supplied 10 ounces of methamphetamine (a total of 560 grams). This was the basis for the representative charge of supplying methamphetamine. On the second occasion, Mr Brown and a co-defendant discussed her retrieval of $50,000 in cash — the purchase price for 10 ounces of methamphetamine. Closed‑circuit television footage from Mr Brown’s home captured the transaction.
On 13 December 2019, co-defendants agreed to supply Mr Brown an unspecified quantity of methamphetamine. This gave rise to the conspiracy charge. Mr Brown collected $55,000 in cash. He was arrested the same day, as were the other defendants. Police found $55,705 in cash in Mr Brown’s car, together with scales, and found a further $1,775 and eight grams of methamphetamine on Mr Brown’s person. The latter discovery gave rise to the possession for supply charge. Police found 396 grams of methamphetamine in the co‑defendants’ car.
On 11 March 2022, Mr Brown pleaded guilty. His trial was to begin 21 March 2022.
Judge Down concluded Mr Brown played a significant role in the supply chain, as he had “an operational or management function”, “subordinates” and was “motivated by financial or other advantage”.[4] The Judge adopted a global starting point of nine years’ imprisonment and added six months for Mr Brown’s history of drug offending.[5]
[4]Sentencing notes, above n 1, at [17]
[5]At [24].
The Judge deducted 20 per cent for Mr Brown’s guilty pleas and five per cent for his personal circumstances, as revealed by a cultural report provided under s 27 of the Sentencing Act 2002. The Judge deducted another five per cent for Mr Brown’s “health struggles”, which…

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 Brown v The the King

Details

AGLC: Brown v The the King [2022] NZCA 586
Case: [2022] NZCA 586
Decision Date: 30 November 2022 at 10.30 am

CaseChat Overview and Summary

Leonard Joseph Brown, the appellant, appealed against the sentence imposed by the District Court for his involvement in the supply and conspiracy to supply methamphetamine, as well as possession of the drug for supply purposes. The District Court imposed a sentence of five years and three months' imprisonment, which Brown contested as manifestly excessive. The appeal was heard by the Court of Appeal of New Zealand, comprising Brown, Mallon, and Downs JJ. Counsel for the appellant was D J Dufty, and for the respondent, M W Nathan and B N Kirkpatrick.

The primary legal issues the Court of Appeal needed to decide were whether the sentence imposed by the District Court contained errors that warranted a different sentence and whether the sentence was manifestly excessive. The Court had to consider the appellant's personal circumstances, including his background and rehabilitation efforts, and assess if the sentence appropriately reflected these factors.

The Court of Appeal found that the sentence imposed by the District Court was not manifestly excessive. It noted that the appellant played a significant role in the methamphetamine supply chain and had a history of drug offending. The Court found that the overall discount for personal mitigating features, including the appellant's background and methamphetamine use, was appropriate and consistent with recent case law. Regarding rehabilitation, the Court concluded that the 15 per cent deduction for the appellant's rehabilitative efforts was appropriate, considering the significant scale of his commercial drug-dealing. The Court was not persuaded that the sentence imposed was manifestly excessive.

The Court of Appeal dismissed the appeal, affirming the sentence imposed by the District Court. The Court held that the District Court had appropriately considered the appellant's personal circumstances and rehabilitation efforts in determining the sentence. The Court concluded that the sentence was not manifestly excessive and did not warrant a different sentence.

Orders