Bryant v R - [2011] NZCA 512

IN THE COURT OF APPEAL OF NEW ZEALAND

CA425/2011
[2011] NZCA 512

BETWEEN DONALD RICHARD BRYANT
Appellant

AND THE QUEEN
Respondent

Hearing: 3 October 2011

Court: O'Regan P, Stevens and Andrews JJ

Counsel: P F Wicks for Appellant
K A L Bicknell for Respondent

Judgment: 12 October 2011 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

The appellant, Mr Bryant, pleaded guilty in the District Court to various charges under the Misuse of Drugs Act 1975. The most serious charges, laid on an indictable basis, concerned selling a Class C controlled drug, namely cannabis, to persons over the age of 18 years and having cannabis plant in his possession for the purpose of supply. The appellant also pleaded guilty to charges laid in summary jurisdiction of being in possession of cocaine, ecstasy and cannabis resin. The District Court declined jurisdiction and committed the appellant to the High Court for sentence.
The appellant was sentenced by Lang J to two years imprisonment.[1] He appeals against that sentence on the basis that the Judge erred in imposing imprisonment rather than a sentence of home detention. The alleged errors include placing weight on the long periods of unsupervised boredom experienced by those in home detention, leading to a temptation of re-offending, and giving insufficient weight to the appellant’s medical disabilities. An additional ground of appeal is that the Judge erred in not reducing the end sentence of imprisonment further by taking into account the appellant’s medical condition.
[1] R v Bryant HC Auckland CRI-2011-004-3292, 21 June 2011.
For the purposes of the appeal, the appellant filed an affidavit in which he deposed to no longer smoking cannabis and not wanting to be involved with it or other drug in the future. He also described the living circumstances at his home address, the back half of which is a music studio and from which he worked as a musician. The appellant also relied on an affidavit from his partner regarding the circumstances in which he would live and the supervision she would provide if his appeal were successful and a sentence of home detention imposed.
The respondent submits that the Judge took the appropriate approach on sentencing in relation to the fettered judicial discretion to choose between home detention and a short term of imprisonment. In carrying out such evaluative task the Judge placed the correct weight on various relevant considerations and no error has been shown that warrants appellate intervention.

Factual background

On 23 February 2011 police executed a search warrant at the appellant’s residential address in Auckland. On searching the premises, the police found four cake tins on a kitchen table containing a total of 190 grams of loose cannabis plant material; a further 67.5 grams of cannabis plant material in a kitchen drawer; some 12 grams of cannabis resin in the freezer; approximately 134 grams of cannabis plant material in an upstairs office area; a tea cup containing…

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 Bryant v R

Details

AGLC: Bryant v R [2011] NZCA 512
Case: [2011] NZCA 512
Decision Date: 12 October 2011

CaseChat Overview and Summary

In the case of Bryant v R, the appellant, Mr. Bryant, appealed against his sentence of two years imprisonment for drug-related offences. The key legal issues before the Court of Appeal were whether the Judge erred in imposing imprisonment rather than a sentence of home detention, and whether the Judge should have further reduced the end sentence of imprisonment by taking into account the appellant's medical conditions.

The Court of Appeal held that the Judge did not err in imposing imprisonment rather than home detention. The Court emphasised that home detention is generally inappropriate for drug dealing offences, particularly when the offending has occurred from a home environment. The Court also held that the Judge correctly evaluated the appropriateness of a sentence of home detention by considering the relevant principles and purposes of sentencing. Furthermore, the Court found that the appellant's medical condition did not warrant a specific reduction in sentence length, as the medical report accepted that any medical problems could be managed by the Department of Corrections.

In conclusion, the Court of Appeal dismissed the appeal against sentence. The appellant's arguments regarding home detention and the consideration of his medical condition did not demonstrate any error of principle that would warrant appellate intervention. The sentence of two years imprisonment was upheld.

Orders