Constable v Police - [2014] NZHC 2940

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-000031 [2014] NZHC 2940

JERARD VERNON CONSTABLE Appellant

v

POLICE Respondent

Hearing: 24 November 2014 (via AVL)

Counsel:

J A Westgate for Appellant
R D Smith for Respondent

Judgment:

24 November 2014

JUDGMENT OF WHATA J

[1] Mr Constable pleaded guilty to three charges, namely one of supplying the Class A drug methamphetamine, secondly supplying the precursor substance hydrochloric acid, and thirdly a charge of dangerous driving. Judge Crosbie sentenced him to an end sentence of two years and nine months, comprising a starting point of two years nine months for the lead offence together with a nine
month uplift for the separate precursor offending.1 He was also convicted and

discharged on the dangerous driving charge, but as that is not appealed it is of no further relevance here. A 15% discount was (purportedly) taken into account
resulting in the end sentence just mentioned.2

1 R v Constable DC Christchurch CRI-2014-012-561, 18 August 2014.
2 It is to be observed that in fact a 15% discount off three years six months would result in an end sentence of two years 11 months.

CONSTABLE v POLICE [2014] NZHC 2940 [24 November 2014]

[2] Mr Constable appeals from that sentence. He had received a sentencing indication based on 11 grams of methamphetamine of two years nine months. He said that as the disputed fact hearing resolved that he was supplying only five to six grams, the final sentence should have been less.

Background

[3] There is no undue complexity to the background. Mr Constable pleaded guilty to a charge of supplying methamphetamine but challenged the summary of facts. It was alleged that he had supplied 11 grams of methamphetamine. It transpires that the Court resolved that in fact he had supplied approximately five to six grams of methamphetamine. The Judge in a reasonably thorough canvas of the
facts and law, including the guideline case of R v Fatu,3 determined that the proper

starting point was two years nine months, together with an uplift of nine months for the separate precursor offending. A 15% discount was then purportedly applied with the resultant sentence of two years nine months.

[4] The previous November, Judge Crosbie had given a sentencing indication, again applying the lead guideline decision of Fatu. He was then dealing with a summary of facts alleging that Mr Constable had purchased some 11 grams and was expecting a further two grams but it was intercepted by the police. The Judge also
referred to three High Court authorities including Wire v Police,4 R v

MacPherson5and R v Dunn6 and one Court of Appeal authority, namely R v Byford.7

He gave an indication of between two years nine months and three years.

[5] The key part of the sentencing indication reads:

[17] The totality principle is of course at play and on the other charge, which is not an insignificant charge in itself, while starting points for…

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 Constable v Police

Details

AGLC: Constable v Police [2014] NZHC 2940
Case: [2014] NZHC 2940
Decision Date: 24 November 2014

CaseChat Overview and Summary

In this case, Jerard Vernon Constable appeals against his sentence imposed by Judge Crosbie. Mr. Constable was convicted of supplying methamphetamine, supplying hydrochloric acid, and dangerous driving. The dangerous driving charge is not relevant to this appeal. The court sentenced Mr. Constable to an end sentence of two years and nine months, which was calculated by applying a 15% discount to a starting point of two years and nine months for the lead offence, plus a nine-month uplift for the precursor substance. The appeal focuses on the sentence for the methamphetamine supply charge. Mr. Constable argues that the final sentence should have been less because the disputed fact hearing determined that he supplied only five to six grams of methamphetamine, rather than the 11 grams alleged.

The key legal issue before the court was whether the sentence imposed by Judge Crosbie was manifestly excessive, wrong in principle, or flawed on its face. The court noted that there was no obvious error in the Judge's formulation of the sentence. The starting point adopted by the Judge was well within the guideline range provided by the precedent case of Fatu for upper Band 1, lower Band 2 offending. Given the guideline judgment, it was difficult to conclude that the starting point adopted was manifestly excessive. Additionally, the court found that Mr. Constable was not entitled to a full discount on sentencing, as he did not accept the sentencing indication and did not plead guilty until some months after the sentencing indication was given.

The High Court found that there was no serious challenge to the sentence imposed, as the starting point was well within the sentencing bands provided by the guidelines. The court dismissed the appeal and upheld the sentence imposed by Judge Crosbie.

Orders