Legal Research
Cases
Crutchley v R

Crutchley v R

Case [2015] NZCA 473 6 October 2015

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA128/2015
[2015] NZCA 473

BETWEEN	CALVIN GRANT CRUTCHLEY Appellant
AND	THE QUEEN Respondent

Hearing:	24 September 2015
Court:	Harrison, Dobson and Gilbert JJ
Counsel:	R E Webby for Appellant M D Downs for Respondent
Judgment:	6 October 2015 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence of five years’ imprisonment is quashed. On the charge of possession of cannabis for supply, a sentence of four years’ imprisonment is substituted. On the charge of unlawful possession of a firearm, a concurrent sentence of 12 months’ imprisonment is substituted.
CThe sentence of five years’ imprisonment for possession of utensils is quashed. A sentence of three months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Introduction

Mr Crutchley was found guilty at trial on a charge of possession of cannabis for supply, with various quantities packaged in 32 and 10 gram bags, plus in greater bulk, totalling almost one kilogram.
A cut down .22 calibre rifle was also found, and Mr Crutchley was convicted of being unlawfully in possession of a pistol, which is how the weapon was classified. Mr Crutchley was also found in possession of more than $11,000 in cash, and electronic scales were located in the vicinity of the cannabis. However, Mr Crutchley was found not guilty on a further charge of supplying cannabis.

The District Court sentence

On 20 February 2015, Mr Crutchley was sentenced to five years’ imprisonment on the conviction for possession of cannabis for supply, with a concurrent sentence of three years’ imprisonment on his conviction for possession of the pistol.[1] Mr Crutchley appealed against those sentences on the basis that they were manifestly excessive.
[1]R v Crutchley [2015] NZDC 2667.
A co-offender, Mr Elder, had earlier pleaded guilty to, and been sentenced on, charges of possession of cannabis for supply, sale of cannabis and possession of a pistol.[2] On the basis that he had spent three months in custody on the charges he faced, he was sentenced by Judge Field to 18 months’ intensive supervision and 200 hours of community work.
[2]R v Elder DC Auckland CRI-2014-070-602, 9 April 2014.
On sentencing Mr Crutchley, Judge Ingram treated the offending as somewhere between category two and category three of the categories set out in the guideline judgment in R v Terewi.[3] The Judge identified a starting point for the possession for supply offence at a minimum of three years’ imprisonment.
[3]R v Terewi [1999] 3 NZLR 62 (CA).
On the basis that concurrent sentences would be imposed, the Judge considered a minimum uplift of 12 months would be justified for the conviction for unlawful possession of the pistol.
The Judge reviewed Mr Crutchley’s relevant prior convictions in some detail. These included 17 convictions for offences under the Misuse of Drugs Act 1975 and four convictions for offences under the Arms Act 1983. The Judge treated it as:[4]
… a pretty impressive record for being…

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 Crutchley v R

Details

AGLC: Crutchley v R [2015] NZCA 473
Case: [2015] NZCA 473
Decision Date: 6 October 2015 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Calvin Grant Crutchley, the appellant, appealed against the sentence imposed by the District Court, arguing it was manifestly excessive. The respondent was the Crown, represented by M D Downs. The appeal was heard by Harrison, Dobson, and Gilbert JJ, and judgment was delivered on 6 October 2015. The central legal issue was whether the sentence of five years’ imprisonment, imposed on Crutchley for possession of cannabis for supply and unlawful possession of a firearm, was manifestly excessive.

The Court of Appeal considered whether the sentence imposed was manifestly excessive by examining the starting point, uplift for the firearms conviction, and uplift for prior convictions. The Crown argued that a starting point of between two and a half years and three years was appropriate for the cannabis possession for supply charge, given the commercial element inferred from the evidence. The Court of Appeal agreed that a starting point of two and a half years would have been adequate, as the offending was at the lower end of category two, with no indication of particularly sophisticated or large-scale commerciality.

Regarding the uplift for the firearms conviction, the Crown submitted that an uplift of between 12 and 18 months was justified due to the seriousness of the combination of drug dealing and possession of a cut-down firearm. However, the Court of Appeal found that an uplift of six months was more appropriate, bringing the starting point to three years, which reflected the totality of the offending. The Court of Appeal also examined the uplift for prior convictions, which was 25 per cent of the combined starting point of three years. Although the Court of Appeal acknowledged that the pattern of Crutchley’s prior offending involving drugs and firearms justified an uplift, it found that a 25 per cent uplift was not excessive. The Court of Appeal concluded that the total sentence imposed of five years was manifestly excessive.

The Court of Appeal allowed the appeal, quashed the sentence of five years’ imprisonment, and substituted sentences of four years’ imprisonment for possession of cannabis for supply and 12 months’ imprisonment for unlawful possession of a firearm, to be served concurrently. The Court of Appeal also quashed the sentence of five years’ imprisonment for possession of utensils and substituted a concurrent sentence of three months’ imprisonment.

Orders