Dalwood v The the King - [2022] NZHC 2683

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-34

CRI-2022-412-35 [2022] NZHC 2683

BETWEEN
JASON CHARLES DALWOOD

Appellant

AND

THE KING

Respondent

Hearing: 17 October 2022

Appearances:

S A Saunderson-Warner for Appellant R D Smith for Respondent

Judgment:

17 October 2022

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 17 October 2022 at 3.00 pm

Registrar/Deputy Registrar Date:

DALWOOD v R [2022] NZHC 2683 [17 October 2022]

Introduction

[1] The appellant, Jason Charles Dalwood, appeals against a sentence of two years three months’ imprisonment imposed in the District Court on 1 June 2022 having pleaded guilty to two charges of offering to supply methamphetamine1 and two charges of breaching intensive supervision.2

[2]Mr Dalwood submits the sentence imposed was manifestly excessive because:

(a)the starting point adopted for the charges of offering to supply methamphetamine was too high; and

(b)the uplift for the fact of offending while subject to a sentence of intensive supervision and the charges of breaching intensive supervision was too high.

[3] The respondent submits that both the starting point and uplifts were within the available range and that the Judge made no error.

Approach on appeal

[4] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 A Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2): maximum penalty life imprisonment.
2      Sentencing Act 2002, s 70(A)(a): maximum penalty six months’ imprisonment or $1500 fine.
3      Criminal Procedure Act 2011, ss 250(2) and 250(3).
4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5      Ripia v R [2011] NZCA 101 at [15].

The facts of the offending

[5] Mr Dalwood pleaded guilty on the basis of a summary of facts that stated that during October 2021 he had offered to supply methamphetamine to about 16 people. Those offers included points, quarter grams, half grams and whole grams of methamphetamine. During the period 1 October 2021 to 31 October 2021 Mr Dalwood offered to supply 28.9 grams of methamphetamine, with a street value (between) $23,000 and $29,000.

[6] On 1 November 2021 Mr Dalwood was a passenger in a motor vehicle on Tahuna Road. As police approached the vehicle Mr Dalwood attempted to conceal something down his trousers. A search was invoked and police found a methamphetamine pipe down Mr Dalwood’s trousers.

[7] During a search of…

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.

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Details

Case: [2022] NZHC 2683
Decision Date: 17 October 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Jason Charles Dalwood, appealed a sentence of two years and three months' imprisonment imposed by the District Court for offering to supply methamphetamine and breaching intensive supervision. The primary legal issues were whether the starting point for the charges and the uplift for the breaches were within the appropriate range and if the sentence was manifestly excessive. The Court examined relevant cases and principles to determine if the Judge's decision was within the acceptable range and if the sentence was justified by the relevant sentencing principles.

The Court found that the starting point and uplifts were within the appropriate range, and the credits for mitigating factors were generous. The Court concluded that the Judge did not make any error and the sentence imposed was not manifestly excessive given the circumstances of the offending and Dalwood's background.

As a result, the appeal was dismissed. The final order was that the appeal against the sentence imposed by the District Court is dismissed.

Orders