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Duncan v The Queen

Duncan v The Queen

Case [2018] NZCA 108 20 April 2018

Mens Rea & Intention

Breach of Contract

Unconscionable Conduct

Contempt of Court

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA378/2017
[2018] NZCA 108

BETWEEN	ANDREW DUNCAN Appellant
AND	THE QUEEN Respondent

Hearing:	8 March 2018
Court:	Clifford, Simon France and Whata JJ
Counsel:	E A Hall and J R Spelman for Appellant P D Marshall for Respondent
Judgment:	20 April 2018 at 4 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

Mr Duncan was found guilty of possession of a Class A controlled drug, methamphetamine, for supply. He was sentenced to three and a half years’ imprisonment.[1] This is an appeal against conviction and sentence. In relation to the conviction, the two main grounds are:
(a)the Judge failed to properly direct the jury regarding the elements of the offence that they needed to be satisfied of to establish whether the possession was “for supply”; and
(b)the Crown should not have invited the jury to conclude that Mr Martin’s evidence should be disregarded when they did not put critical criticisms to Mr Martin for comment.
[1]R v Duncan [2017] NZDC 13620.
In relation to sentence, it is submitted:
(a)the Judge erred in failing to adequately consider the impact of the purity issue on the available starting point; and
(b)the uplift for previous convictions and offending while on release conditions was too high, and there should have been a discount for mitigating factors.

Background

The background can be stated shortly. Mr Duncan was driving home when intercepted by police. A search of his vehicle located a grey bag which contained $3,000 in cash and two black boxes. Inside one of the black boxes was an electronic set of scales, a spoon, some broken glass and two plastic zip-lock bags containing crystals. In the second black box, the police located 12 empty “point bags”, 13 small plastic zip-lock bags and two glass pipes. Mr Duncan’s DNA was found on the scales and his phone was found next to the bag. It is not disputed that methamphetamine was found in the form of crystals, with a combined weight of nine grams.
Mr Duncan was found guilty and sentenced to three and half years’ imprisonment, comprising a start point of three years and three months, an uplift of nine months for recent prior offending and offending while on release conditions, and a discount of six months for time spent on EM bail. No discount was applied for personal factors. The Judge acknowledged Mr Duncan had started to do some good things upon his release from prison, but noted at the same time he was reverting back to serious drug offending.

The defence case

The defence case was that methamphetamine that had been found in the bag belonged to Mr Duncan’s associate, Mr Martin, and that Mr Duncan had no knowledge of it being in the van. Mr Martin gave evidence the bag was his, that he had borrowed Mr Duncan’s van and left the bag…

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 Duncan v The Queen

Details

AGLC: Duncan v The Queen [2018] NZCA 108
Case: [2018] NZCA 108
Decision Date: 20 April 2018 at 4 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Andrew Duncan appealed against his conviction and sentence for possession of a Class A controlled drug, methamphetamine, for supply. The appellant was sentenced to three and a half years’ imprisonment. The appeal against conviction and sentence hinged on two main grounds. The first ground was that the Judge failed to properly direct the jury regarding the elements of the offence they needed to be satisfied of to establish whether the possession was “for supply.” The second ground was that the Crown should not have invited the jury to conclude that Mr Martin’s evidence should be disregarded when they did not put critical criticisms to Mr Martin for comment. In relation to the sentence, it was submitted that the Judge erred in failing to adequately consider the impact of the purity issue on the available starting point, and that the uplift for previous convictions and offending while on release conditions was too high, and there should have been a discount for mitigating factors.

The court found that possession “for supply” was effectively admitted by the defence. It was noted that the sole issue left with the jury to determine was whether the defendant knew about the methamphetamine. The Crown closed on the same basis, and counsel conceded that possession for supply did not need to be proven. The court was satisfied there was no scope for the jury to be in doubt as to the issue of supply. The court also found that the omission to cross-examine Mr Martin about his knowledge of the $3,000 did not raise any real scope for doubt, as the Crown case was compelling. The court found that the purity of the methamphetamine was not in issue, as there was cogent evidence to support the conclusion that it was market grade quality P. The court also found that the uplift for prior offending was not out of range, and that a discount for mitigating factors was not warranted, as the appellant had reverted to serious drug offending while on release conditions. The appeal against conviction and sentence was therefore dismissed.

Orders