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Duthie v The King

Duthie v The King

Case [2023] NZCA 312 24 July 2023

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA687/2022
[2023] NZCA 312

BETWEEN	RICHARD ALAN DUTHIE Appellant
AND	THE KING Respondent

Hearing:	10 May 2023
Court:	Mallon, Moore and Fitzgerald JJ
Counsel:	J W Wall for Appellant H D L Steele for Respondent
Judgment:	24 July 2023 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of four years and nine months’ imprisonment imposed in the High Court is quashed and substituted with a sentence of three years and nine months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Fitzgerald J)

Introduction

Richard Duthie pleaded guilty in the High Court at Hamilton to three charges relating to methamphetamine offending.[1] He was subsequently sentenced by Wylie J to four years and nine months’ imprisonment.[2]
[1]One charge of manufacturing methamphetamine, s 6(1)(b) and (2)(a) of the Misuse of Drugs Act 1975, maximum penalty of life imprisonment; one charge of possession of methamphetamine for the purpose of supply, s 6(1)(f) and (2)(a) of the Misuse of Drugs Act, maximum penalty of life imprisonment; and one charge of possession of equipment capable of being used in the manufacture of methamphetamine, s 12A(2)(a) and (3)(b) of the Misuse of Drugs Act, maximum penalty five years’ imprisonment.
[2]R v Duthie [2022] NZHC 3023 [Sentencing notes].
Mr Duthie now appeals against his sentence on the basis that:[3]
(a)the combined starting point adopted by the Judge of 10 years’ imprisonment was too high, given the limited evidence as to Mr Duthie’s role in the offending; and
(b)the discounts applied for mitigating factors, namely a 20 per cent discount for guilty pleas, a 15 per cent discount for cultural factors, and a 25 per cent discount to reflect an instrument forfeiture order, were too low.
[3]A further ground of appeal, that the Judge had made a mathematical error in applying the percentage discounts to the starting point, was not pursued.
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.[4] The focus is not on the process by which the sentence was reached, but on whether the end result is manifestly excessive.[5]

Background facts

[4]Criminal Procedure Act 2011, s 250(2) and (3).

[5]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].

The basis upon which Mr Duthie was sentenced was set out in an agreed summary of facts put before the Judge.
The charges against Mr Duthie followed an investigation by the Waikato Police into the large-scale manufacture and distribution of methamphetamine in the Waikato area. The investigation uncovered a core group of people involved in a criminal enterprise for that purpose — Mr Duthie was identified as having an association with a member of this group.
Following the execution of a search warrant at Mr Duthie’s Lichfield property…

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 Duthie v The King

Details

AGLC: Duthie v The King [2023] NZCA 312
Case: [2023] NZCA 312
Decision Date: 24 July 2023 at 10 am

CaseChat Overview and Summary

Richard Duthie appeals against the sentence of four years and nine months’ imprisonment imposed in the High Court. Duthie was found guilty of three methamphetamine-related charges and argues that his sentence was too severe. He claims that the starting point for his sentence was too high and that the discounts for his guilty pleas, personal background, and instrument forfeiture order were too low. The appeal court considers whether the starting point and the discounts were appropriate.

The appeal court finds that the starting point of 10 years’ imprisonment was not outside the range available to the Judge, though it was towards the upper end of that range. The court does not consider that the Judge erred in characterising Duthie’s role or in uplifting the starting point to reflect the remaining charges. The court agrees with the Crown that the Judge’s discount of 20 per cent for Duthie’s guilty pleas was appropriate, and arguably generous. The court also agrees with the Judge that the 15 per cent discount for Duthie’s personal background and addiction was appropriate. However, the court considers that the discount of 25 per cent for the instrument forfeiture order was too low. The court finds that a discount of 35 per cent is appropriate to reflect the forfeiture order. Applying the appropriate discounts, the starting point of 10 years’ imprisonment reduces to an end sentence of three years and nine months’ imprisonment.

The appeal is allowed. The sentence of four years and nine months’ imprisonment imposed in the High Court is quashed and substituted with a sentence of three years and nine months’ imprisonment.

Orders