Evans v Police - [2020] NZHC 3161

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000344

[2020] NZHC 3161

BETWEEN
IAN EVANS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 December 2020

Counsel:

MN Pecotic for Appellant A Al-Janabi for Respondent

Judgment:

2 December 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 2 December 2020 at 10 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Manukau. MN Pecotic, Auckland.

EVANS v POLICE [2020] NZHC 3161 [2 December 2020]

The appeal

[1] Ian Evans pleaded guilty to two charges of possessing methamphetamine for supply (253.9 grams); possessing a stun gun; and possessing ammunition. Judge T V Clark imposed a term of four years and two months’ imprisonment, with a minimum period of half. Mr Evans appeals. He contends the Judge erred and a lesser sentence should be imposed. The Crown resists, citing among other things, Mr Evans’ history of like offending.

Background

[2] On 16 August 2017, Mr Evans and his teenage son went to an address in Papakura. Mr Evans knew the occupant, who opened the garage. Mr Evans got out of his car with a backpack. He left shortly thereafter. His son remained behind.

[3] Police followed Mr Evans and activated their lights. Mr Evans threw a stun gun out the window and stopped further down the road (at a second Police car). Inside his car, Police found a methamphetamine pipe and 122.1 grams of methamphetamine in a container hidden under the dashboard. Mr Evans’ DNA was later found on the container.

[4] In the backpack (at the Papakura address), Police found 131.8 grams of methamphetamine in a container; 28 rounds of .22 calibre ammunition; unused, resealable plastic bags; electronic scales; and a broken methamphetamine pipe.

[5] Mr Evans exercised his right to silence. He was promptly charged. Mr Evans pleaded guilty 1 November 2018. For reasons that need not detain us, sentencing was delayed until 9 July 2020.

[6] The Judge adopted a starting point of six years’ imprisonment for the methamphetamine offences. She added nine months for the other offending, then another nine months for Mr Evans’ record. The Judge deducted 25 percent for personal mitigating features, including methamphetamine dependency. The Judge deducted another 20 percent for the guilty pleas. As observed, this produced a four-year, two-month prison sentence. The Judge ordered Mr Evans serve at least half.

[7] Mr Evans filed an affidavit before sentencing in which he said, essentially, this. He went to the address to sell his car, driving there in a borrowed one. The occupant asked him to deliver drugs in return for methamphetamine or money. The occupant could not as he was serving a sentence of home detention. Mr Evans agreed. Mr Evans did not know the stun gun was in the car; he “panicked” and threw it out the window when he saw Police. The ammunition was Mr Evans’. The methamphetamine and drug-dealing paraphernalia were the occupant’s, albeit Mr Evans had agreed to act as…

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 Evans v Police

Details

AGLC: Evans v Police [2020] NZHC 3161
Case: [2020] NZHC 3161
Decision Date: 2 December 2020

CaseChat Overview and Summary

Ian Evans appeals against his four-year, two-month prison sentence for methamphetamine possession and supply, and possession of a stun gun and ammunition. Evans argues that the sentencing Judge erred in her calculation of the starting point for his methamphetamine offences, and in the addition of time for the other offences and his criminal record. He further contends that the Judge should have imposed a lesser minimum period of imprisonment, and that no minimum period should have been imposed at all. The Crown opposes the appeal on all grounds. The High Court found the appeal valid, and substituted a sentence of three years and eight months imprisonment.

The key legal issue before the Court was whether the Judge correctly calculated the starting point for Evans' methamphetamine offences. The Court considered whether the Judge should have adopted a starting point lower than six years' imprisonment, given the similarities between Evans' case and the facts in Su v R. The Court also considered whether the Judge correctly added nine months for the other offences and Evans' criminal record, and whether the Judge should have imposed a lesser minimum period of imprisonment. The Court found that the Judge should have adopted a starting point of five and a half years' imprisonment, and that the increase for the other offences and Evans' criminal record should have been limited to six months. The Court also found that a minimum period of imprisonment was open to the Judge, but that because Evans had already served the minimum period (and more), and the sentence was to be varied, the minimum period should be quashed.

The High Court allowed the appeal and substituted a sentence of three years and eight months imprisonment for Evans. The Court quashed the minimum period of imprisonment.

Orders