Evans v Police - [2014] NZHC 2612

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-38 [2014] NZHC 2612

BETWEEN
TANE HARE EVANS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 October 2014

Appearances:

C Muston for Appellant
MB Smith for Respondent

Judgment:

23 October 2014

ORAL JUDGMENT OF TOOGOOD J

EVANS v NEW ZEALAND POLICE [2014] NZHC 2612 [23 October 2014]

[1] Tane Hare Evans appeals against a sentence of 22 months’ imprisonment imposed on him by Judge Greg Davis following a guilty plea to one charge of attempting to manufacture methamphetamine.1 The maximum penalty for the
offence is 10 years’ imprisonment.2

Facts

[2] The appellant’s involvement in the manufacture of methamphetamine came to light on 29 January 2014, when police were alerted to an explosion and a fire at a rural address in Pakotai. Mr Evans and another man, Arthur Cornelius, received serious injuries in the explosion of a clandestine methamphetamine laboratory in a shed and both were transported to hospital. Mr Evans was treated for extensive burns to his hands, arms and face but Mr Cornelius died of his injuries the next day.

[3] The shed was totally destroyed in the fire but based on the remains of the equipment that the police could retrieve from the scene, they determined this was a large laboratory capable of producing large quantities of methamphetamine. However, the actual quantity of methamphetamine being produced at the time of the explosion was unable to be determined.

[4] The police summary of facts stated a police officer’s belief that Mr Cornelius

was the primary offender and that the appellant was an assistant.

Sentence in the District Court

[5] In sentencing the appellant, Judge Davis considered that the main purposes and principles of sentencing to be taken into account were those of holding the appellant accountable, denouncing and deterring his conduct and protecting the public. The Judge took a starting point of two years six months’ imprisonment,
relying on the tariff case of R v Fatu.3 Despite the fact that the precise quantity of

1      Police v Evans DC Kaikohe CRI-2014-027-584, 22 August 2014.
2      Misuse of Drugs Act 1975, s 6(1)(b); Crimes Act 1961, ss 72 and 311.
3      R v Fatu [2006] 2 NZLR 72 (CA).

methamphetamine being produced could not be established, the Judge was satisfied from the extent of the operation that the appellant must have been involved with producing methamphetamine in commercial quantities. The Judge accepted that Mr Cornelius was the principal offender but he treated the appellant’s claims to have been involved only in a very limited capacity with some suspicion. Accordingly, the Judge found that the appellant should be sentenced in accordance with Band 2 of
Fatu, halved because the charge was only for an attempt to manufacture.4 The Judge

said that this recognised the scale of the operation and the fact the production of drugs appeared to have been well under way, given there was an explosion.

[6] In considering the personal circumstances of the appellant, the Judge acknowledged he…

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 [2014] NZHC 2612
Case: [2014] NZHC 2612
Decision Date: 23 October 2014

CaseChat Overview and Summary

Tane Hare Evans appealed against a sentence of 22 months’ imprisonment imposed by Judge Greg Davis after he pleaded guilty to attempting to manufacture methamphetamine. The maximum penalty for the offence is 10 years’ imprisonment. Evans and another man, Arthur Cornelius, were seriously injured in an explosion at a clandestine methamphetamine laboratory. Cornelius died of his injuries the next day. Police concluded that the explosion occurred at a large laboratory capable of producing large quantities of methamphetamine. The quantity of methamphetamine being produced at the time of the explosion could not be determined.

The legal issues the court was required to decide included whether the appellant was suitable for a sentence of home detention rather than imprisonment and whether the sentence imposed by the District Court was an error. The court considered whether the appellant was suitable for a sentence of home detention and whether the sentence imposed by the District Court was an error. The court held that the Judge was entitled to conclude that there was nothing remarkable justifying a sentence of home detention. The court found that the important purpose of denunciation and deterrence in this case could not be achieved by anything less than imprisonment.

The court dismissed the appeal. The appellant’s involvement in the manufacture of methamphetamine was serious, and the court needed to send a message to the public that those who chose to engage in this sort of activity must be prepared to go to prison for it. Although another judge may have come to a different view in the case of this appellant, the court could not say that Judge Davis made an error in refusing to sentence the appellant to home detention.

Orders