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Giles v R

Giles v R

Case [2020] NZHC 2372 11 September 2020

Appeal

Sentencing

Credit for Mitigating Factors

Cumulativity of Sentences

Totality Principle

Guilty Plea Discount

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2020-442-000008

CRI-2020-442-000009 [2020] NZHC 2372

DONALD STEVEN GILES

v

THE QUEEN

Hearing: 9 September 2020

Appearances:

A J D Bamford for the Appellant J M Webber for the Respondent

Judgment:

11 September 2020

JUDGMENT OF COOKE J

[1] Mr Giles pleaded guilty to 15 charges of offering to supply methamphetamine1 and seven charges of breaching a protection order.2 On 9 June 2020 he was sentenced in the Nelson District Court to two years, ten months’ imprisonment.3

[2] Mr Giles appeals his sentence on the grounds the starting point was too high, the Judge ought to have discounted for totality when imposing the sentence for two sets of offending on a cumulative basis, he should have been afforded at greater credit

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2), maximum penalty life imprisonment.
2      Domestic Violence Act 1995, ss 19(1)(d), 49(1)(b) and 49(3), maximum penalty three years’ imprisonment.
3      R v Giles [2020] NZDC 10520.

GILES v R [2020] NZHC 2372 [11 September 2020]

for personal mitigating factors, and that the guilty plea discount should have been greater and calculated using the approach set out in Moses v R.4

Factual background

[3] There are two sets of offending — those relating to the supply of methamphetamine, and those relating to breaches of a protection order in relation to Mr Giles partner.

Methamphetamine charges

[4] During a police investigation into methamphetamine dealing in the Nelson region a production order was executed in relation to Mr Giles’ phone number. Phone data and messages revealed Mr Giles was in regular contact with a group of four associates in relation to methamphetamine dealing. The charges arise from 15 different occasions where Mr Giles sent or received texts related to methamphetamine dealing between 6 December 2016 and 19 April 2017:

(a)On 10 January 2017 Mr Giles exchanged texts with an associate consistent with the other party seeking half a gram of methamphetamine from him for cash.

(b)On 14 February 2017 Mr Giles exchanged texts with an associate consistent with the other party seeking half a gram of methamphetamine from him for $500. The following day there was a further text exchange between the pair consistent with Mr Giles offering to supply one gram of methamphetamine.

(c)On 16 February 2017 Mr Giles exchanged texts with an associate offering to supply them with an undetermined amount of methamphetamine. The same associate contacted him again on 1 March requesting a further indeterminate quantity of methamphetamine and again on 3 March requesting a quarter gram of methamphetamine.

4 Moses v R [2020] NZCA 296.

(d)On 3 March 2017 Mr Giles exchanged texts with an associate, discussing a price for a quarter gram of methamphetamine.

(e)On 13 March 2017 Mr Giles exchanged texts from an associate arranging to meet up to supply multiple amounts of methamphetamine.

(f)On 19 March 2017 an associate sent texts to Mr Giles seeking the supply…

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 Giles v R

Details

AGLC: Giles v R [2020] NZHC 2372
Case: [2020] NZHC 2372
Decision Date: 11 September 2020

CaseChat Overview and Summary

The appellant, Mr Giles, appealed against his sentence for methamphetamine dealing and breaches of a protection order. The Nelson District Court imposed a sentence of two years, ten months’ imprisonment, to be served consecutively. Mr Giles argued the sentence was excessive due to errors in the starting point, the totality adjustment, and the guilty plea discount. The High Court allowed the appeal and substituted a sentence of two years, four months’ imprisonment. The starting point for the methamphetamine dealing was appropriate, though the sentence should have been reduced by 25% to account for personal mitigating factors. The District Court Judge should have considered a totality reduction, but it was not necessary. The guilty plea discount was appropriately applied at 15% for the protection order offending, and 10% for the methamphetamine dealing, based on the differing timelines of the offending.

Orders