Glassie v R - [2022] NZCA 556

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA88/2022
[2022] NZCA 556

BETWEEN	MARK TUMU GLASSIE Appellant
AND	THE KING Respondent

CA201/2022
BETWEEN	JAMES PATRICK DUFF Appellant
AND	THE KING Respondent

Hearing:	28 September 2022
Court:	Miller, Brewer and Moore JJ
Counsel:	M J Taylor-Cyphers and G D Burns for Appellant (CA88/2022) S L McColgan for Appellant (CA201/2022) A L McConachy for Respondent
Judgment:	16 November 2022 at 2.00 pm

JUDGMENT OF THE COURT

A The appeal in CA201/2022 is allowed.
BThe sentence of 15 years’ imprisonment is quashed and substituted with a sentence of 14 years, two months’ imprisonment.
C The appeal in CA88/2022 is allowed.
DThe sentence of seven years’ imprisonment is quashed and substituted with a sentence of six years, two months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

These appeals are brought against the sentences imposed on James Duff and Mark Glassie for their roles in a substantial drug dealing operation. They were respectively the President and Vice President of the Central Chapter of the Rebels Outlaw Motorcycle Gang at the time. Mr Duff was sentenced to 15 years’ imprisonment,[1] and Mr Glassie to seven years.[2]

The offending

[1]R v Duff [2022] NZDC 5098 [Sentencing notes of Mr Duff].

[2]R v Glassie [2022] NZDC 2232 [Sentencing notes of Mr Glassie].

Operation Ulysses was an investigation into the supply of methamphetamine by the gang in the Bay of Plenty region. It ran from 3 July to 4 October 2019. The operation led to 100 charges being laid against 12 defendants.
The drug dealing charges against the two appellants related to methamphetamine, cannabis, LSD and MDMA. A second group of charges involved crimes against the administration of justice, and a third involved crimes of violence or, in Mr Duff’s case, unlawful possession of a pistol and conspiracy to access a computer system.
The two appellants were sentenced separately by Judge Hollister-Jones, Mr Duff on 24 March 2022 and Mr Glassie on 11 February 2022, but the summaries of fact which they accepted were relevantly identical. We deal with the two appeals in parallel for that reason and because the Judge’s methodology and elements of his sentence calculations are in issue in both appeals for similar reasons.

The appellants’ roles

Mr Duff

The quantity of drugs dealt could not be known, but it was common ground at sentencing that Mr Duff was involved in supplying approximately three kilograms of methamphetamine and 22 pounds of cannabis.[3]
[3]Sentencing notes of Mr Duff, above n 1, at [17]–[18].
It was also common ground that he had a leading role in the business. Judge Hollister-Jones considered his role to be essentially that of a “working CEO of a medium-sized methamphetamine and other drug distribution business”.[4] The Judge accepted that as President, Mr Duff established and maintained the commercial purpose of the operation, negotiated the purchase of bulk quantities of methamphetamine, and established supply networks. He was also involved in personally supplying…

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 Glassie v R

Details

AGLC: Glassie v The The King [2022] NZCA 556
Case: [2022] NZCA 556
Decision Date: 16 November 2022

CaseChat Overview and Summary

This appeal concerns the sentences imposed on James Duff and Mark Glassie for their roles in a drug dealing operation. Both appellants were members of the Rebels Outlaw Motorcycle Gang, Duff as President and Glassie as Vice President. They were convicted of drug dealing charges and crimes against the administration of justice. The Court of Appeal allowed both appeals and reduced the sentences by approximately one year each. The Court found that the starting points adopted by the sentencing judge were appropriate but that the discounts for rehabilitation were too low. The Court increased the discount for Duff from five per cent to 10 per cent, and for Glassie from seven and a half per cent to 10 per cent. The Court also found that the sentencing judge was wrong to decline a discount for time spent on electronic monitoring bail. The effective sentences are now 14 years, two months for Duff and six years, two months for Glassie.

Orders