Goldsbury v The Queen - [2015] NZCA 174

IN THE COURT OF APPEAL OF NEW ZEALAND

CA655/2014
[2015] NZCA 174

BETWEEN	KARL RODNEY GOLDSBURY Appellant
AND	THE QUEEN Respondent

CA179/2015
BETWEEN	DAVID RYAN CARROLL Appellant
AND	THE QUEEN Respondent

Hearing:	12 May 2015
Court:	Randerson, Courtney and Kós JJ
Counsel:	P G Mabey QC for Appellant Goldsbury W T Nabney for Appellant Carroll B F Fenton for Respondent
Judgment:	15 May 2015 at 2:30pm

JUDGMENT OF THE COURT

AAn extension of time to appeal in CA179/2015 is granted.
BThe appeals by Mr Goldsbury and Mr Carroll against sentence are both dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellants along with two others were tried in the High Court at Rotorua before Keane J and a jury on an indictment alleging methamphetamine-related offences.
The principal charge was one of conspiracy to manufacture methamphetamine at Katikati between 7 and 9 December 2012. Both appellants were found guilty of that charge along with two others (Mr Jones and Ms Farrow). In addition, Mr Goldsbury was convicted on one count of supplying methamphetamine, two counts of supply or possession of precursor substances (hypophosphorous acid and iodine), and one count of attempting to pervert the course of justice. He was acquitted of three other charges.
Mr Goldsbury was sentenced to a total of ten and a half years imprisonment with a five year minimum period.[1] On this appeal against sentence, he challenges the eight year starting point Keane J adopted on the conspiracy charge. He also challenges the imposition of the minimum period of imprisonment.
[1]R v Goldsbury [2014] NZHC 2577.
Mr Carroll was sentenced to three years and three months imprisonment from a starting point of three and a half years.[2] His appeal against sentence is advanced solely on the footing that if there is a reduction in Mr Goldsbury’s sentence, then his should be reduced correspondingly.
[2]R v Carroll [2014] NZHC 2563.
In sentencing Mr Goldsbury, Keane J found that the equipment and materials in his possession suggested that he must have been capable of manufacturing methamphetamine on a scale likely to yield at least 250 grams of methamphetamine. This placed Mr Goldsbury’s offending towards the top of band 2 in terms of the tariff judgment of this Court in the R v Fatu.[3] The Judge could not be satisfied to the criminal standard that the yield was sufficient to place the offending within band 3.
[3]R v Fatu [2006] 2 NZLR 72 (CA) at [34].
The sole ground of Mr Goldsbury’s sentence appeal is that there was insufficient evidence to support the Judge’s finding as to the likely yield and the sentence was manifestly excessive in consequence.

The Judge’s approach to sentencing

The Judge began by outlining the offences for which Mr Goldsbury was convicted in these terms:
[2] First, you are for sentence for an offence on 19 September 2012 at Pokeno. You then supplied some Asian males from Auckland with one litre of hypophosphorous acid, which is…

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.

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Details

Case: [2015] NZCA 174
Decision Date: 15 May 2015

CaseChat Overview and Summary

The appellants, Karl Rodney Goldsbury and David Ryan Carroll, appealed against their sentences in the High Court at Rotorua. Both were found guilty of conspiracy to manufacture methamphetamine at Katikati between 7 and 9 December 2012. Goldsbury was also convicted of supplying methamphetamine, supplying or possessing precursor substances, and attempting to pervert the course of justice. He was sentenced to ten and a half years imprisonment with a five year minimum period. Carroll was sentenced to three years and three months imprisonment. Goldsbury challenged the eight-year starting point and the imposition of the minimum period of imprisonment. Carroll’s appeal was based on the premise that if Goldsbury’s sentence was reduced, his should be reduced correspondingly. The central legal issue was whether there was sufficient evidence to support the Judge's finding as to the likely yield of methamphetamine, and if the sentence was manifestly excessive as a consequence.

The Court found that the Judge had thoroughly considered all relevant evidence and that his conclusions were amply justified. The equipment and materials found in Goldsbury’s possession suggested that he was capable of manufacturing methamphetamine on a scale likely to yield at least 250 grams. The Court distinguished this case from the earlier decision in Te Rure, as the evidence in Goldsbury's case was more definitive regarding the scale of manufacturing. The Court concluded that the Judge’s findings were entirely supportable and appropriately conservative. Goldsbury's appeal against sentence was dismissed. Carroll's appeal was also dismissed, as it was contingent on the outcome of Goldsbury's appeal.

The Court granted an extension of time for Carroll's appeal, which was filed out of time. The appeals by both Goldsbury and Carroll against their sentences were dismissed.

Orders