Greacen v The Queen - [2016] NZHC 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000197 [2016] NZHC 2015

BETWEEN
WADE GREACEN

Appellant

AND

THE QUEEN Respondent

Hearing: 22 August 2016

Appearances:

Ron Mansfield for the Appellant
David Wiseman for the Respondent

Judgment:

29 August 2016

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 29 August 2016 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

GREACEN v THE QUEEN [2016] NZHC 2015 [29 August 2016]

Introduction

[1] Following a sentencing indication Mr Greacen, the appellant, pleaded guilty. The Judge who gave the indication noted the final sentence would either be imprisonment or, if the pre-sentence report was sufficiently favourable, home detention. A pre-sentence report was ordered.

[2] Two months later Mr Greacen appeared for sentence. While a pre-sentence report had been prepared it did not include home detention appendices as directed by the Court. This was not due to any fault on the part of the appellant.

[3] At sentencing, counsel for Mr Greacen, Mr Mansfield, applied for a one week adjournment to enable the Department of Corrections (“Corrections”) to examine the appropriateness and availability of home detention and to prepare a home detention appendix. The application was not opposed by the Police. However, the Judge refused the adjournment and proceeded to sentence Mr Greacen to a term of imprisonment of two years and three months.

[4] He now appeals that sentence. He asks that it be quashed and that he be re-sentenced in this Court or, alternatively, the matter be remitted back to the District Court for re-sentencing.

Background facts

[5] The background facts can be stated quite simply. The charge arose from a police operation which targeted a female associate of the appellant’s known as Tuk.

[6] On 15 July 2015 Mr Greacen was a passenger in Tuk’s car. Intercepted private communications led the Police to believe that Tuk was acquiring methamphetamine for Mr Greacen. Tuk’s car was followed and the Police saw her enter a residential address. Mr Greacen remained outside in the car. Tuk returned to the car and drove Mr Greacen to the downtown ferry terminal where he boarded a ferry to Waiheke.

[7] When the ferry arrived at the Matiatia Wharf Mr Greacen was stopped by the Police. He was searched and found to be in possession of 19.7 grams of methamphetamine.

[8] He maintained the drug was for his personal use and for the personal use of others on the island who had contributed to its purchase. He said he bought large quantities of methamphetamine because he was employed and to avoid more frequent trips back to the city.

[9] After his arrest Mr Greacen moved back to Auckland city and then to Otorohanga where his parents live. This was for the purpose of completing a drug rehabilitation programme.

[10] Pending sentence Mr Greacen was enrolled in the Waitakere Bridge Rehabilitation Programme where he regularly attended meetings while waiting for placement on the intensive treatment…

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 Greacen v The Queen

Details

AGLC: Greacen v The Queen [2016] NZHC 2015
Case: [2016] NZHC 2015
Decision Date: 29 August 2016

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard an appeal by Wade Greacen against his sentence. Greacen was found guilty of drug possession and was initially given a sentencing indication of either imprisonment or, if the pre-sentence report was favourable, home detention. A pre-sentence report was ordered, but it did not include the necessary home detention appendices. Greacen's counsel applied for an adjournment to allow for the preparation of these appendices, but the Judge refused and sentenced Greacen to two years and three months of imprisonment. Greacen now appeals the sentence, asking for it to be quashed and for him to be re-sentenced either in the High Court or in the District Court.

The court had to decide whether there was an error in the sentence imposed on conviction and if a different sentence should be imposed. Greacen's counsel argued that the Judge should have adjourned the hearing to allow for a complete pre-sentence report to be provided. The court agreed that the Judge should not have proceeded to sentence without a complete pre-sentence report, as required by section 26A of the Sentencing Act 2002. The court also had to decide if a different sentence should be imposed. Greacen's counsel submitted that a sentence reduction of at least five months should have been applied, considering Greacen's personal mitigating circumstances, including his efforts at rehabilitation, personal circumstances, and supportive family. The Crown's counsel agreed that a further discount might be appropriate, considering the new material not available at the original sentencing.

The court found that there was an error in the sentence imposed on conviction, as the Judge should not have proceeded to sentence without a complete pre-sentence report. The court also found that a different sentence should be imposed, as the full extent of Greacen's rehabilitative efforts may not have been apparent to the Judge at the original sentencing. The court allowed the appeal and directed a pre-sentence report containing home detention appendices to be prepared. The court decided that the District Court, which originally sentenced Greacen, was best placed to re-sentence him. The appeal was allowed, and the matter was remitted back to the District Court for re-sentencing.

Orders