Grootjans v Police - [2019] NZHC 2183

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-000064 [2019] NZHC 2183

BETWEEN
KAINGA JACKSON GROOTJANS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 August 2019

Appearances:

E Reilly on behalf of A Schulze for the Appellant G Banuelos for the Respondent

Judgment:

3 September 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 3 September 2019 at 11.00 am

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Lance Lawson, Rotorua Gordon Pilditch, Rotorua

GROOTJANS v POLICE [2019] NZHC 2183 [3 September 2019]

[1]This is an appeal against sentence.

[2] On 24 June 2019, Judge Snell in the District Court at Rotorua sentenced Mr Grootjans appellant on the following charges, to which he had pleaded guilty:

(a)Possession of cannabis for supply and two charges of possession of utensils.1 These charges involved 643 grams of cannabis, some in one-ounce plastic ziplock bags and the rest loose, a box of unused bags and a large set of scales.

(b)Possession of methamphetamine.2 This involved a wallet containing
1.88 grams.

(c)Possession of cannabis.3 This involved 27 grams of cannabis.

(d)Two x thefts (under $500).4 These both related to failing to pay for petrol that Mr Grootjans had put into his vehicle.

(e)Two x failure to answer District Court bail.5

(f)Breach of release conditions.6

(g)Breach of community work.7

[3] The end sentence was two years and six months’ imprisonment. The Judge reached that sentence by fixing a starting point of two years and six months’ imprisonment for the charge of possession of cannabis for supply. He then uplifted

1      Misuse of Drugs Act 1975, s 6(1)(c) and s 13(1)(a).     Maximum penalty is eight years’ imprisonment and one year’s imprisonment or a fine not exceeding $500 respectively.
2      Misuse of Drugs Act 1975, s 7(1)(a). Maximum penalty is six months’ imprisonment or a fine not exceeding $1,000.
3      Misuse of Drugs Act 1975, s 7(1)(a). Maximum penalty is three months’ imprisonment or a fine not exceeding $500.
4      Crimes Act 1961, ss 219 and 223(d). Maximum penalty is three months’ imprisonment.
5      Bail Act 2000, s 38(b). Maximum penalty is one year’s imprisonment.
6      Sentencing Act 2002, s 96(1). Maximum penalty is one year’s imprisonment or a fine not exceeding $2,000.
7      Sentencing Act 2002, s 71(1)(a). Maximum penalty is three months’ imprisonment or a fine not exceeding $1,000.

the starting point by six months for all of the remaining charges. He then uplifted further by four months for the breach of release conditions and the fact some of the offending occurred while on bail, and was similar to that for which he was originally sentenced. He then declined to give a discount for mitigating factors, particularly alleged remorse, and finally allowed a discount of 25 per cent for the guilty pleas, although they had come well after the laying of the charges.

[4] A sentencing appeal is by way of rehearing. The Court is guided by the sentencing Judge’s reasoning, but must make its own decision.…

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 Grootjans v Police

Details

AGLC: Grootjans v Police [2019] NZHC 2183
Case: [2019] NZHC 2183
Decision Date: 3 September 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Kainga Jackson Grootjans appealed against his sentence imposed by Judge Snell in the Rotorua District Court. Grootjans had been sentenced to two years and six months' imprisonment for multiple offences, including possession of cannabis for supply, methamphetamine, and cannabis, as well as theft and breaches of bail and release conditions. The central issue in the appeal was whether the sentence imposed by the District Court was manifestly excessive. Grootjans argued that the starting point, the uplift for additional convictions, the uplift for breaches of bail and release conditions, and the failure to give a discount for mitigating factors were all excessive. The respondent maintained that there was no error in the sentence and that the overall sentence was not manifestly excessive.

The court considered the starting point for possession of cannabis for supply, which Grootjans argued should have been at the lowest end of the range. However, the court found that the starting point was within the appropriate range, even if on the higher side. The court also found that the uplift for the additional convictions and the breaches of bail and release conditions were not objectionable. Finally, the court held that it was within the sentencing Judge's discretion to decline to give a discount for mitigating factors such as remorse, and the court could not say that the Judge was wrong in declining to do so.

The court dismissed the appeal, noting that while the sentence was stern, it was not manifestly excessive in the absence of demonstrated error. The court expressed hope that Grootjans would perform well in his rehabilitation programme and be released on parole at an early opportunity, provided he made positive changes in his life.

Orders