Haarhaus v R - [2010] NZCA 41

IN THE COURT OF APPEAL OF NEW ZEALAND
CA516/2009
[2010] NZCA 41
BETWEENROBERT BENJAMIN HAARHAUS

Appellant

ANDTHE QUEEN

Respondent

Hearing:16 February 2010

Court:William Young P, Wild and Heath JJ
Counsel:C B Wilkinson-Smith for Appellant

M D Downs for Respondent

Judgment:1 March 2010 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
The appeal
[1] Following a disputed fact hearing, after pleas of guilty had been entered by Mr Haarhaus to serious drug charges, Stevens J sentenced him to a term of imprisonment of 12 years, with a minimum non-parole period of six years.[1]
[1]R v Haarhaus CRI-2007-004-18646, 24 July 2009.
[2] Mr Haarhaus appeals against the sentence imposed. His appeal is based on two grounds, namely that:
(a)Stevens J was wrong to find that the quantity of methamphetamine acquired by Mr Haarhaus was, at least, 700 grams (the quantity point); and
(b)Stevens J erred in finding that methamphetamine supplied by Mr Haarhaus to others was pure methamphetamine (the purity point).

[3]        On the quantity point, Mr Wilkinson-Smith, for Mr Haarhaus, does not contend that there was insufficient evidence on which Stevens J could base his finding. Rather, he submits that, as a matter of process, it was a conclusion to which the Judge was not entitled to come. Mr Wilkinson-Smith’s submission is based on the notion that the Judge was not entitled to find a quantity of supply beyond that apparently accepted by the Crown, in closing submissions, at the disputed fact hearing.
[4]        The purity point involves consideration of the way in which the Crown ought to allege and prove purity, for the purposes of a sentencing hearing on methamphetamine offences, in accordance with the guideline judgment in R v Fatu.[2]
Competing submissions
[2]R v Fatu [2006] 2 NZLR 72 (CA).
[5]        Mr Downs, for the Crown, submitted that the Judge was not bound by the Crown’s apparent position on the quantity point at the conclusion of the disputed fact hearing. He submitted that, whatever view was taken by the Crown, it remained the responsibility of the sentencing Judge to reach his own conclusion.[3]
[3]See R v Mako [2000] 2 NZLR 170 (CA) at [15]-[17]; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 (CA) at 606 per Kirby P and Sheller JA; and Geoffrey Hall Hall’s Sentencing (looseleaf ed, lexisnexis) at [SA24.8(d)].
[6]        On the purity point, Mr Downs contended that there was an evidential foundation on which the Judge was entitled to act in finding (implicitly) that the methamphetamine supplied by Mr Haarhaus to others was, at least, 60 per cent pure. The reference to 60 per cent purity comes from R v Fatu, in the context of what “the market would regard as P [ie, pure methamphetamine]”.[4] Fatu is concerned with sentencing levels for offences involving pure methamphetamine.
Facts
[4]At [30].
[7]        We base our summary of the facts on the sentencing remarks of Stevens J which incorporated findings…

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 Haarhaus v R

Details

AGLC: Haarhaus v R [2010] NZCA 41
Case: [2010] NZCA 41
Decision Date: 1 March 2010

CaseChat Overview and Summary

Haarhaus appeals against his conviction and sentence for serious drug charges, arguing that Stevens J erred in finding that he acquired at least 700 grams of methamphetamine and supplied pure methamphetamine. The appeal was heard by the New Zealand Court of Appeal. Stevens J had sentenced Haarhaus to a term of imprisonment of 12 years, with a minimum non-parole period of six years. The appeal is based on two grounds: the quantity point and the purity point. On the quantity point, Haarhaus argues that the Judge was not entitled to find a quantity of supply beyond that apparently accepted by the Crown in closing submissions. On the purity point, Haarhaus contends that there was no evidential foundation on which the Judge was entitled to act in finding that the methamphetamine supplied by him to others was, at least, 60 per cent pure. The Court of Appeal found that the Judge properly exercised his judicial function by determining the quantity based on the evidence heard and that it was open to the Judge to sentence on the basis that Haarhaus was dealing in pure methamphetamine, as described in R v Fatu. The appeal was dismissed.

Orders