Heenan v Police - [2013] NZHC 2186

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-231 [2013] NZHC 2186

BETWEEN MALCOLM HEENAN Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 August 2013

Counsel:

JE Boyack and JR Calder-Watson for Appellant
E Rutherford for Respondent

Judgment:

27 August 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 27 August 2013 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: JE Boyack (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

HEENAN v POLICE [2013] NZHC 2186 [27 August 2013]

Introduction

[1] The appellant appeals his sentence of nine months’ imprisonment imposed on him in the District Court at Auckland on 2 August 2013 by Judge R Collins. The charge was possession of cannabis for the purpose of supply.

[2] The gravamen of the appellant’s case is that nine months’ imprisonment in the circumstances is manifestly excessive. In the appellant’s submission, the end sentence should have been no more than five months’ imprisonment.

[3] An appeal against sentence proceeds as a rehearing. That does not mean that I re-sentence the appellant. It does mean that I have to reach my own view as to whether the sentence handed down by the District Court Judge was within the range available to him. For this case, it is only if I conclude that the sentence imposed was clearly excessive that I will be justified in intervening.

[4] The pathway by which the District Court Judge reached his sentence can be useful for analysis, but it is the end result which must be assessed.

The District Court Judge’s decision

[5] A plea of guilty had been entered and the District Court Judge proceeded on the summary of facts. This set out at the beginning that during the execution of a search warrant, approximately 30 grams of cannabis plant material was located at an address in Glen Innes. The occupants of the address were charged subsequently with possession for supply of cannabis plant. This was irrelevant to the charge against the appellant.

[6] Six days later, however, the appellant was seen outside the same address approaching a number of vehicles parked nearby. The appellant offered to sell the occupants “tinnies” containing cannabis plant material for $20 each. He was found to have nine “tinnies” on him when he was apprehended. He admitted trying to sell the cannabis to make money.

[7] The Judge noted that the appellant was now 22 years of age.1 He had a relatively lengthy list of previous convictions. He had experienced a range of sentences, including community detention. The Judge said:2

... You have breached bail conditions on a number of occasions and you have failed to report on a number of occasions. The most recent, as far as I was concerned, was when I had prepared for your sentencing on 10 July and you did not appear and I issued a warrant for your arrest. You were arrested. Another Judge on 11 July re-admitted you to bail but you breached your…

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: [2013] NZHC 2186
Decision Date: 27 August 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Malcolm Heenan appealed his sentence of nine months’ imprisonment, imposed by the District Court at Auckland for possession of cannabis for the purpose of supply. The central issue was whether the sentence was manifestly excessive. The court had to decide if the District Court Judge correctly set the starting point for the sentence and whether the sentence was within the appropriate range given the circumstances. The court examined the District Court Judge’s reasoning, including the setting of a starting point within the range provided by R v Terewi, and whether the appellant's youth and lack of prior drug convictions warranted a discount.

The High Court found that the District Court Judge correctly applied R v Terewi principles and set an appropriate starting point, adjusting it to fit within the summary jurisdiction's maximum penalty. The court rejected the argument that the sentence was manifestly excessive, noting the appellant's extensive criminal history, the commercial nature of the offence, and the appropriate discount given for the plea of guilty. The High Court concluded that the sentence fell within the acceptable range and dismissed the appeal.

Orders