Horsfall v R - [2012] NZCA 97

IN THE COURT OF APPEAL OF NEW ZEALAND

CA667/2011
[2012] NZCA 97

BETWEEN MUCKUNDA HORSFALL
Appellant

AND THE QUEEN
Respondent

Hearing: 12 March 2012

Court: Stevens, Chisholm and Heath JJ

Counsel: B J Hart for Appellant
K Raftery for Respondent

Judgment: 19 March 2012 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

The appellant, Mr Horsfall, pleaded guilty on the first day of trial to charges of manufacturing and supplying the Class A controlled drug methamphetamine. He was sentenced by Judge Perkins in the District Court to two years and six months imprisonment.[1] The appellant appeals against that sentence on the basis that it is manifestly excessive.

Factual background

[1]R v Horsfall DC Auckland CRI-2010-404-94, 4 October 2011.

The appellant belonged to a small group whose members have been charged with a number of methamphetamine-related offences, laid following a police investigation known as Operation Heller in late 2008. The charges against the appellant relate to one particular “cook” between 13 and 25 November 2008.
The appellant’s role involved assisting in the manufacture of methamphetamine by supplying pseudoephedrine that was used to manufacture two ounces of methamphetamine. The appellant then delivered the final product to Mr Hunter, who was at a higher level in the methamphetamine manufacturing operation.[2] The appellant had contacted Mr Hunter immediately following his release from prison and became involved in assisting him.

Sentencing

[2]Mr Hunter was sentenced to six years imprisonment: R v Hunter DC Auckland CRI‑2010‑404‑94, 31 August 2011.

Judge Perkins first conducted a disputed facts hearing to determine two issues. One related to the truth of the appellant’s contention that the primary offender, Mr Hunter, exerted an “evil control” over him because of a debt allegedly owed to Mr Hunter by the appellant’s partner. The Judge rejected this claim. The second disputed fact was the quantity of methamphetamine manufactured. The Judge found that two ounces (approximately 56 grams) was manufactured and supplied.
The Judge considered the nature of the offending as well as all aggravating and mitigating factors before setting a “starting point” of three years imprisonment. He adopted the same starting point as he had for another member of the group, Mr Butt.[3] The Judge noted that the Crown accepted that the appellant’s role was as a party to manufacture. He then considered the appellant’s personal circumstances, which included strong support from his partner and her family. The Judge stated that he had not been able to identify in the relevant documents any expression of remorse. Finally, the Judge noted that, while a starting point of four to five years imprisonment would be “in keeping with the tariff authority”,[4] he preferred to adopt a starting point that was consistent with the sentence given to Mr Butt, a co-offender. Therefore a starting point of three years was adopted. From this starting point, the Judge allowed a discount of 15 per cent for the guilty plea. An overall sentence of two years,…

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 Horsfall v R

Details

AGLC: Horsfall v R [2012] NZCA 97
Case: [2012] NZCA 97
Decision Date: 19 March 2012

CaseChat Overview and Summary

In Horsfall v R, the appellant, Muckunda Horsfall, appealed against his sentence of two years and six months imprisonment for manufacturing and supplying methamphetamine. Horsfall pleaded guilty to the charges and was sentenced by Judge Perkins in the District Court. The appeal was heard by Stevens, Chisholm, and Heath JJ in the Court of Appeal of New Zealand. The appellant argued that the sentence was manifestly excessive due to inadequate credit for his rehabilitation efforts, remorse, and the failure to consider home detention as an alternative. The Crown submitted that the sentence was appropriate given the nature of the offence and the need for denunciation and deterrence.

The court found that the starting point of three years imprisonment was lenient, especially when considering the appellant's role in manufacturing and supplying methamphetamine to a major drug dealer. The court also found that the discount of 15% for the guilty pleas was generous, given that the pleas were entered on the first day of trial. Regarding the appellant's remorse and rehabilitation efforts, the court held that any adjustment for these factors would have been small and would not have led to a materially different sentence. The court concluded that the final sentence of two years and six months imprisonment was lenient, and no lower figure could be justified. The appeal was dismissed.

This case highlights the importance of considering the nature of the offence and the need for denunciation and deterrence when sentencing for serious drug-related offences. Personal factors such as rehabilitation and remorse will generally carry lesser weight in these cases.

Orders