Hoy v The Queen

[2014] NZCA 472

IN THE COURT OF APPEAL OF NEW ZEALAND

CA76/2014
[2014] NZCA 472

BETWEEN	MORGAN NICK HOY Appellant
AND	THE QUEEN Respondent

Hearing:	24 September 2014
Court:	Harrison, Goddard and Venning JJ
Counsel:	L P F Lafferty for Appellant S K Barr for Respondent
Judgment:	26 September 2014 at 10.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Harrison J)

1. Morgan Hoy was found guilty along with others following a trial in the Wellington District Court on 11 counts relating to the supply of methamphetamine over a two week period in early 2012 – in particular, one of conspiring to supply, seven of offering to supply and three of possession for supply.  Mr Hoy was convicted and sentenced by the trial Judge, Judge Treston, to three years imprisonment.[1]  He now applies for an extension of time to appeal his sentence but not his conviction.  The Crown does not oppose his application which we grant.

   [1]Police v Hoy DC Wellington CRI-2012-085-6837, 6 December 2013.

2. The ground of Mr Hoy’s appeal is that the sentence is manifestly excessive because in fixing the starting point of three years imprisonment (which was also the end sentence) the Judge failed to correctly assess the level of Mr Hoy’s commercial involvement, assumed offending beyond the scope of the charges and did not correctly reflect Mr Hoy’s liability compared to his co-offenders whose culpability was more serious. 

3. The Crown case against Mr Hoy and his co-offenders was based primarily upon evidence of text messages intercepted during a covert investigation into the methamphetamine dealing activities of a syndicate headed by Mr Hoy’s co‑offenders.  Mr Hoy was identified through his own intercepted communications (about 1,000) with other syndicate members.  Judge Treston had the distinct advantage of having heard all the evidence at trial.  The Judge was satisfied that Mr Hoy was a significant participant in the syndicate’s commercial activities; and that he had actually been supplied about two grams of methamphetamine by the syndicate head during the relevant period.  On this factual basis, and after taking account of the relevant sentencing principles, the Judge fixed a starting point of three years. 

4. Mr Lafferty properly conceded before us that Mr Hoy’s offending fell within the sentencing band of a starting point of two to four years imprisonment fixed in R v Fatu for methamphetamine offending on this scale.[2]  He was unable to identify any error by the Judge in adopting a starting point in the middle range of that band.  We are independently satisfied that a starting point of three years imprisonment was open to the Judge; and we are not satisfied, having regard to the sentences imposed on his co-offenders, that the Judge erred in imposing an end sentence of three years imprisonment on Mr Hoy.

   [2]R v Fatu [2006] 2 NZLR 72 (CA) at [34](a).

5. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent