Jacobson v R - [2023] NZHC 1358

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI 2023-488-28

[2023] NZHC 1358

BETWEEN
SHARMA SAILI JACOBSON

Appellant

AND

THE CROWN

Respondent

Hearing: 25 May 2023

Appearances:

M J Taylor-Cyphers for the appellant

R Annandale and P Hamber for the Crown

Judgment:

31 May 2023

JUDGMENT OF CAMPBELL J

[Appeal against Sentence]

This judgment was delivered by me on 31 May 2023at 4.00 pm

Registrar/Deputy Registrar

JACOBSON v THE CROWN [2023] NZHC 1358 [31 May 2023]

Background

[1] Mr Jacobson pleaded guilty to 17 charges, being possession and supply of cannabis, ecstasy and LSD, possession of firearms and ammunition and a failure to carry out obligations in relation to a computer search. On 7 December 2022, Judge G Tomlinson sentenced him to three years and eight months’ imprisonment.1

[2] Mr Jacobson appeals. He says the Judge erred by adopting a starting point that was too high (because of a failure to consider totality) and by allowing inadequate discounts from the starting point. He says the end sentence should have been two years and four months’ imprisonment.

The offending

[3] Mr Jacobson dealt in class A, B and C drugs (respectively LSD, MDMA (ecstasy) and cannabis) from March to July 2021. Police executed a search warrant at his home in Parahaki, Whangarei, on 2 August 2021. There, Mr Jacobson was in possession of LSD, ecstasy and cannabis. Later that day, Police executed a search warrant at a storage locker in Onerahi, Whangarei, where they found firearms and ammunition.

[4]More specifically, Mr Jacobson:

(a)was in possession of 70 tabs of LSD, supplied 73 tabs on 11 occasions and offered to supply 60 tabs on ten other occasions;

(b)supplied, offered to supply or was in possession of a total of 27 grams of ecstasy;

(c)supplied, offered to supply or was in possession of a total of about 10 kilograms of cannabis; and

(d)unlawfully possessed two rifles, 273 rounds of ammunition and a prohibited magazine.

1 R v Jacobson [2022] NZDC 26111.

District Court sentencing

[5] Judge Tomlinson recorded that both Crown and defence agreed that he should reach a starting point for each set of offending, add those starting points together, reach a final point and then apply reductions as appropriate.2

[6] The Judge took a starting point of three years for the LSD offending, two years and six months for the ecstasy offending and three years for the cannabis offending.3 As I explain below, these starting points were on a standalone basis for each set of drug offending. The Judge then applied an uplift of six months for the firearms and ammunition offending. This, the Judge said, took him to a high point of nine years.4

[7] The Judge then turned to discounts. He considered a 20 per cent reduction for Mr Jacobson’s guilty pleas was appropriate.5 He applied a combined reduction of 25 per cent for Mr Jacobson’s relative youth, lack of prior convictions and previous good character and high prospects of…

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 Jacobson v R

Details

AGLC: Jacobson v R [2023] NZHC 1358
Case: [2023] NZHC 1358
Decision Date: 31 May 2023

CaseChat Overview and Summary

Sharma Saili Jacobson, the appellant, has appealed against the sentence imposed by Judge G Tomlinson in the Whangarei District Court. The appellant pleaded guilty to 17 charges, including possession and supply of class A, B and C drugs, possession of firearms and ammunition, and a failure to carry out obligations in relation to a computer search. The District Court sentenced the appellant to three years and eight months’ imprisonment. The appellant contends that the Judge erred by adopting an overall starting point that was too high and by making inadequate discounts from the starting point. The appellant submits that the end sentence should have been two years and four months’ imprisonment. The legal issues before the Court were whether the Judge erred by adopting an overall starting point that was too high and whether the Judge erred by making inadequate allowance for personal mitigating factors. The Court found that the Judge erred by adopting an overall starting point that was too high and did not consider totality at the appropriate stage. The Court also found that the Judge did not err in making an inadequate allowance for personal mitigating factors. The Court considered an appropriate overall starting point for the drug offending was five and a half years’ imprisonment, and six years’ imprisonment overall. The Court found that the Judge’s 25 per cent allowance for all mitigating factors was appropriate. However, the Court found that the Judge made an excessively generous allowance of 15 months for the time the appellant had spent on electronically monitored bail. The Court found that an allowance of seven and a half months was appropriate. The Court substituted the sentence of three years and eight months’ imprisonment with a sentence of two years and eight months’ imprisonment.

Orders