Jellyman v The Queen - [2010] NZCA 546

IN THE COURT OF APPEAL OF NEW ZEALAND
CA132/2010
[2010] NZCA 546

BETWEENESMOND MILES JELLYMAN

Appellant

ANDTHE QUEEN

Respondent

Hearing:22 November 2010

Court:Harrison, Ronald Young and Keane JJ
Counsel:C G Tuck for appellant

F Sinclair for respondent

Judgment:22 November 2010

ORAL JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]        Mr Esmond Jellyman was sentenced to a term of nine years’ imprisonment in the District Court at Tauranga on 16 December 2009[1] following his pleas of guilty to charges of supplying methamphetamine, possession of methamphetamine for supply, receiving, possessing explosives, unlawful possession of a firearm and money laundering. He does not appeal that sentence.
[1]      R v Jellyman DC Tauranga CRI-2008-070-5823, 16 December 2009.
[2]        Mr Jellyman was also sentenced to a minimum period of imprisonment of five years. He does not challenge the imposition of a minimum term as such but he appeals against its length.
[3]        The scope of Mr Jellyman’s appeal is narrow and fact specific, and does not raise any issue of principle. We are in a position to give judgment orally.
District Court
[4]        Mr Jellyman was 39 years of age at the time of sentencing. His offending covered an eight month period from November 2007 to July 2008. According to the sentencing Judge, Judge Rollo, Mr Jellyman was operating a methamphetamine supply operation in a large area of the North Island. The Judge was satisfied that in the period of offending Mr Jellyman made a profit of $130,000 from money laundering, with a further $375,000 owing to him from drug purchases at the time of his arrest.
[5]        Judge Rollo had given a sentencing indication on 6 November 2009. After receiving submissions from both counsel, he had indicated a starting point in the range of nine to 11 years’ imprisonment before personally aggravating or mitigating circumstances were taken into account. Consistently with that approach, the Judge adopted an actual starting point of 11 years following Mr Jellyman’s pleas before allowing a reduction for pleas of guilty and other mitigating factors. Mr Jellyman had a reasonably extensive list of previous convictions dating back to 1986 including a term of one year’s imprisonment imposed on conviction for cultivating cannabis in 2000.
[6]        Judge Rollo then considered the question of a minimum period of imprisonment. He took into account submissions made by both counsel and he concluded that a minimum term should be imposed given the seriousness of the offending and the requirement of deterrence. He imposed a minimum period of imprisonment of five years on the charges of supplying methamphetamine and possessing it for the purposes of supply.
Appeal
[7]        In support of Mr Jellyman’s appeal, Mr Tuck acknowledges that, in accordance with authority in this Court, minimum periods of imprisonment are frequently imposed on those sentenced to nine years’ imprisonment or more for methamphetamine dealing. He observes that a minimum term of five years’ imprisonment was 55.6 per cent of the finite sentence. He described this…

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 Jellyman v The Queen

Details

AGLC: Jellyman v The Queen [2010] NZCA 546
Case: [2010] NZCA 546
Decision Date: 22 November 2010

CaseChat Overview and Summary

Esmond Miles Jellyman was sentenced to a term of imprisonment for multiple criminal activities, including supplying and possessing methamphetamine for supply, receiving, possessing explosives, unlawful possession of a firearm, and money laundering. The District Court imposed a sentence of nine years, with a minimum non-parole period of five years. Jellyman appealed only the length of the minimum non-parole period. The Court of Appeal was tasked with determining whether the length of the minimum non-parole period was excessive or otherwise inappropriate.

The key legal issue before the Court of Appeal was whether the minimum non-parole period of five years was excessive or otherwise inappropriate. The court had to consider the statutory purposes of sentencing, the severity of the offending, the need for deterrence, and the mitigating factors presented. The court also had to determine whether the sentencing judge had appropriately balanced the aggravating and mitigating factors in setting the minimum non-parole period.

The Court of Appeal held that the sentencing judge was entitled to impose a minimum non-parole period if he considered that the finite sentence was insufficient for one or all of the four statutory purposes. The judge was satisfied that it was necessary to meet at least three of those purposes, particularly denunciation and deterrence. The court found that the judge had undertaken the necessary exercise of considering aggravating and mitigating features as part of fixing the finite sentence. While the judge did not make an express allowance for mitigating factors when imposing the minimum non-parole period, he had already taken those factors into account when fixing the finite sentence. The court concluded that, given the circumstances, the minimum non-parole period of five years was not excessive.

The Court of Appeal dismissed the appeal, finding that the minimum non-parole period imposed by the sentencing judge was not excessive or otherwise inappropriate.

Orders