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K AND THE KING

K AND THE KING

Case [2024] NZHC 2632 11 September 2024

Appeal

Sentencing

Manifestly Excessive Sentence

Time Spent on Electronic Monitoring Bail

Assistance to Authorities

Criminal Law

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ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-106 CRI-2024-409-107 CRI-2024-409-108

[2024] NZHC 2632

BETWEEN
K

Appellant

AND

THE KING

Respondent

Hearing: 11 September 2024

Appearances:

R J T George for Appellant G L Collett for Respondent

Judgment:

11 September 2024

ORAL JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

K v R [2024] NZHC 2632 [11 September 2024]

Introduction

[1] K pleaded guilty to offering to supply methamphetamine (representative);1 offering to supply cannabis;2 possession of methamphetamine for supply;3 possession of cannabis for supply;4 possession of a cannabis pipe,5 possession of a firearm;6 two charges of possessing ammunition;7 two charges of using a document for pecuniary advantage;8 and failing to comply with obligations under the Search and Surveillance Act 2012.9 On 27 March 2024 he was sentenced by Judge Gilbert to three years and six months’ imprisonment.

[2]K appeals his sentence. He says it was manifestly excessive.

The facts

[3] In April 2021, K made two purchases (valued at $100 in total) using a stolen debit card.

[4] The police executed a search warrant at K’s residence in August 2021. They found scales, small plastic bags, ‘tick lists’, and rounds of ammunition. K’s phones were seized and examined, and telco data revealed he had been supplying methamphetamine between January and August 2021. He had also offered to supply an ounce of cannabis. In total he had offered to supply or supplied approximately
26.5 grams of methamphetamine.

[5] In October 2022, police located at K’s address a homemade modified pistol, 127 rounds of .22 calibre ammunition, 3.7 grams of cannabis plant, a glass bong, and
8.85 grams of methamphetamine. Further, scales, two empty point bags, tick lists,

1      Misuse of Drugs Act 1975, s 6(1)(c) and 6(2)(a). Maximum penalty: life imprisonment.
2      Misuse of Drugs Act 1975, s 6(1)(e) and 6(2)(c). Maximum penalty: eight years’ imprisonment.
3      Misuse of Drugs Act 1985, s 6(1)(f) and 6(2). Maximum penalty: life imprisonment.
4      Misuse of Drugs Act 1975, s 6(1)(f) and 6(2)(c). Maximum penalty: eight years’ imprisonment.
5      Misuse of Drugs Act 1975, s 13(1)(a) and 13(3). Maximum penalty: one year’s imprisonment or a fine not exceeding $500.
6      Arms Act 1983, s 45(1). Maximum penalty: four years’ imprisonment or a fine not exceeding
$5,000.
7      Arms Act 1983, s 22B. Maximum penalty: a fine not exceeding $10,000.
8      Crimes Act 1961, s 228(1)(b). Maximum penalty: seven years’ imprisonment.
9      Search and Surveillance Act 2012, s 178. Maximum penalty: three months’ imprisonment.

$670 cash and a cannabis grinder were located. During the search, K failed to provide PIN codes for his cell phone and iPad.

Sentencing decision

[6] Judge Gilbert, in sentencing K, took a starting point of three years and six months’ imprisonment for…

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 K AND THE KING

Details

AGLC: K AND THE KING [2024] NZHC 2632
Case: [2024] NZHC 2632
Decision Date: 11 September 2024

CaseChat Overview and Summary

In the case of K v R, the appellant, K, appealed against his sentence for multiple drug and firearm-related charges, arguing that the sentence was manifestly excessive. The High Court of New Zealand, Christchurch Registry, presided over by Eaton J, considered the appeal. The key legal issues were whether the sentence imposed by the lower court was manifestly excessive and, if so, what the appropriate sentence should be.

The court noted that K had pleaded guilty to multiple charges, including offering to supply methamphetamine, offering to supply cannabis, possession of methamphetamine and cannabis for supply, possession of a cannabis pipe, possession of a firearm, possession of ammunition, and failing to comply with obligations under the Search and Surveillance Act 2012. The sentencing judge imposed a sentence of three years and six months' imprisonment, which K argued was manifestly excessive.

The court first addressed the issue of the time K spent on electronically monitored (EM) bail, noting a mathematical error in the sentencing judge's calculation. The court agreed that the sentence must be corrected to reflect the accurate number of days K spent on EM bail. After reviewing the evidence, the court concluded that a six-month deduction was appropriate to account for the time spent on EM bail. The court then considered the credit K should receive for his assistance to the authorities. While acknowledging that K had provided valuable information that led to the recovery of firearms and ammunition, the court determined that the level of credit for assistance should not exceed 20 per cent. This conclusion was reached considering the limited risk K faced from the information he provided and the value of the information compared to cases where higher discounts were awarded.

Taking into account the corrections for the time spent on EM bail and the credit for assistance to authorities, the court determined that the appropriate sentence should be two years and three months' imprisonment. The court also granted a permanent order for the suppression of K's name due to the real risk to his safety arising from the information he provided to the authorities.

Orders