Kelly v The the Queen - [2022] NZHC 1298

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2022-406-0000004

[2022] NZHC 1298

BETWEEN
BEVAN JOHN KELLY

Appellant

AND

THE QUEEN

Respondent

Hearing: 25 May 2022

Counsel:

S A Saunderson-Warner for Appellant J M Webber for Respondent

Judgment:

3 June 2022

JUDGMENT OF SIMON FRANCE J

[1] Mr Kelly appeals a sentence of four years and six months’ imprisonment imposed for a number of drug offences and related offending.1 The grounds of appeal are that the starting point was too high, insufficient credit was given for addiction issues and background/cultural matters, and there should have been a credit for time spent on EM bail.

Facts

[2]The facts are taken from an agreed summary of facts.

[3] The defendant both sold directly to users, and supplied street-level dealers. The period covered by the Police operation was seven months. In that time the identifiable quantity of methamphetamine daily was 147 grams. The summary of facts also states:

1 R v Kelly [2022] NZDC 2720.

KELLY v R [2022] NZHC 1298 [3 June 2022]

There were numerous other offers and supplies in relation to which the quantity is not known.

[4] The charges also include dealing in cannabis (100 grams) and possession of a firearm, namely a Norinco firearm which is similar in appearance to an AK47 assault rifle.

[5] Concerning the method of dealing, the primary contact with purchasers was by phone calls, text and Facebook, using code. The property where Mr Kelly was residing had five cameras to provide full coverage.

[6]Other matters recorded in the summary of facts include:

(a)Mr Kelly said he got back into dealing to protect his brother’s life. This was a proposition he repeated to a psychologist, saying that his brother had a drug debt.

(b)Somewhat inconsistently, the brother and Mr Kelly’s daughter are described as being “drawn into” the defendant’s offending due to familial connection. It may be that prior to this the brother was only a user. The summary expressly states his daughter had not been a user, and the Court is advised she was sentenced on the basis she was pulled into the offending by Mr Kelly.

(c)The summary further states “[t]here was a definite element of commerciality”. The defendant was supplying to at least 20 customers. Sixty-four deposits totalling $42,164 went into Mr Kelly’s account.

(d)The summary commences by detailing a chronology of release from prison and reoffending. It seems Mr Kelly was released in 2013 from a dealing sentence and commenced offending while on parole. This led to conviction and further imprisonment in February 2014. He was released in early 2016. He visited Blenheim with approval in September 2017, but remained in breach of his parole until it ended in

December 2017. The offending covered by these charges starts in December 2017 and overlapping with the end of the previous sentence.

Sentencing

[7] It was common ground the case fell within Zhang v R band two.2 That has a range of two…

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 Kelly v The the Queen

Details

AGLC: Kelly v The the Queen [2022] NZHC 1298
Case: [2022] NZHC 1298
Decision Date: 3 June 2022

CaseChat Overview and Summary

Bevan John Kelly appeals a sentence of four years and six months’ imprisonment imposed for drug offences and related offending. The appellant contends that the starting point was too high, insufficient credit was given for addiction issues and background/cultural matters, and there should have been a credit for time spent on EM bail. The Court addressed each of the grounds of appeal in turn. It found that the starting point of six years for the totality of the drug offending was within the range established by the Court of Appeal. The uplifts were considered generous to the appellant. The discounts for addiction and upbringing were at the lower end of the available range but not wrong. The Court considered that the judge was correct not to give credit for time spent on EM bail given the relatively short length of time on bail and the warning as to the importance of compliance. The final sentence was within range and accordingly the appeal was dismissed.

The High Court found that the sentence imposed by the sentencing judge was within the appropriate range and did not err in its assessment of the starting point, uplifts, discounts, and refusal to give credit for time spent on EM bail. The Court considered the appellant's disadvantaged upbringing and addiction issues but found that these did not warrant a lower sentence given the severity and commercial nature of the offending. The Court found that the sentence reflected the seriousness of the offending and achieved the purposes of denunciation and deterrence. The appeal was therefore dismissed.

Orders