BThe appeal is allowed by reducing the sentence of five years and five months to five years and three months.
REASONS OF THE COURT
(Given by MacKenzie J)
[1] The appellant pleaded guilty to one count of possession of the class B controlled drug MDMA (Ecstasy) for supply and one representative count of selling MDMA. He was sentenced in the High Court at Christchurch by French J on 20 May 2010 to five years and five months imprisonment.[1] The appellant was subsequently sentenced in the District Court at Christchurch by Judge Moran on 8 June 2010 following trial on one count of possession of cannabis for sale. He was sentenced to an additional 12 months imprisonment, cumulative on the sentence imposed by French J. He appeals against those sentences.
[1] R v Keown HC Christchurch CRI-2010-409-56, 20 May 2010.
[2] An extension of time for appealing is needed. Counsel for the appellant appropriately waited until the District Court sentencing had taken place. The appeal was out of time so far as the High Court sentencing is concerned. In those circumstances an extension of time is appropriate, and is not opposed by counsel for the Crown. The time for appealing is extended accordingly.
[3] The MDMA offending came to light as the result of the Police investigation commenced in March 2008 into the distribution of Ecstasy between Auckland and Christchurch. In March 2008 the appellant and an associate had driven from Christchurch to Auckland and met with a man who Police alleged headed a large international drug syndicate supplying MDMA to New Zealand. The appellant again visited Auckland on 3 April 2008 and met with that same man. He had with him a bag containing $210,000 in cash which he exchanged for a bag containing 10,000 MDMA tablets. The appellant returned to Christchurch by air, while his associate drove back with the drugs in the car. Police seized the tablets when the car was on the Wellington to Picton ferry. On 15 April 2008 the appellant returned to Auckland and obtained a further 4,000 MDMA tablets. The charge of possession related to the tablets obtained on the 3 April visit, which were subsequently seized. The count of sale was a representative charge and alleged sales between 17 April 2008 and 22 July 2008.
[4] In sentencing the appellant, French J adopted a starting point of seven years. She did not make any uplift on account of the appellant’s previous convictions. She found two mitigating personal factors, namely the guilty plea and the fact that the appellant had been on electronically monitored bail (EM bail) for 12 months. She allowed a 20 per cent discount on account 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.
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Details
AGLC
Keown v R [2010] NZCA 492
Case
[2010] NZCA 492
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New Zealand was presented with an appeal by Dean McArthur Keown against his sentences imposed by the High Court and the District Court. Keown had pleaded guilty to possession of MDMA for supply and selling MDMA, and was sentenced to five years and five months imprisonment by the High Court. He was subsequently sentenced in the District Court to an additional 12 months imprisonment for possession of cannabis for sale. The appeal was against both sentences. The primary legal issue the Court had to decide was whether the appellant was given sufficient credit for the time spent on electronic monitoring bail (EM bail) during his sentencing. The Court considered the established principles that time spent on a restrictive bail regime may constitute a mitigating factor personal to an offender, which may need to be taken into account in the sentencing process. The Court concluded that the appellant's sentence was not manifestly excessive, but it was necessary to make an additional allowance for the correct duration of the EM bail period served. The Court allowed the appeal and reduced the sentence imposed by the High Court from five years and five months to five years and three months, while all other aspects of the sentences remained unchanged.