The applicant, Mr Knox, seeks leave to appeal to this Court against his sentence in the High Court of two years and three months’ imprisonment on four methamphetamine supply charges involving at least 26.45 grams.[1] Mr Knox had pleaded guilty to these charges in the District Court and was sentenced in that Court to 12 months’ home detention and 200 hours’ community work,[2] but an appeal by the

police to the High Court under s 115A of the Summary Proceedings Act 1957 was successful and resulted in the imposition of the sentence of imprisonment.[3]

[1]New Zealand Police v Knox [2013] NZHC 2760 [High Court sentencing decision].

[2]R v Knox DC Wellington CRI 2012-085-1444, 31 July 2013 [District Court sentencing decision].

[3]Section 115A of the Summary Proceedings Act 1957 was repealed on 1 July 2013, by s 7(2) of the Summary Proceedings Amendment Act (No 2) 2011. The provision is now reproduced in substantially the same terms as s 246 of the Criminal Procedure Act 2011. Although the District Court sentencing decision was given on 31 July 2013, s 397(1) and (2) of the Criminal Procedure Act provide for the proceeding to continue in accordance with the law as it stood before 1 July 2013.

Mr Knox is required to obtain special leave to appeal to this Court against the High Court sentence because his application to that Court for leave to appeal “on a question of law” under s 144(1) of the Summary Proceedings Act was declined on the grounds that none of the questions identified by Mr Knox were questions which, by reason of their general or public importance or for any other reason, ought to be submitted to this Court for decision under s 144(2) of the Summary Proceedings Act.[4]
[4]New Zealand Policev Knox [2013] NZHC 2828 [High Court leave decision].
Mr Knox seeks special leave to appeal on the following four questions:
(1)On an informant’s appeal against sentence was the [High] Court required to assess the adequacy of the sentence first by reference to the lowest available starting point and assess discounts applied in light of that starting point?
(2)If the sentencing Judge has applied a discount for a mitigating factor available in law and grounded on existing authority and within the sentencing discretion, was the Court entitled to extinguish the credit allowed on an informant’s appeal?
(3)In determining the notional end sentence for the purposes of s 15A of the Sentencing Act 2002, was the sentencing Judge entitled to make a discreet [sic] adjustment in the prison term to…

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 Knox v Police

Details

AGLC: Knox v Police [2014] NZCA 51
Case: [2014] NZCA 51
Decision Date: 6 March 2014 at 10.00 am

CaseChat Overview and Summary

Kerry Bruce Shane Knox sought leave to appeal against the two years and three months’ imprisonment sentence imposed on him by the High Court for methamphetamine supply. The initial sentence of 12 months’ home detention and 200 hours’ community work imposed by the District Court was appealed by the police to the High Court, which substituted a custodial sentence. Mr Knox’s application for leave to appeal to the Court of Appeal was dismissed. The key legal issues were whether the High Court was required to assess the adequacy of the sentence by reference to the lowest available starting point and whether the High Court was entitled to extinguish the credit allowed for certain mitigating factors. Additionally, the court had to determine if the High Court was entitled to make a discreet adjustment in the prison term to account for a cumulative community-based sentence and whether the facts that Mr Knox had spent approximately two months in custody and was subject to a cumulative sentence of community work and judicial monitoring were factors the High Court should have taken into account in determining whether the sentence imposed was clearly inadequate.

The Court of Appeal held that the questions posed by Mr Knox did not meet the criteria under s 144(2) of the Summary Proceedings Act. The Court noted that there was no authority requiring an appellate court to assess manifest inadequacy by reference to the range for the sentence starting point when that is not the issue on appeal. The Court also held that the Crown’s response in relation to the second question confused the application of credit within the sentencing discretion and the reduction of credit outside the sentencing discretion. In relation to the third and fourth questions, the Court held that they were not questions of law of general or public importance as the answers were in the Sentencing Act. The Court held that taking into account a potential community sentence before identifying an appropriate sentence was impermissible and pre-sentence detention could not be taken into account when setting the length of imprisonment. The Court concluded that the answers to the questions would have no practical effect on the end sentence correctly imposed by the High Court. Therefore, the application for special leave to appeal was dismissed.

The final orders of the Court were that the application for special leave to appeal is dismissed.

Orders