Malcolm Albert Spark v The Queen

IN THE SUPREME COURT OF NEW ZEALAND
SC 104/2009
[2009] NZSC 133
GLEN THOMAS DOUGLAS GOLLOP
v
THE QUEEN
Court:Elias CJ, Tipping and Wilson JJ
Counsel:P T R Heaslip for Applicant
B D Tantrum for Crown

Judgment:17 December 2009

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
REASONS
[1]       Having been found guilty of drug related offending, the applicant was sentenced by Winkelmann J to 12 years imprisonment, with a minimum of six years to be served. He appealed unsuccessfully to the Court of Appeal[1] against his conviction and sentence. The applicant now seeks leave to appeal to this Court on two grounds, first that there was an insufficient evidential basis to establish what was found to be the scale of his offending and secondly because, contrary to the requirement of s 30 of the Sentencing Act 2002, he was not represented by counsel when the minimum term of imprisonment was imposed.
[1]      R v Rhodes [2009] NZCA 486.
[2]       Winkelmann J was fully entitled to conclude, from the evidence which had been given at trial (where the applicant did not give or call evidence), that the scale of the applicant’s offending was at the level she found. The second proposed ground has even less merit. As the sentencing notes of Winkelmann J make clear, the Judge heard and had regard to submissions from counsel for the applicant as to whether a minimum term should be imposed.
[3]       No question of general or public importance arises for consideration by this Court. There is no appearance of any substantial miscarriage of justice. The application must therefore be dismissed.
Solicitors:
Crown Law, Wellington

CaseChat Overview and Summary

Malcolm Albert Spark sought leave to appeal against his conviction and sentence for drug-related offences. Spark was sentenced to 12 years imprisonment, with a minimum of six years to be served. He appealed his conviction and sentence to the Court of Appeal but was unsuccessful. He now seeks leave to appeal to the Supreme Court on two grounds: first, that there was an insufficient evidential basis to establish the scale of his offending, and second, that he was not represented by counsel when the minimum term of imprisonment was imposed, contrary to section 30 of the Sentencing Act 2002. Winkelmann J concluded that the scale of Spark’s offending was at the level found based on the evidence presented at trial. The Court held that Spark’s second proposed ground had even less merit. The Court further held that no question of general or public importance arose for consideration by the Court, and there was no appearance of any substantial miscarriage of justice. Therefore, Spark’s application for leave to appeal was dismissed.

The legal issues in this case were whether there was an insufficient evidential basis to establish the scale of Spark’s offending and whether Spark was represented by counsel when the minimum term of imprisonment was imposed, contrary to section 30 of the Sentencing Act 2002. The Court held that Winkelmann J was fully entitled to conclude that the scale of Spark’s offending was at the level found based on the evidence presented at trial. The Court further held that the second proposed ground had even less merit, as the sentencing notes of Winkelmann J made clear that the Judge heard and had regard to submissions from counsel for Spark as to whether a minimum term should be imposed. Therefore, the Court held that no question of general or public importance arose for consideration by the Court, and there was no appearance of any substantial miscarriage of justice.

The Court dismissed Spark’s application for leave to appeal. The Court held that Winkelmann J was fully entitled to conclude that the scale of Spark’s offending was at the level found based on the evidence presented at trial. The Court further held that the second proposed ground had even less merit, as the sentencing notes of Winkelmann J made clear that the Judge heard and had regard to submissions from counsel for Spark as to whether a minimum term should be imposed. Therefore, the Court held that no question of general or public importance arose for consideration by the Court, and there was no appearance of any substantial miscarriage of justice. The Court dismissed Spark’s application for leave to appeal.

No orders were made by the Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established