Martel v The King - [2023] NZSC 48

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 125/2022
[2023] NZSC 48

BETWEEN	RODNEY GEORGE MARTEL Applicant
AND	THE KING Respondent

Court:	O’Regan, Williams and Kós JJ
Counsel:	M J Dyhrberg KC and H G de Groot for Applicant Z R Johnston for Respondent
Judgment:	5 May 2023

JUDGMENT OF THE COURT

The application for an extension of time to apply for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant pleaded guilty and was sentenced to 18 and a half years for the importation of restricted drugs into New Zealand.[1] He seeks leave to appeal against a decision of the Court of Appeal dismissing his appeal against sentence.[2] As this application is over four years out of time, he also seeks an extension of time to bring the application.

Background

[1]R v Martel [2017] NZHC 1878 (Palmer J) [Sentencing notes].

[2]Martel v R [2018] NZCA 305 (French, Venning and Katz JJ).

The applicant was sentenced for importing 5.683 kilograms of methamphetamine, 7.7 litres of GBL, 31 grams of cocaine, 31 grams of MDMA powder and 1,986 tablets of MDMA in 37 packages over a period of 10 months. A search warrant executed on his hotel room found a fraudulently obtained passport, a rifle, drug dealing equipment and cash.

Lower Courts decisions

Sentencing in the High Court

The methamphetamine importation was treated as the lead offending, and as the sentencing occurred before the Court of Appeal’s decision in Zhang v R,[3] the applicant was sentenced in the High Court based on the principles in R vFatu.[4] The applicant fell within band four of Fatu, in which the relevant starting point was between 12 years and life imprisonment. The Judge found that the applicant had a central role which was “pivotal”.[5] His role, combined with the very large quantity of drugs, led to a starting point of 20 years imprisonment.
[3]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[4]R v Fatu [2006] 2 NZLR 72 (CA).
[5]Sentencing notes, above n 1, at [18].
The Judge then uplifted the sentence by six months to reflect previous convictions for manufacturing, possessing and supplying methamphetamine.
The Judge gave the applicant a 10 per cent discount for the guilty plea which was entered on the first day of the trial. An MPI of 50 per cent was imposed.

Court of Appeal

The applicant’s unsuccessful appeal to the Court of Appeal was also considered in accordance with the Fatu guidelines. His grounds of appeal were that the Judge adopted a starting point that was too high and failed to give sufficient discount for his remorse and guilty plea. He did not challenge the MPI.
The Court of Appeal held that the High Court Judge correctly set the starting point which reflected the volume of drugs, duration of offending and the applicant’s senior role in the operation. The Court also found that the discounts given (or not given)…

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 Martel v The King

Details

AGLC: Martel v The King [2023] NZSC 48
Case: [2023] NZSC 48
Decision Date: 5 May 2023

CaseChat Overview and Summary

Rodney George Martel applied to the Supreme Court of New Zealand for leave to appeal against a decision of the Court of Appeal which had dismissed his appeal against sentence. Martel had pleaded guilty to importing a large quantity of restricted drugs into New Zealand and was sentenced to 18 and a half years imprisonment. Martel sought leave to appeal against the sentence imposed by the High Court, as well as an extension of time to bring the application since it was over four years out of time. The legal issues before the Court were whether Martel's sentence was manifestly unjust or disproportionate, whether the minimum penalty imposed was justified, and whether leave should be granted because his trial counsel advanced his first appeal on misconceived grounds. The Court held that while addiction and the imposition of minimum penalties are relevant factors, in this case the sentence and minimum penalty reflected Martel's leading role in the drug importation operation, such that there was no risk of miscarriage of justice if leave was not granted. Accordingly, Martel's application for leave to appeal and for an extension of time was dismissed.

The Court considered that while addiction is a relevant factor in drug sentencing, in this case the sentence reflected Martel's senior role in the drug importation operation. The Court also found that the minimum penalty imposed was justified given the circumstances. The Court concluded that since there was no basis to grant leave to appeal, there was no point in granting an extension of time to bring the application. The Court dismissed Martel's application for leave to appeal and for an extension of time.

Orders