Morehu v The Queen - [2020] NZHC 196

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2020-463-000002

[2020] NZHC 196

BETWEEN
HARLEY ROBERT MOREHU

Appellant

AND

THE QUEEN

Respondent

Hearing: 12 February 2020

Appearances:

C Bean for the Appellant

H A Wrigley for the Respondent

Judgment:

18 February 2020

JUDGMENT OF GWYN J

This judgment was delivered by me on 18 February 2020 at 2.15pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
C Bean, Barrister, Hamilton
Crown Solicitor, Pollett Legal Ltd, Tauranga

MOREHU v R [2020] NZHC 196 [18 February 2020]

Introduction

[1]Mr Morehu pleaded guilty to charges of:

(a)Possession of methamphetamine for supply;

(b)Unlawful possession of explosives;

(c)Supply of methamphetamine;

(d)A representative charge of conspiracy with another to supply methamphetamine;

(e)Offering to supply methamphetamine.

[2] On 14 October 2019, Mr Morehu was sentenced by Judge Mabey QC to two years and seven months’ imprisonment.1 He appeals. The appeal is filed out of time, but the Crown agrees that it is in the interests of justice to allow an extension of time.

Facts of the offending

[3] On 6 November 2018, the police conducted a search of Mr Morehu’s address. In his bedroom they located 3.4 grams of methamphetamine,2 digital scales, small plastic bags and $4,320 cash. Additionally, they located eight rounds of shotgun ammunition, and three more boxes in Mr Morehu’s car. After discovery of the methamphetamine, police analysed Mr Morehu’s cell phone activity. It emerged that over approximately seven weeks, he had supplied at least five grams of methamphetamine and offered to supply unknown quantities to various persons over the same period. Further analysis showed that over a ten week period ending 2 December 2019, he had conspired to deal in methamphetamine.

1 Morehu v R [2019] NZDC 20610.
2 Sentencing proceeded on the basis that the 3.4 grams contained only 1.2 grams of the pure drug. Hence, the reference to 6.2 grams of methamphetamine in the sentencing indication and the sentencing notes.

[4] Importantly, for the purposes of this appeal, at the time of the offending Mr Morehu had been on parole for a sentence of three years three months’ imprisonment. He was recalled to prison on 7 November 2018, and remained there until sentencing on 14 October 2019.

Decision on appeal

[5] Judge Mabey provided a sentencing indication on 18 July 2019, which was subsequently accepted.3 The indication was provided on the basis of a total weight of
6.2 grams of methamphetamine. The Judge noted that there was no evidence of addiction, and that Mr Morehu’s conduct indicated commercial drug dealing activity. Consideration of the time spent on recall was rejected:

[54] Mr Bean also made the submission that his client is being punished already for this offending as he has been recalled to prison as he was on parole when charged. I cannot accept that submission. Recall to imprisonment by the Parole Board is not a relevant sentencing consideration. However, it is relevant that Mr Morehu was on parole for drug dealing charges and if…

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 Morehu v The Queen

Details

AGLC: Morehu v The Queen [2020] NZHC 196
Case: [2020] NZHC 196
Decision Date: 18 February 2020

CaseChat Overview and Summary

Harley Robert Morehu was convicted of possession of methamphetamine for supply, unlawful possession of explosives, supply of methamphetamine, conspiracy to supply methamphetamine, and offering to supply methamphetamine. He was sentenced to two years and seven months' imprisonment. He appealed the sentence on the basis that the District Court Judge failed to give credit for the time he spent on recall. The Crown conceded that the appeal should be heard out of time and that it was in the interests of justice to do so. The High Court allowed the appeal, quashed the sentence, and substituted a sentence of two years and two months' imprisonment. The Court found that the District Court Judge erred in not giving credit for the time Morehu spent on recall. It was established that there was no statutory provision for giving credit for time spent on recall, but the Court found that it was just and proper to do so to avoid double punishment. The Court determined that a discount of approximately two-thirds of the period on recall was appropriate and set the discount at five months. The Crown argued that the starting point and uplift were lenient, but the Court disagreed and found that a different sentence should be imposed.

The final orders were that an extension of time to appeal was granted, the appeal against sentence was allowed, a discount of five months for the time spent on recall was allowed, and the sentence of two years and seven months' imprisonment was quashed and replaced with a sentence of two years and two months' imprisonment.

Orders