Newton v Police - [2019] NZHC 1245

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-24

[2019] NZHC 1245

BETWEEN
CHAINEY BEAU NEWTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 May 2019

Appearances:

J Spelman for Appellant

A R van Echten for Respondent

Judgment:

4 June 2019

JUDGMENT OF GRICE J

Introduction

[1] Mr Newton appeals against a sentence of 16 months imprisonment together with disqualification from driving for six months, post release conditions and $100 reparation.

[2] The sentence followed his pleas of guilty on nine chares. The lead charge and the focus of the appeal was a representative charge of offering to sell cannabis.

[3] The primary ground of appeal is that the sentence was manifestly excessive because the judge erred by adopting a starting point which was too high.

[4]The issues on appeal are:

NEWTON v NEW ZEALAND POLICE [2019] NZHC 1245 [4 June 2019]

(a)Did the judge err in adopting the guidelines set out in R v Terewi, as this was a guideline judgment for sentencing developed in a concerning cultivation of cannabis where this is a case of offering to sell cannabis?

(b)Did the judge err in adopting band 2 of Terewi as being the context in which to consider the sentence?

(c)Even if either of those were the case or otherwise was the final sentence within the available range?

Background

[5] Mr Newton pleaded guilty to nine charges on 19 February 2019. On 5 April 2019 in the District Court. Mr Newton was sentenced as follows:

(a)On one representative charge of offering to sell cannabis,1 the lead charge, Mr Newton was 16 months’ imprisonment and six months of special release conditions which included that he is not to possess or consume non-prescribed drugs or alcohol; he is to attend and complete an appropriate alcohol and drug counselling programme; he is to reside at an address approved by his probation officer and is not allowed to move without written approval; and he is to notify his probation officer before starting, terminating or varying any employment or voluntary work;

(b)On one charge of possession of methamphetamine,2 Mr Newton was sentenced concurrently to one-month imprisonment on the same conditions and an order was made to destroy the drugs;

(c)On one representative charge of breaching release conditions,3 Mr Newton was sentenced concurrently to one-month imprisonment on the same conditions;

1      Misuse of Drugs Act 1975, 6(1)(e); maximum penalty of eight years’ imprisonment.
2      Sections 7(1)(a) and 7(2); maximum penalty of six months’ imprisonment and $1,000 fine.
3      Sentencing Act 2002, s 96(1); maximum penalty of one-year imprisonment and $2,000 fine.

(d)On two representative charges of dishonest use of a document for pecuniary advantage,4 Mr Mr Newton was sentenced concurrently to three months’ imprisonment on the same conditions and sentenced to pay $100 reparation by way of $10 instalments per week once he was released;

(e)On one charge of receiving,5 Mr Newton was sentenced concurrently to one-month imprisonment on the same conditions;

(f)On one…

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.

Keep reading for free

Create a free CaseChat account to read Newton v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 1245
Decision Date: 4 June 2019

CaseChat Overview and Summary

Chainey Beau Newton appeals against his sentence of 16 months imprisonment, together with disqualification from driving for six months, post-release conditions, and a $100 reparation payment. The sentence was imposed following Newton's pleas of guilty to nine charges, with the lead charge being offering to sell cannabis. Newton argues that the sentence was manifestly excessive because the judge erred in adopting a starting point that was too high by relying on the tariff decision in R v Terewi. The primary ground of appeal is that the judge erred in adopting guidelines set out in R v Terewi, a guideline judgment for sentencing developed in a case concerning the cultivation of cannabis rather than offering to sell it. The appeal also argues that the judge erred in adopting band 2 of Terewi as the context in which to consider the sentence and that the final sentence was within the available range.

The court found that Terewi was appropriately applied by the sentencing judge, as there was no error in using it as a guideline judgment for offering to sell cannabis. The court also found that the sentencing judge correctly placed Newton's offending within band 2 of Terewi due to the amounts and frequency of offerings indicated in the text messages. The appeal was dismissed, and the original sentence was upheld.

Orders