Paul v The Queen - [2011] NZCA 589

IN THE COURT OF APPEAL OF NEW ZEALAND

CA501/2011
[2011] NZCA 589

BETWEEN SHILO CHARLES PAUL
Appellant

AND THE QUEEN
Respondent

Hearing: 9 November 2011

Court: Wild, Chisholm and Potter JJ

Counsel: R Vigor-Brown for Appellant
K Raftery and M Davie for Respondent

Judgment: 11 November 2011 at 10 am

Reasons: 24 November 2011 at 3.30 pm

JUDGMENT OF THE COURT

A The time for appealing is extended.

B The appeal, which is against sentence, is allowed.

CThe sentences totalling two years and three months imprisonment are quashed and replaced with a sentence of home detention for eight months on the conditions set out in [40].

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REASONS OF THE COURT

(Given by Chisholm J)

On 11 November 2011 we delivered a results decision allowing this appeal against sentence, quashing the sentences totalling two years and three months imprisonment, and replacing them with a sentence of eight months home detention.[1] We indicated that the reasons for that decision would be delivered in due course. These are the reasons.

Introduction

[1] Paul v R [2011] NZCA 574.

Having pleaded guilty to manufacturing cannabis oil and hashish, cultivating cannabis, receiving (2), driving whilst disqualified (3), and breach of bail, the appellant was sentenced on 27 May 2011 to a total of two years and three months imprisonment. The three indictable charges involving drugs attracted concurrent sentences of 18 months imprisonment. Cumulative sentences totalling nine months were added for the receiving and disqualified driving.
Before those sentences were imposed the appellant had entered a plea of not guilty to a charge of burglary that was alleged to have occurred around the same time as the offending for which he was sentenced. Subsequently the appellant was convicted on the burglary charge and a sentence of three months imprisonment, concurrent on the sentences already being served, was imposed.
Although this appeal against sentence focuses on the sentences imposed for the drug offending, the underlying submission is that the cumulative sentences totalling two years and three months imprisonment were either wrong in principle or manifestly excessive. The appellant contends that the sentencing requirements of the case could have been achieved by a sentence of home detention.
The appeal is almost two months out of time. An extension of time is not opposed by the respondent and is granted accordingly.

The offending

In July 2010 the appellant was disqualified from driving for six months. On 15 November 2010 he was found driving a motor vehicle. False particulars were given to the police. A week later, on 22 November 2010, he was observed by a police officer to be driving a motor vehicle but it was not possible to stop him at the time because the police were attending to another urgent incident. Later that day he was again found to be driving a motor vehicle.
The remaining offending (other than the burglary on which he was later sentenced) was exposed when the police executed a search warrant at the appellant’s address on 25 November 2010.
A…

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 Paul v The Queen

Details

AGLC: Paul v The Queen [2011] NZCA 589
Case: [2011] NZCA 589
Decision Date: 24 November 2011

CaseChat Overview and Summary

The case of Paul v The Queen was heard in the Court of Appeal of New Zealand. The appellant, Shilo Charles Paul, appealed against his sentence which was deemed to be excessively harsh. The case arose from a series of criminal activities committed by the appellant, including manufacturing cannabis oil and hashish, cultivating cannabis, receiving, and driving while disqualified. The appellant was sentenced to a total of two years and three months imprisonment, which he considered to be manifestly excessive. The appeal was heard by Wild, Chisholm, and Potter JJ. The key legal issues that the Court was required to decide were whether the sentences imposed were wrong in principle or manifestly excessive and if a sentence of home detention would have been a more appropriate outcome.

The Court of Appeal found that the appellant's argument that the cumulative sentences of two years and three months imprisonment were either wrong in principle or manifestly excessive was valid. The Court noted that the appellant's counsel had conceded that the drug offending involved a commercial element, but this concession was made without a disputed facts hearing under s 24 of the Sentencing Act 2002. The Court found that there was no sound basis for the sentencing Judge to draw the commerciality inference that he did. The Court also concluded that the two-year starting point used by the Judge was too high and that an 18-month starting point would have been more appropriate. The Court further found that the sentencing Judge had given too much weight to denunciation and deterrence and not enough to the least restrictive outcome and the desirability of keeping offenders in the community.

The Court of Appeal allowed the appeal against sentence, quashed the sentences totalling two years and three months imprisonment, and replaced them with a sentence of home detention for eight months with specific conditions. The Court of Appeal granted an extension of time for the appeal and substituted the original sentences with a sentence of eight months home detention. The Court concluded by reminding the appellant of the importance of breaking his drug habit and avoiding future offending for the sake of himself and his family.

Orders