Police v Knox
[2013] NZHC 2828
•25 October 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-485-000067 [2013] NZHC 2828
BETWEEN NEW ZEALAND POLICE Respondent/Appellant
ANDKERRY BRUCE SHANE KNOX Applicant/Respondent
Hearing: 25 October 2013
Counsel: P K Feltham for Respondent/Appellant
D A Ewen for Applicant/Respondent
Judgment: 25 October 2013
JUDGMENT OF COLLINS J
Introduction
[1] The question which I address in this judgment is whether Mr Knox should be granted leave to appeal my decision of 22 October 2013. In that decision I allowed an appeal by the police from a sentence of home detention imposed on Mr Knox by the District Court in relation to four charges concerning supply of methamphetamine. In allowing the appeal I imposed a sentence of two years and three months’ imprisonment.
[2] I can only grant leave for Mr Knox to appeal my decision if his proposed appeal involves a question of law which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.1
Context
[3] In April 2012 Mr Knox was charged with four offences relating to:
1 Summary Proceedings Act 1957, s 144(1) and (2).
(1) conspiring to supply methamphetamine; (2) supplying methamphetamine;
(3) offering to supply methamphetamine; and
(4) possessing methamphetamine for the purposes of supply.
[4] The total amount of methamphetamine involved in Mr Knox’s case was
26.45 grams.
[5] Mr Knox’s arrest followed the termination of a police operation called “Operation Marian” in which a number of people were found to be involved in the conspiring to manufacture and supply methamphetamine.
[6] Mr Knox has previous relevant convictions. On 27 February 2009 he was sentenced to two and a half years’ imprisonment on charges relating to the supply of methamphetamine. On 29 March 2012 he was sentenced to nine months’ supervision for possessing methamphetamine and for a related charge.
[7] By the time he was sentenced in the District Court, eight of Mr Knox’s co- offenders had pleaded guilty and been sentenced. Seven of those co-offenders received prison sentences ranging from two years and one month’s imprisonment to six years’ imprisonment. The other co-offender, described as being the most minor of the conspirators, was sentenced to 11 months’ home detention.
[8] Mr Knox was assessed in the summary of facts as being a “significant figure” in the methamphetamine supply network that was exposed through Operation Marian.
[9] On 12 March 2013 Judge Barry gave Mr Knox a sentence indication in which he said that if Mr Knox pleaded guilty he would be likely to be sentenced to two years and ten months’ imprisonment. Mr Knox declined the sentence indication but nevertheless pleaded guilty to the four charges on 28 March 2013.
[10] Mr Knox was sentenced by Judge Broadmore on 31 July 2013. Judge Broadmore adopted Judge Barry’s starting point of two years ten months’ imprisonment but gave Mr Knox further discounts to reflect:
(1) the further time spent by Mr Knox on electronically monitored (EM)
bail;
(2)the impact of sending Mr Knox to prison would have on his 12 month old son; and
(3) Mr Knox’s steps towards rehabilitation.
[11] Judge Broadmore then sentenced Mr Knox to 12 months’ home detention and
200 hours’ community work. Judge Broadmore also recorded that Mr Knox’s
sentence be subject to judicial monitoring.
[12] The police appealed on the grounds that Judge Broadmore:
(1) had no jurisdiction to impose the sentence which he imposed; or
(2) the sentence was clearly inadequate or inappropriate.2
[13] I concluded:
(1)Judge Broadmore had the jurisdiction to impose the sentence which he imposed, but that;
(2) the sentence was clearly inadequate or inappropriate; and
(3) the sentence imposed by Judge Broadmore needed to be quashed and
replaced with a sentence of two years and three months’
imprisonment.
2 Summary Proceedings Act 1957, s 121(3).
Proposed appeal
[14] Mr Knox has sought leave to appeal on the following four grounds, but he has also reserved the opportunity to apply for the Court of Appeal to consider further grounds of appeal if leave is granted:
(1) On an informant’s appeal against sentence was the Court required to assess the adequacy of the sentence first by reference to the lowest available starting point and assess discounts applied in light of that starting point?
(2) If the sentencing Judge has applied a discount for a mitigating factor available in law and grounded on existing authority, was the Court entitled to reject it on appeal?
(3) In determining the notional end sentence for the purposes of s 15A of the Sentencing Act 2002, was the sentencing Judge entitled to make a discrete adjustment in the prison term to take into account a cumulative community-based sentence coupled with home detention (in this case 200 hours’ community work and judicial monitoring)?
(4) Further or in the alternative to (3), was the fact that the Applicant had spent approximately two months in custody a factor the Court should have taken into account in determining whether the sentence imposed was clearly inadequate, when measured against the sentence then imposed?
Relevant principles
[15] In R v Slater the Court of Appeal explained that when considering the grounds for leave to appeal set out in s 144 of the Summary Proceedings 1957, the High Court:3
has a residual discretion to refuse to grant special leave even though there is a question of law involved and that question is a question of general or public importance ...
The Court of Appeal did not explain when the High Court should exercise its residual discretion against granting leave to appeal questions of law that involve matters of general or public importance.
[16] In Waitakere City Council v Hertzke the Court of Appeal said:4
Only in rare cases will a sentencing matter raise a question of law of such importance as to justify a further appeal to this Court.
[17] When considering a sentence appeal, appellate courts focus upon the appropriateness of the sentence that is reached by the lower court, not the methodology employed to reach that sentence.5 However, there will be cases where questions of sentencing methodology have such an impact on that end sentence that they are capable of raising questions of law of general or public importance.6
Analysis
[18] When considering the police’s appeal from Mr Knox’s sentence, I had to decide amongst other matters, whether or not the sentence imposed by Judge Broadmore was clearly inadequate or inappropriate. I did so in the context of:
(1) Mr Knox having previous relevant convictions for which he had been
sentenced to a period of two and a half years’ imprisonment.
(2) Most of Mr Knox’s co-offenders were sentenced to imprisonment.
(3) The strong legislative indication that persons convicted of supplying a
Class A controlled drug will be sentenced to imprisonment.7
[19] In my respectful assessment, the first three proposed questions of law involve an analysis of the mechanism I adopted when concluding Mr Knox had to be sentenced to imprisonment for his offending and that those proposed questions of law do not raise matters which could realistically alter the sentence of imprisonment which I imposed.
[20] Accordingly, I believe I should exercise my residual discretion not to allow the first three questions of law to be appealed to the Court of Appeal.
4 Waitakere City Council v Hertzke (1997) NZRMA 222 (CA).
5 Chapman v R [2011] NZCA 134 at [11]; R v MacCullough [2005] 2 NZLR 665 (CA) at [50].
6 Tahiti v New Zealand Police HC Auckland CRI-2010-404-330, 10 December 2010.
7 Misuse of Drugs Act 1975, s 6(4) not referred to in my sentencing decision.
[21] The fourth proposed question of law suggests that I erred in not taking into account the period during which Mr Knox spent in custody prior to sentence. I do not understand how that proposed question of law can be reconciled with s 82 of the Sentencing Act 2002.8
[22] Accordingly, I conclude that the fourth proposed question of law is not a question of law that is of sufficient, public or general importance that it ought to be considered by the Court of Appeal.
Conclusion
[23] Thus, whilst I accept that the proposed grounds of appeal do contain questions of law, in my assessment, they are not questions which justify leave being
granted to Mr Knox to appeal to the Court of Appeal.
D B Collins J
Solicitors:
Crown Solicitor, Wellington
8 82 Pre-sentence detention must not be taken into account in determining length of sentence
In determining the length of any sentence of imprisonment to be imposed, the court must not
take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.