Pona v R - [2020] NZHC 3503

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000453

[2020] NZHC 3503

BETWEEN
RAYMOND PONA

Appellant

AND

THE QUEEN

Respondent

Hearing: 15 December 2020

Appearances:

S J Lance for the Appellant M Djurich for the Respondent

Judgment:

22 December 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 22 December 2020 at 12:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Kayes Fletcher Walker Ltd, Manukau Counsel: S Lance, Auckland

PONA v R [2020] NZHC 3503 [22 December 2020]

[1] This is an appeal against sentence. Following a disputed facts hearing in relation to the quantity of methamphetamine involved, the appellant, Raymond Pona, was sentenced in the Manukau District Court by Judge C S Blackie to two years and seven months’ imprisonment. Mr Pona had pleaded guilty to one representative charge of offering to supply methamphetamine and one representative charge of supplying methamphetamine as well as four cannabis and Arms Act 1983 charges.

[2] The appeal is 12 days out of time. It appears from the notice of appeal that the appeal was initially filed in the wrong court by mistake. Mr Pona accordingly has to seek leave to file the appeal. The Crown does not oppose the application, and an extension of time is granted.

[3] The appeal is brought on the sole ground that the Judge erred in his assessment of the quantity of methamphetamine Mr Pona offered to supply, and did supply, and therefore the starting point adopted for the sentence was too high. The Crown opposes the appeal on the basis that the Judge did not err in evaluating the facts disputed by the appellant. It also says the starting point was within the range available and not manifestly excessive.

Factual background

[4] On 13 May 2019, the Police executed a search warrant at Mr Pona’s home address. There, the Police located a modified Beretta A300 semi-automatic 12-gauge shotgun. The shotgun was reduced in length and the serial number had been ground off. The Police also located one kilogram of an ammonium-nitrate-based, high-power emulsion explosive. These formed the basis of the charges under the Arms Act 1983.

[5] During the search, the Police further located digital scales and a large number of zip-lock bags as well as two mobile phones. In the two mobile phones, the Police identified text and Facebook messages based on which it was alleged that:

(a)Between 2 September 2017 and 12 May 2019, Mr Pona offered to supply 87.5 grams of methamphetamine on 29 occasions;

(b)Between 2 September 2017 and 7 May 2019, Mr Pona supplied
35.3 grams of methamphetamine on 14 occasions;

(c)Between 3 April 2019 and 11 May 2019, Mr Pona offered to sell cannabis on four occasions; and

(d)Between 14 March 2019 and 13 May 2019, Mr Pona sold cannabis on two occasions.

[6] Accordingly, Mr Pona was initially charged with 51 charges, all but two of which were methamphetamine…

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 Pona v R

Details

AGLC: Pona v R [2020] NZHC 3503
Case: [2020] NZHC 3503
Decision Date: 22 December 2020

CaseChat Overview and Summary

Raymond Pona appeals against his sentence, which was imposed following a disputed facts hearing in relation to the quantity of methamphetamine he offered to supply and actually supplied. Mr Pona pleaded guilty to one charge of offering to supply methamphetamine, one charge of supplying methamphetamine, as well as four cannabis and Arms Act charges. The appeal is brought on the sole ground that the sentencing Judge erred in his assessment of the quantity of methamphetamine offered to supply and supplied, and therefore the starting point adopted for the sentence was too high. The Crown opposes the appeal on the basis that the Judge did not err in evaluating the facts disputed by the appellant and that the starting point was within the range available and not manifestly excessive. The court holds that the Judge erred in his assessment of the quantity of methamphetamine offered to supply and supplied. The Judge found that Mr Pona offered to supply 85 grams of methamphetamine and supplied 35 grams of the drug. However, the court finds that there is a reasonable doubt whether the amounts offered to supply and supplied are as high as the Judge found them to be. The appeal should be allowed and the sentence should be reduced accordingly. The sentences of two years and seven months’ imprisonment on the charges of offering to supply methamphetamine, supplying methamphetamine, unlawful possession of a firearm and unlawful possession of explosives are quashed and replaced by sentences of 23 and a half months’ imprisonment. The concurrent sentences of 12 months’ imprisonment on the two cannabis charges remain.

Orders