Porter v Police - [2022] NZHC 415

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-000018

[2022] NZHC 415

BETWEEN
JOSHUA NEIL PORTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 March 2022

Appearances:

K E Bucher for Appellant

C L T-W Fiennes for Respondent

Judgment:

10 March 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 10 March 2022 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

Introduction

[1] On 2 February 2022, Joshua Porter was sentenced to two years and six months’ imprisonment by Judge M Callaghan in the Christchurch District Court1 on the following charges:

1 R v Porter [2022] NZDC 1638.

PORTER v NEW ZEALAND POLICE [2022] NZHC 415 [10 March 2022]

(a)possession of methamphetamine for supply;2

(b)unlawful possession of a restricted weapon;3

(c)unlawful possession of ammunition (x 2);4

(d)unlawful possession of a pistol;5

(e)possession of utensils for methamphetamine;6 and

(f)possession of utensils for cannabis.7

[2] Mr Porter appeals against that sentence on the basis it was manifestly excessive because the Judge adopted a starting point that was too high and failed to provide appropriate discounts for Mr Porter’s personal mitigating factors. It is submitted a sentence of home detention was appropriate in the circumstances.

Facts

[3] On 11 December 2020 police executed drug-related search warrants at Mr Porter’s address in Prebbleton. This included searches of Mr Porter’s two motor vehicles. Police also conducted a search of his lock-up storage unit in Rolleston. On the same day Mr Porter arrived at the Community Probation office at Annex Road, Christchurch, in a Toyota vehicle, for which a search warrant was also sought and granted.

[4] Inside the Toyota, police located a .22 cut-down Ruger pistol, along with 10 rounds of .22 calibre ammunition and electronic scales. From the search of the Prebbleton address, police located a commercial quantity of methamphetamine (estimated to be 23.5 grams), $22,000 in cash and a large amount of cutting agent.

2      Misuse of Drugs Act 1975, s 6(1)(c) and (2) – maximum penalty of life imprisonment.
3      Arms Act 1983, s 45(1) – maximum penalty of four years’ imprisonment and/or a fine of $5,000.
4      Arms Act, s 45(1) – maximum penalty of four years’ imprisonment and/or a fine of $5,000.
5      Arms Act, s 50(1)(a) – maximum penalty of three years’ imprisonment and/or a fine of $4,000.
6      Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year’s imprisonment and/or a fine of $500.
7      Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year’s imprisonment and/or a fine of $500.

Police also located a bong and a pipe in Mr Porter’s bedroom next to his bed, as well as 14 rounds of .22 calibre ammunition. During the search, Mr Porter’s partner provided her phone which held extensive drug tick-lists in Mr Porter’s name indicating drug dealing in the tens of thousands of dollars. Mr Porter’s partner told police that Mr…

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 Porter v Police

Details

AGLC: Porter v Police [2022] NZHC 415
Case: [2022] NZHC 415
Decision Date: 10 March 2022

CaseChat Overview and Summary

Joshua Porter appeals against a sentence of two years and six months' imprisonment imposed by the Christchurch District Court, contending that the sentence was manifestly excessive. The appeal was dismissed by the High Court. The District Court Judge adopted a starting point of three years and eight months' imprisonment, based on the commercial nature of the offending and Mr Porter's role in the offending, which the Court found was somewhere between lesser and significant. The Judge then applied various discounts to arrive at the final sentence, which was within range. The Judge appropriately considered Mr Porter's methamphetamine addiction and rehabilitative steps, which merited a 15 per cent discount. The Judge also appropriately took into account the time Mr Porter spent on electronically monitored bail while awaiting sentence, for which a four-month discount was applied. The High Court held there was no error in the Judge's approach and sentence.

Orders