Preston v The Queen - [2010] NZCA 27

IN THE COURT OF APPEAL OF NEW ZEALAND
CA532/2009
[2010] NZCA 27
BETWEENCRAIG COLE PRESTON

Appellant

ANDTHE QUEEN

Respondent

Hearing:15 February 2010

Court:William Young P, Wild and Heath JJ
Counsel:G Boot for Appellant

B D Tantrum for Respondent

Judgment:24 February 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal, which is against sentence only, is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1]        Did the Judge err in deciding not to sentence the appellant to home detention? That is the issue on this appeal by Mr Preston against a sentence of 20 months imprisonment imposed on him in the District Court at Hamilton on 28 August 2009 by Judge Burnett.[1]
[1]R v Kenney DC Hamilton CRI-2008-019-8348, 28 August 2009.
[2]        For the appellant, Mr Boot contends that the appropriate sentence was 10 months home detention.
Background
[3]        Mr Preston was sentenced on one charge of supplying the Class A drug methamphetamine, and also on two summary charges, one of possession of LSD, the other possession of cannabis. The Judge also sentenced Mr Preston for a breach of his bail.
[4]        All the drug charges arose out of what the Police found when they executed a search warrant at the home of Mr Preston’s co-offender, Mr Kenney, on 26 September 2008. Concealed in one of Mr Preston’s shoes the Police found three snaplock bags containing a total of 2.1 grams of methamphetamine. Mr Preston also had three LSD tabs, a small amount of cannabis, and $210in cash in his wallet. His fingerprints were found on a plastic bag containing a large number of snaplock bags, and on a “tick list”.
[5]        The Police seized the appellant’s cellphone, and subsequently identified 15 occasions on which Mr Preston had sold, or offered to sell, methamphetamine in quantities varying between a gram and a point. The appellant was arrested and charged. He claimed the methamphetamine concealed in his shoe was for his own use, at a party he and Mr Kenney were about to go to.
[6]        The appellant pleaded guilty after his committal for trial.
The Judge’s sentence
[7]        The Judge sentenced Messrs Kenney and Preston together. Mr Kenney faced an additional charge of receiving. He was 26 – two years older than Mr Preston. Analysis of Mr Kenney’s cellphone showed that he had sold or offered to sell methamphetamine on at least 30 occasions. The effective sentence imposed on Mr Kenney was three years imprisonment.
[8]        Dealing with Mr Preston, the Judge began by placing his methamphetamine offending in Band 1 of R v Fatu.[2] As Fatu suggests starting points for this band in the range of two to four years,[3] Mr Boot felt unable to contest the Judge’s sentencing starting point of two and a half years imprisonment. The Judge then reduced that to 20 months imprisonment, to allow for Mr Preston’s guilty pleas. She imposed lesser, concurrent sentences on the other charges.
[2]R v Fatu [2006] 2 NZLR 72.
[3]At [34].

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 Preston v The Queen

Details

AGLC: Preston v The Queen [2010] NZCA 27
Case: [2010] NZCA 27
Decision Date: 24 February 2010

CaseChat Overview and Summary

Craig Cole Preston appeals against the sentence imposed on him by the District Court at Hamilton. The appellant was convicted on one charge of supplying methamphetamine, and two summary charges of possession of LSD and cannabis. The District Court Judge sentenced the appellant to 20 months imprisonment, which is the subject of the present appeal. The appellant contends that the sentence should have been 10 months home detention. The appellant was arrested and charged after police found methamphetamine concealed in one of his shoes, LSD, cannabis, and cash in his wallet, and identified fifteen occasions on which he had sold or offered to sell methamphetamine. The appellant pleaded guilty and the Judge imposed a sentence of 20 months imprisonment, with lesser concurrent sentences on the other charges. The Judge rejected the recommendation in the pre-sentence report for a home detention sentence. The Court of Appeal holds that the Judge was entitled to prefer imprisonment over home detention, as the appropriate sentence for the appellant's dealing in methamphetamine. The appeal is dismissed and the sentence stands.

Orders