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R v Bryant

R v Bryant

Case [2009] NZCA 287 7 July 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA177/2009
[2009] NZCA 287
THE QUEEN
v
PAUL TEJA BRYANT
Hearing:1 July 2009

Court:Hammond, Simon France and Lang JJ
Counsel:Appellant in person (together with N R Healey as McKenzie Friend)

J M Jelas for Crown

Judgment:7 July 2009 at 3 pm

JUDGMENT OF THE COURT

A.An extension of time for appealing is granted.
B.Leave to have assistance from a McKenzie friend and to adduce fresh evidence on the appeal are granted.
C.The appeal against sentence is allowed. The sentence of two years three months’ imprisonment is quashed. Subject to the condition identified in [38], a sentence of four months’ home detention is imposed, together with the conditions set out in [35] and [36] of the judgment.
D.If a suitable home detention address is no longer available, a reduced sentence of 22 months’ imprisonment will be imposed instead.
E.An assessment of the suitability of the new home detention address is to be undertaken as soon as possible.

____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Introduction
[1]       Mr Bryant appeals against a sentence of two years three months’ imprisonment on one charge of possessing cannabis for sale. The grounds of appeal are that the starting point was too high and insufficient credit was given for personal mitigating factors. At the start of the hearing, without opposition we made preliminary orders extending the time for appeal, allowing a McKenzie friend and allowing fresh evidence (namely an affidavit from Mr Bryant).
Facts
[2]       Mr Bryant and a co‑offender were found carrying a large amount (44 kilograms) of recently cut cannabis out of the bush. The plot which provided the cannabis was found nearby. The men were originally charged with cultivation. However, following depositions, they pleaded guilty to the single count of possession for supply and were discharged on the cultivation charge.
[3]       The cannabis plants which the offenders were carrying had come from 18 plants which, in a pruned state, ranged from 1.5 to 2.5 metres in height. The police dried off the cannabis and the resultant leaf and head material came to approximately 5 kilograms.
[4]       Concerning value, the police estimates were based on evidence which indicated that cannabis head material could sell for between $2,000 and $5,000 per pound, or $200 and $500 per ounce, with $300 being a typical street value. Using these figures, the police estimated the cannabis possessed by these offenders had a potential value of $17,600 at $2,000 per pound or $42,253 at $300 per ounce. It can be seen that these figures take the lowest point of the range for bulk sales, and the mid‑point for ounce sales.
[5]       Matters particularly addressed at sentencing were the circumstances under which the offenders came to be in possession of cannabis, and the street values.
Decision under appeal
[6]       In the District Court, Judge Weir rejected the offenders explanation that they were out pig‑hunting and came upon the plot. Based on evidence filed for depositions, his Honour noted the…

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 R v Bryant

Details

AGLC: R v Bryant [2009] NZCA 287
Case: [2009] NZCA 287
Decision Date: 7 July 2009

CaseChat Overview and Summary

Mr Bryant appealed against his sentence of two years and three months imprisonment for possessing cannabis for sale. The appeal was against the starting point being too high and insufficient credit being given for personal mitigating factors. The Court of Appeal allowed the appeal and substituted the sentence of imprisonment with a sentence of four months’ home detention, subject to the suitability of the home detention address. If the home detention address was unsuitable, then the Court would impose a sentence of 22 months imprisonment.

The Court of Appeal noted that the Judge had rejected the offenders' explanation that they were out pig-hunting and came upon the plot. The Court noted that the Judge's remarks gave the implication that the offenders were responsible for the plot. However, the reality is that a charge of cultivation had been laid, but was the subject of a discharge under s 347 of the Crimes Act 1961. Sentencing had to proceed on the basis that the offenders had cut the cannabis from the plot in order to dry it and sell it. The Court of Appeal considered that the issue of who cultivated the plants was still a consideration.

The Court of Appeal considered the starting point of three years selected by the Judge was too high. The Court of Appeal considered that a starting point of two years six months imprisonment would have been appropriate. The Court of Appeal noted that the Judge’s remarks gave the appearance that he considered the cultivation allegation remained a relevant factor for sentencing purposes. The Court of Appeal was not persuaded that the Judge erred in failing to give greater credit than 25 per cent for the guilty plea. The Court of Appeal considered that the Judge did not err in the sentence imposed. However, the Court of Appeal considered that the starting point was too high. The Court of Appeal proposed to address this difficulty by imposing a post detention condition that will enable courses and programmes to be continued or undertaken.

Orders