R v Cutler - [2019] NZHC 2737

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-1197

[2019] NZHC 2737

THE QUEEN

v

BRIAN PAUL CUTLER

Hearing: 25 October 2019

Appearances:

R McCoubrey for the Crown R Mansfield for the Defendant

Sentencing:

25 October 2019

SENTENCE OF GAULT J

Solicitors / Counsel:
Mr R McCoubrey, Meredith Connell, Office of the Crown Solicitor, Auckland Mr R Mansfield, Barrister, Auckland

R v CUTLER [2019] NZHC 2737 [25 October 2019]

[1] Mr Cutler appears for sentencing having pleaded guilty to five charges relating to possessing and supplying relatively large quantities of methamphetamine. They are:

(a)four charges of possession for supply of a class A controlled drug, methamphetamine;1 and

(b)one charge of supplying the class A controlled drug methamphetamine.2

[2] This is, to the best of my knowledge, one of, if not, the first methamphetamine related sentencings following the release of the Court of Appeal’s decision in Zhang v R, which sets new guidance on sentencing for methamphetamine dealing.3

Facts

[3] Mr Cutler is now 47 years’ old. He arrived in New Zealand from Australia in September 2017. He became a person of interest to the National Organised Crime Group and the New Zealand Customs Service in November 2017.

[4] Throughout December 2017 and early January 2018, Customs examined a large number of courier consignments originating from Malaysia addressed to different business entities at 8D Southgate Place, Henderson, a factory unit Mr Cutler rented and resided in. A company, named North Island Equipment Services Ltd, had been incorporated, with the sole director and shareholder as Christopher Wilson and address at that factory unit. Each of these consignments contained identical cylinder or engine parts. None of them contained methamphetamine. The consignments were received and signed for by Mr Cutler.

[5] However, between 16 January and 3 February 2018, Customs intercepted and examined four very similar packages addressed to “North Island Quality Ltd”, or some variant thereof, at Mr Cutler’s address. Each of these four packages contained approximately 2.5 kgs of methamphetamine. All of the packages were subsequently

1      Misuse of Drugs Act 1975, ss 6(1)(f) and 2(a). Maximum penalty life imprisonment.
2      Sections 6(1)(c) and 2(a). Maximum penalty life imprisonment.
3      Zhang v R [2019] NZCA 507. The decision replaces the Court of Appeal’s guideline decision in
R v Fatu [2006] 2 NZLR 72 (CA).

delivered to and signed for by Mr Cutler at his address. A courier call was also intercepted where Mr Cutler identified himself as “Chris”.

[6]The total quantity of methamphetamine was 10.2 kgs.

[7] On 23 January 2018 Police and Customs executed a covert search warrant at a different storage unit in Henderson hired by Mr Cutler. They found the first consignment, which had not been opened, and seven empty cylinders or engine parts. Police installed a covert camera in the corridor of the storage facility. The camera had a good view of the unit, such that when the unit was accessed there was good imagery of…

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 Cutler

Details

AGLC: R v Cutler [2019] NZHC 2737
Case: [2019] NZHC 2737
Decision Date: 25 October 2019

CaseChat Overview and Summary

Brian Paul Cutler was sentenced for possession and supply of methamphetamine by the High Court of New Zealand. Cutler had pleaded guilty to four counts of possession for supply and one count of supply of methamphetamine, totaling 10.2 kilograms. The court adopted a starting point of 12 years' imprisonment, considering the significant quantity of drugs and Cutler's role as an intermediary operating under instruction. The starting point was reduced by 20% due to Cutler's lack of criminal history, positive behavior in prison, and genuine remorse, and a further 25% discount was applied for his guilty plea. The final sentence was seven years and two months' imprisonment, to be served concurrently.

The court considered the purposes and principles of sentencing, emphasizing accountability, denunciation, deterrence, community protection, and rehabilitation. The sentencing followed the guideline decision in Zhang v R, which introduced new bands of culpability for methamphetamine dealing. Cutler's role was characterized as significant but not leading, and his culpability was balanced with the quantity of drugs involved. The court also took into account personal mitigating factors such as Cutler's good character, prospects of rehabilitation, and the hardship of serving a lengthy sentence away from his family.

Orders