R v Dewar - [2013] NZHC 2010

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-043-2338 [2013] NZHC 2010

THE QUEEN

v

GARRY ANTHONY DEWAR

Hearing: 9 August 2013

Counsel: C E Clarke for Crown
A Laurenson for Prisoner

Sentence: 9 August 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1] Mr Dewar you have been convicted by a jury of the following offences: (a) participation in an organised criminal group;1
(b) conspiracy to supply cannabis;2 and

(c) theft (of electricity).3

[2] I am going to tell you now where you stand in terms of sentence. By the skin of your teeth, you will be sentenced to home detention for a term of twelve months.

[3] Some may think that sentence is lenient. But it is in scale with the sentences imposed on other offenders caught in this police operation. It reflects the real extent

1      Crimes Act 1961, s 98A.
2      Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2A)(c).
3      Crimes Act 1961, ss 219 and 223(c).

R v DEWAR [2013] NZHC 2010 [9 August 2013]

of your responsibility, which is not measured simply by your nominal title as President of the Taranaki chapter of the Rebels motorcycle gang. It is calculated to achieve the greatest prospect of your returning to society as a decent family man, as a tradesman and as I say a member of society.

Facts

[4] You are 41 years old. You are a qualified electrician and you are currently employed in that trade.

[5] The charges against you arose out of Operation Puff, an investigation into the sale and supply of controlled drugs in the New Plymouth area between May and September 2011. Part of that investigation focused on the activities of the New Plymouth chapter of the Rebels motorcycle gang.

Participation in an organised criminal group

[6] You were, as I have said, President of the Taranaki chapter of that gang. To call your chapter a “gang” is perhaps grandiose. It seems to have consisted of three men and one motorcycle. It was a small start-up enterprise, and in sentencing Mr Couper, the chapter’s sergeant-at-arms, called its drug-related offending rather “mickey mouse”. That is not to downplay the seriousness of drug offending generally. But the involvement of Mr Couper, who was a man with a talent for self- advertisement rather than concealment, always doomed this enterprise to early detection and failure.

[7] The verdicts of the jury suggest that it saw your participation in the organised criminal group as confined to cannabis. I discharged you on a charge of cultivating that drug. But the jury convicted you of conspiring to sell cannabis cultivated by others. I discharged you on the charge of conspiring to supply cocaine. I was satisfied that no jury could safely have convict you of that. The jury acquitted you on the most serious charge you face which was conspiracy to supply methamphetamine. It could not agree on a further charge of conspiracy to supply Class C varieties of ecstasy. Today 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 Dewar

Details

AGLC: R v Dewar [2013] NZHC 2010
Case: [2013] NZHC 2010
Decision Date: 9 August 2013

CaseChat Overview and Summary

Garry Anthony Dewar has been convicted of participating in an organised criminal group, conspiracy to supply cannabis, and theft of electricity. The case was heard in the High Court of New Zealand, New Plymouth Registry. The court had to decide the appropriate sentence for Mr Dewar, considering his involvement in the criminal activities and his potential for rehabilitation. The legal issues included determining the appropriate starting point for sentencing, assessing Mr Dewar's culpability, and considering the overlap between the charges.

The court found that Mr Dewar's culpability was lower than that of his co-offenders, but still significant due to his role as the President of the Taranaki chapter of the Rebels motorcycle gang. The court decided that the appropriate starting point for the lead charge of participation in an organised criminal group was two years and two months' imprisonment. However, due to the short-term nature of the sentence, Mr Dewar was eligible for home detention. The court imposed a sentence of twelve months' home detention, with conditions including electronic monitoring, prohibition of alcohol and illicit drugs, and mandatory drug tests. The court also imposed conditions to allow Mr Dewar to continue working and to avoid contact with his co-offenders. The sentence aimed to balance the purposes of denunciation and deterrence with the potential for Mr Dewar's rehabilitation and reintegration into society.

The final orders of the court included a sentence of twelve months' home detention with specific conditions, and a direction that standard post-release conditions apply for a period of six months. The court declined to impose any special post-release conditions, finding no significant risk of further offending. The court encouraged Mr Dewar to take the opportunity to get his life back on track and respect the chance given to him.

Orders