R v Dodd

Case [2013] NZCA 270 2 July 2013

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA589/2012
[2013] NZCA 270

BETWEEN	THE QUEEN Appellant
AND	KELLY RICHARD DODD Respondent

CA590/2012
AND BETWEEN	THE QUEEN Appellant
AND	MATTHEW KAWENA SMITH Respondent

Hearing:	17 June 2013
Court:	Stevens, Courtney and Dobson JJ
Counsel:	J M Jelas for Appellant H D M Lawry for Respondent Dodd K C Bailey for Respondent Smith
Judgment:	2 July 2013 at 10.30am

JUDGMENT OF THE COURT

AThe Solicitor-General is granted leave to appeal against sentence in each case.
BThe appeals against sentence are allowed and the sentences set out below are imposed.
CIn the case of Kelly Richard Dodd the sentences of five years and four months imprisonment on the three charges of conspiring to supply a precursor substance are quashed and in their place sentences of six years and two months imprisonment are substituted. All other sentences are confirmed including their concurrent effect.
DIn the case of Matthew Kawena Smith the sentence of four years and four months imprisonment on the charge of conspiring to manufacture methamphetamine is quashed and in its place a sentence of five years and two months imprisonment is substituted. All other sentences are confirmed including their concurrent effect.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

The Solicitor-General applies for leave to appeal against the sentences imposed on the respondents in the High Court at Whangarei on 24 August 2012 by Woodhouse J.[1] Both respondents pleaded guilty to numerous charges of serious drug offending involving class A, class B and class C controlled drugs. Mr Kelly Dodd was sentenced to five years, four months imprisonment. Mr Matthew Smith was sentenced to four years, four months imprisonment.
[1]R v Clarke [2012] NZHC 2146.
The appeal is advanced on the basis that the uplifts of 18 months imprisonment imposed on each respondent for additional offending were inadequate and have resulted in end sentences that are manifestly inadequate.

Background

The respondents were apprehended as a result of a police investigation into drug offending by members and associates of the Tribesman motorcycle gang. The intelligence‑gathering phase of the operation took place between April and July 2009. The interception phase ran from 31 July to 27 September 2009. The operation was terminated on 28 October 2009, when both respondents, along with a number of associates, were arrested.
The trial was originally allocated for May 2011, but this was later moved to February 2012. Mr Smith pleaded guilty to some counts towards the end of 2011 and to the remaining counts after the scheduled commencement date of the trial. Mr Dodd pleaded guilty after the scheduled commencement date of the trial.
In summary, Mr Dodd was sentenced for the following offending:

Offence Quantity/value

Conspiring to supply precursor substance (ContacNT) (x 3) 33 sets with potential yield of 1.49 – 2.23 kg of methamphetamine

Conspiring to supply methamphetamine 14 grams

Offering to supply methamphetamine (x 7) 3.75 grams

Offering to sell cannabis (x 9) Cannabis to value $1,200.00. Quantities range from one…

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 Dodd

Details

AGLC: R v Dodd [2013] NZCA 270
Case: [2013] NZCA 270
Decision Date: 2 July 2013 at 10.30am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals by the Solicitor-General against the sentences imposed on Kelly Richard Dodd and Matthew Kawena Smith for serious drug offences. Both respondents were involved in drug activities associated with the Tribesman motorcycle gang. The Court of Appeal found that the sentences imposed were manifestly inadequate and allowed the appeals. The Court substituted new sentences of six years and two months imprisonment for Dodd and five years and two months imprisonment for Smith.

The primary issue before the Court of Appeal was whether the original sentences imposed by the High Court were adequate in light of the totality of the offending. The Court of Appeal found that the High Court had erred in imposing uplifts of 18 months for additional offending, which failed to adequately reflect the criminality of the additional offences and the overall culpability of each respondent. The Court substituted new sentences, which took into account the appropriate notional starting points for the additional offending and the aggravating factors of the respondents' roles and involvement in organised criminal activity. The Court of Appeal emphasised that the totality principle requires that the total sentence must represent the overall criminality of the offending and the offender, and that this must be achieved in a flexible manner.

Orders