R v Duncan - [2009] NZCA 18

IN THE COURT OF APPEAL OF NEW ZEALAND
CA709/2008
CA9/2009
[2009] NZCA 18
THE QUEEN
v
RUSSELL WAYNE DUNCAN
Hearing:12 February 2009

Court:Robertson, Hugh Williams and Miller JJ
Counsel:T Sutcliffe for the Appellant

N P Chisnall for Crown

Judgment:18 February 2009 at 11.30 am

JUDGMENT OF THE COURT

Both appeals are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Introduction
[1]       Mr Duncan was sentenced after trial in the District Court at Hamilton to three years and three months imprisonment on one charge of possession of cannabis for sale: DC HAM CRI 2008-068-000075 12 August 2008. He was acquitted on a charge of supplying cannabis. Judge Burnett subsequently ordered forfeiture of $10,500 in cash that he had been carrying in his van with the cannabis. He appeals, against both the sentence as being manifestly excessive and against forfeiture on the basis that no grounds were made out.
Factual summary
[2]       Mr Duncan’s van was stopped shortly after midnight on 19 June 2007 at Taumarunui. A strong smell of cannabis led to a search, in which a variety of drug-related items were found. They included 2.77 pounds (1.26 kilograms) of cannabis and the cash, which was found, in bundles of $100, $50, and $20 notes in a cooler-bag on the back seat. The estimate of the value of the cannabis was between $13,850 and, if sold at retail by way of “tinnies”, up to $21,000. Mr Duncan was visiting relatives in the Waikato at the time.
Litigation in the District Court
[3]       Mr Duncan lives in Alexandra, where he pleaded guilty in May 2008 to various charges relating to items found during the search. There were two charges of possession of utensils for methamphetamine, one each of possession of cannabis material, cannabis oil and cannabis resin, one of possession of ecstasy, one of possession of cannabis resin and another of possession of utensils for cannabis. He further pleaded guilty to possession of cannabis found at his home on a subsequent search. He was sentenced to one year’s supervision with special conditions and ordered to perform 200 hours community work.
[4]       The Judge had before her a pre-sentence report indicating a number of unsatisfactory aspects about Mr Duncan. He was aged 41 at the time, had a long history of offending since 1972, including seven previous convictions for cannabis offending, and had no intention of abstaining from cannabis use. However, he had agreed to attend an assessment and the probation officer noted that he has a strong work ethic and is committed to the care of his children and his seriously-ill father in law.
[5]       It was not in dispute that the offending fell within category two of R v Terewi [1999] 3 NZLR 62. The Judge did not accept a submission that because some of the cannabis was said to be for Mr Duncan’s own use a starting point at the lower end of that category should be adopted. She regarded his culpability as somewhat high. After referring…

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 Duncan

Details

AGLC: R v Duncan [2009] NZCA 18
Case: [2009] NZCA 18
Decision Date: 18 February 2009

CaseChat Overview and Summary

The case of R v Duncan involved the appellant, Russell Wayne Duncan, who was appealing against his sentence and the forfeiture of $10,500 in cash found in his possession at the time of his arrest. Duncan was arrested and charged with possession of cannabis for sale, among other drug-related charges. He was acquitted of supplying cannabis but was sentenced to three years and three months imprisonment for the possession charge and ordered to forfeit the cash under the Misuse of Drugs Act 1975.

The legal issues before the Court of Appeal were twofold: first, whether the sentence imposed by the District Court was manifestly excessive; and second, whether the grounds for forfeiture of the cash were made out. The appeal against the sentence argued that the starting point for the sentence was too high and that there were no mitigating factors considered by the sentencing judge. The appeal against forfeiture argued that the cash was not intended for the facilitation of an offence against the Misuse of Drugs Act and that the trial record suggested it was more likely the proceeds of previous sales.

The Court of Appeal found that the starting point for the sentence was appropriate given the circumstances of the case, including the quantity of cannabis involved and Duncan's history of drug-related offending. The Court noted that the sentence imposed was within the range of penalties for possession of cannabis for sale and that Duncan's previous convictions and ongoing use of cannabis were significant aggravating factors. Regarding the forfeiture, the Court upheld the Judge's finding that Duncan had the cash in his possession for the purpose of facilitating the commission of an offence against the Misuse of Drugs Act, despite the jury's acquittal on the charge of supplying cannabis. The Court concluded that the statutory grounds for forfeiture were met and affirmed the Judge's decision.

In conclusion, the Court of Appeal dismissed both appeals. The sentence imposed on Duncan was upheld as appropriate, and the forfeiture of the cash was confirmed based on the Judge's findings. The decision underscores the importance of considering both the seriousness of the offence and the offender's history in sentencing, as well as the application of the Misuse of Drugs Act in forfeiture proceedings.

Orders