R v Enoka - [2016] NZHC 47

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000046 [2016] NZHC 49

BETWEEN
JACKSON JAMES TODD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 February 2016

Appearances:

S Saunderson-Warner for Appellant
C E R Power for Respondent

Judgment:

2 February 2016

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Dunedin
Copy to: S A Saunderson-Warner, Dunedin

TODD v NEW ZEALAND POLICE [2016] NZHC 49 [2 February 2016]

[1] On 17 November 2015 Mr Todd was sentenced to two years, two months imprisonment on a number of charges.1 He appeals against the sentence on the grounds that it is manifestly excessive.

[2] The offending on which Mr Todd was sentenced was recorded by the Judge as follows.

[3] First on 23 May 2015, Mr Todd drove a motor vehicle while the proportion of alcohol in his breath exceeded the allowable limit. He had 641 micrograms of alcohol per litre of breath.

[4] On 5 June Mr Todd breached a sentence of intensive supervision which had been imposed in January 2014. He failed to report as directed. On the same day, 5
June, he became involved in dealing in cannabis. Mr Todd faced a representative charge that between 5 and 12 June he was in possession of cannabis for the purposes of supply. An examination of text messages from his telephone revealed that he was regularly making arrangements to meet unknown persons at various secluded locations around Queenstown, at various times of the day.

[5] In addition to the representative charge Mr Todd faced a specific separate charge of possession of cannabis for supply relating to 14 June. At about1.15 am that day the police found him in the driver’s seat of his car outside a party they had been called to. When they approached Mr Todd they saw cannabis crumbs throughout the car and cannabis at his feet in a small zip up bag. The total amount of cannabis found pursuant to a search of Mr Todd’s car was 80 grams.

[6] On 14 June Mr Todd was driving in Cromwell in excess of the speed limit. When stopped by the police evidential breath testing procedures returned a concentration of 86 micrograms of alcohol per 100 millilitres of blood.

[7] Mr Todd then failed to answer District Court bail on 17 June 2015.

1 New Zealand Police v Todd [2015] NZDC 23195, per Judge M B T Turner.

[8] On 21 July 2015 Mr Todd was again found in a car. A search of the car located two grams of cannabis plant material together with a bong used for consuming cannabis.

[9] In structuring his sentence the Judge took the two charges of possession of cannabis for supply as lead offences. He noted the offending fell within category 2 of R v Terewi2 and took a starting point of two years, six months for that offending. He then uplifted that by three months to take account of previous drug offending (albeit not supply) and of the fact the offending…

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 Enoka

Details

AGLC: R v Enoka [2016] NZHC 47
Case: [2016] NZHC 47
Decision Date: 2 February 2016

CaseChat Overview and Summary

The High Court of New Zealand in Dunedin considered an appeal against a sentence imposed on Jackson James Todd (Mr Todd) by the District Court. Mr Todd was sentenced to two years and two months imprisonment for various offences, including driving under the influence of alcohol, breaching a sentence of intensive supervision, dealing in cannabis, and failing to answer District Court bail. The appeal was based on the contention that the sentence was manifestly excessive. The court needed to determine whether the sentence was materially incorrect or manifestly excessive or wrong in principle.

The court examined the evidence and the reasoning behind the District Court's decision to impose the sentence. The court found that the District Court had correctly identified the seriousness of Mr Todd's cannabis supply activities, justifying the starting point of two years and six months for the lead offences. The court further noted that the final sentence of two years and two months was within the appropriate range for the totality of Mr Todd's offending, and that the sentence could be considered generous given his personal circumstances and the strength of the evidence against him. The court concluded that there was no material error in the sentencing process, and dismissed the appeal.

The court upheld the sentence imposed by the District Court, affirming that the sentence was not manifestly excessive. The appeal was dismissed, and the original sentence stood.

Orders