R v Fatu Ca415/04 - [2005] NZCA 278

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA415/04
THE QUEEN
v
DWIGHT PERCIVAL FATU
Hearing:13 April 2005

Court:Anderson P, William Young and Chambers JJ
Counsel:P J Kaye for Appellant

D J Boldt and T Smith for Crown

Judgment:18 November 2005

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
REASONS
(Given by William Young and Chambers JJ)
Table of Contents

Para No

Introduction   [1]
GUIDELINES FOR SENTENCING FOR OFFENDING INVOLVING SUPPLY,
IMPORTATION OR MANUFACTURE OF METHAMPHETAMINE
Sentencing for methamphetamine offending prior to its                  [4]
reclassification as a Class A drug
The necessity to respond to the reclassification of  [7]
methamphetamine as a Class A controlled drug
The approach contended for by the Crown in cases of                  [11]
methamphetamine manufacture
Arguments advanced by Mr Kaye  [17]
Current sentencing practice in relation to methamphetamine       [20]
manufacture and importing
Proposed guidelines for offending involving the sale,                   [21]
importation and manufacturing of methamphetamine – general
Guidelines for offending involving the supply of  [33]
methamphetamine
Guidelines for offending involving the importation of                   [35]
methamphetamine
Guidelines for offending involving the manufacture of                  [37]
methamphetamine
Other considerations  [44]

The case at hand
Factual background  [47]
The sentences imposed  [58]
The argument for the appellant in this Court  [62]
The starting point  [63]
The discount for mitigating circumstances  [66]
Overall assessment  [67]
The result  [68]

Introduction
[1]        This is an appeal against sentences imposed by MacKenzie J following the appellant’s guilty pleas to charges of manufacturing and supplying methamphetamine, conspiring to manufacture methamphetamine, wilful neglect of children, and receiving stolen property. The offending occurred before and after the 30 May 2003 reclassification of methamphetamine from a Class B drug to a Class A drug. This case therefore provides an opportunity to review the guidelines for sentencing for methamphetamine offending provided to sentencing Judges in R v Wallace and Christie [1999] 3 NZLR 159 in light of the drug’s reclassification.
[2]        Given the significance of the issues posed by the case and the invitation from the Crown to deliver a guideline judgment, we invited further written submissions from counsel as to comparative material from other jurisdictions. This we have now received with gratitude and considered carefully.
[3]        The following section of this judgment (ie [4] - [46]) is of general application, albeit confined to offences involving methamphetamine. The balance of the judgment (from [47] on) deals with the circumstances of the appellant and the sentence imposed on him.
Guidelines for sentencing for offending involving supply, importation or manufacture of methamphetamine
Sentencing for methamphetamine offending prior to its reclassification as a Class A drug
[4]        In Wallace and Christie, this Court addressed sentencing for importing and manufacturing methamphetamine. After reviewing the then current sentencing patterns, the Court went on:
[30]     The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be…

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 Fatu Ca415/04

Details

AGLC: R v Fatu Ca415/04 [2005] NZCA 278
Case: [2005] NZCA 278
Decision Date: 18 November 2005

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the appellant Dwight Percival Fatu was appealing against sentences imposed following his guilty pleas to charges of manufacturing and supplying methamphetamine, conspiring to manufacture methamphetamine, wilful neglect of children, and receiving stolen property. The offending occurred both before and after the reclassification of methamphetamine from a Class B drug to a Class A drug on 30 May 2003. The primary issues in this case involved establishing appropriate sentencing guidelines for methamphetamine offending, particularly in light of the drug's reclassification as a Class A drug. The Court of Appeal sought to review the guidelines for sentencing for methamphetamine offending provided in the 1999 case of R v Wallace and Christie in light of the drug's reclassification.

The Court of Appeal proposed sentencing guidelines based on objective criteria, specifically the weight of the drug involved in the offending rather than anticipated monetary yields. The guidelines were structured in bands based on the quantity and purity of the methamphetamine involved. For supply cases, the Court adopted the following bands: (a) low-level supply (less than five grams) - two years to four years imprisonment; (b) supplying commercial quantities (five grams to 250 grams) - three years to nine years imprisonment; (c) supplying large commercial quantities (250 grams to 500 grams) - eight years to 11 years imprisonment; and (d) supplying very large commercial quantities (500 grams or more) - ten years to life imprisonment.

For methamphetamine manufacturing, the Court adopted the following bands: (a) manufacturing up to 250 grams - four years to 11 years imprisonment; (b) manufacturing large commercial quantities (250 grams to 500 grams) - ten years to 15 years imprisonment; and (c) manufacturing very large commercial quantities (500 grams or more) - 13 years to life imprisonment.

The Court of Appeal dismissed the appeal against sentence, concluding that the starting point set by MacKenzie J for the post-reclassification charges was not too high and that sufficient credit had been given for the appellant's guilty pleas and personal circumstances.

Orders