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IN THE COURT OF APPEAL OF NEW ZEALAND
CA559/07 [2008] NZCA 41
THE QUEEN
v
JOSEPH COLIN HILL
Hearing:7 February 2008
Court:Glazebrook, Hammond and Arnold JJ
Counsel:A Speed for Appellant
A Markham for Crown
Judgment:29 February 2008 at 12 pm
JUDGMENT OF THE COURT
A The appeal is allowed.
B The sentence of two years three months imprisonment is quashed.
CWe substitute a sentence of 12 months home detention and 200 hours community work. The sentence of home detention is subject to the following special conditions. The appellant is to:
(a)Reside at 33 Halberg Place, Papakura, Auckland, or such other place as his probation officer approves;
(b)Complete the Community Alcohol and Drug Service Intensive Outpatient programme (or an equivalent programme as directed by his probation officer);
(c)Undertake relationship and grief counselling as directed by his probation officer;
(d)Undertake such employment or employment training as his probation officer directs;
in each case, to the satisfaction of his probation officer.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1] Following a jury trial in the High Court before Williams J, the appellant was convicted on one count of possession of methamphetamine, a class A controlled drug, for the purpose of supply. He was sentenced to a term of imprisonment of two years three months.
[2] The appellant appeals against his sentence. Mr Speed raises two points on his behalf:
(a)The Judge placed the case within band two of R v Fatu [2006] 2 NZLR 72 (CA) and took a starting point of three years six months. This was too high as the case properly fell within band one;
(b)In light of the changes to the home detention regime effected by the Sentencing Amendment Act 2007, the Judge should have sentenced the appellant to 12 months home detention.
Factual background
[3] The police executed a search warrant in respect of a house occupied by members of the Headhunters gang. The appellant was living there at the time. In his bedroom the police found a tin under a cushion, in which they found two snaplock bags containing 6.3 grams of methamphetamine and seven empty snaplock bags (of the type used as point bags). In addition, a further 90 empty snaplock bags were found in the appellant’s backpack in his bedroom. The 6.3 grams of methamphetamine had a street value of approximately $6,300 if sold in point bags.
[4] Under another cushion in the appellant’s bedroom, the police found a tin containing $4,360. In addition, the appellant had a further $1,225 in his wallet. Six Vodafone SIM cards were also found in the bedroom. Finally, there was a television monitor in the appellant’s bedroom, which was linked to surveillance equipment covering the exterior of the premises.
[5] The appellant gave evidence at trial. He said the methamphetamine was for his own use. He said that he was a heavy user at that time. He denied that he had supplied drugs in the past,…
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.
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Details
AGLC
R v Hill [2008] NZCA 41
Case
[2008] NZCA 41
Decision Date
CaseChat Overview and Summary
Joseph Colin Hill appeals against his sentence for possession of methamphetamine for the purpose of supply. The appellant was sentenced to two years and three months imprisonment by Williams J. The Court of Appeal, Glazebrook, Hammond and Arnold JJ, heard the appeal on 7 February 2008 and gave their judgment on 29 February 2008. The appellant's counsel argued that the case fell within band one of the sentencing guidelines in R v Fatu, and that the judge should have sentenced the appellant to 12 months of home detention instead of imprisonment. The Crown argued that the sentence was appropriate. The Court of Appeal found that the sentence of imprisonment was within the appropriate range, but that home detention was the appropriate sentence in this case. The Court of Appeal quashed the sentence of imprisonment and substituted a sentence of 12 months home detention and 200 hours of community work, subject to certain conditions.