R v Hughes - [2007] NZCA 73

IN THE COURT OF APPEAL OF NEW ZEALAND
CA444/06
[2007] NZCA 73
THE QUEEN
v
MICHAEL PATRICK HUGHES
Hearing:8 March 2007

Court:Ellen France, John Hansen and Williams JJ
Counsel:C Smith for Appellant

D J Boldt for Crown

Judgment:19 March 2007 at 11 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
REASONS OF THE COURT
(Given by Williams J)
Issue
[1]       On 27 October 2006 the appellant, Mr Hughes, was sentenced by Gendall J to two years six months’ imprisonment following pleading guilty to one count of possessing methamphetamine for supply. The plea was entered in the District Court, it declined jurisdiction and remanded him for sentence in the High Court.
[2]       He appeals to this Court on the ground that the sentence was manifestly excessive.
Facts
[3]       When Police executed a search warrant at the appellant’s premises on 11 August 2006, he endeavoured to secrete a package on his person. Searched, it was found to contain five bags each containing a “point” of methamphetamine. He was also in possession of a notebook showing signs of being a “tick list”. He had $100 in cash.
[4]       An agreed statement of facts was prepared and it was on that basis that Mr Hughes pleaded guilty. He also told the probation officer he agreed with its contents. Those documents contained an acknowledgement by the appellant that he “sells each bag for around $80 a bag to a couple of close friends”.   It said he “has been selling for a couple of months” and that “he would sell the methamphetamine whenever he needed money as he is not on the benefit”.
Remarks on sentencing
[5]       Gendall J noted that in the pre-sentence report and in a specially obtained alcohol and drug assessment, the appellant was shown to have been a user of a range of class A and class B drugs over about 20 years with a large number of convictions from 1982 onwards including about 16 convictions for drug-related offending. They included possession of methamphetamine in 2001, 2002 and 2004. The appellant had been sentenced to a number of terms of imprisonment, the longest of which was one year four months in 2003. The criminal history and the previous drug offending were aggravating features. The Judge treated the guilty plea as a mitigating feature.
[6]       The Judge held the appellant fell into the low level category defined in R v Fatu [2006] 2 NZLR 72 at [34] (CA) and, from the indicated range of two to four years’ imprisonment, chose three years after referring to a number of sentencing decisions. He reduced the starting point by one-third for the guilty plea but increased it by six months’ imprisonment for the aggravating features to reach the sentence imposed.
Submissions
[7]       For the appellant, Mr Smith stressed the early plea, lack of aggravating features and the appellant’s long-standing drug addiction and submitted the offending was no more than occasional sales to close friends. He did, however, acknowledge the appellant telling the probation…

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 Hughes

Details

AGLC: R v Hughes [2007] NZCA 73
Case: [2007] NZCA 73
Decision Date: 19 March 2007

CaseChat Overview and Summary

In the case of R v Hughes, Michael Patrick Hughes appealed a sentence imposed by Gendall J in the High Court, following his guilty plea to possessing methamphetamine for supply. Hughes' appeal was against the sentence being manifestly excessive. The sentencing involved a significant amount of methamphetamine, a notebook indicative of drug dealing, and cash on his person at the time of arrest. Hughes had a lengthy criminal history, with multiple convictions for drug-related offences, including possession of methamphetamine.

The legal issues before the Court of Appeal were whether the sentence was appropriate given Hughes' criminal history, the nature of his offending, and the mitigating factor of his early guilty plea. Hughes argued that his offending was minimal and primarily involved occasional sales to friends, while the Crown maintained that his actions constituted a small-scale commercial drug operation.

The Court of Appeal, in dismissing the appeal, found that the starting point, adjustments for aggravating and mitigating factors, and the final sentence were all within the appropriate range. They highlighted that Hughes' actions, while on a small scale, still involved obtaining and selling methamphetamine. The Court considered the precedent in R v Conway, where a similar sentence was upheld, and determined that the sentence was justified given Hughes' history and the circumstances of the offence.

The final order of the Court was that the appeal against sentence was dismissed, affirming the sentence imposed by Gendall J.

Orders