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IN THE SUPREME COURT OF NEW ZEALAND
SC 14/2008 [2008] NZSC 69
JONATHAN NUKI LUMMIS JARDEN
v
THE QUEEN
Hearing:27 May 2008
Court:Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ
Counsel:R G Glover for Appellant
A Markham and M E Ball for Crown
Judgment:28 August 2008
JUDGMENT OF THE COURT
A APPEAL ALLOWED.
B SENTENCE OF THREE YEARS’ IMPRISONMENT QUASHED.
C SENTENCE OF TWO YEARS SIX MONTHS’ IMPRISONMENT SUBSTITUTED.
REASONS
(Given by Wilson J)
Introduction
[1] Mr Jarden appeals by leave against a sentence of three years’ imprisonment imposed on him after he had been found guilty by a jury on one count of conspiring to supply methamphetamine. Leave to appeal was granted not because the appeal raised any question of general importance but on the unusual ground that the Court of Appeal appeared to have applied the wrong guideline judgment, and taken into account matters which should not have been given weight, when dismissing an appeal by Mr Jarden against his sentence.[1] It was therefore necessary for this Court to consider whether a miscarriage of justice may have resulted.
[1] [2008] NZCA 48 (William Young P, Chambers and Robertson JJ).
[2] Following the grant of leave to appeal on 9 May, an urgent fixture was allocated for a hearing on 27 May in an attempt to ensure that the appeal was not nugatory. However, at the commencement of the hearing, Mr Glover advised the Court that Mr Jarden was to be released on parole the following day. Accordingly the only practical effect of any reduction in his sentence would be to reduce the time during which he could be recalled to prison and be subject to parole conditions.
[3] In sentencing the appellant, Fogarty J made the following remarks:
[1] Jonathan Jarden, you have been found guilty by a jury of conspiracy to supply methamphetamine. There was overwhelming evidence before the jury that you were buying methamphetamine from Deborah Gordon-Smith immediately after she was taking a supply from Sui. As a purchaser of methamphetamine it was either for your own use or for on-supply. There was also evidence that you were trading to a degree in cannabis with the defendant Smith. Your counsel says that you may have been dealing in ecstasy. You were, to a degree, at least, a drug dealer in cannabis and the Crown agrees with that proposition.
[2] The question that I need to judge is your culpability in respect of the offence of conspiracy to supply methamphetamine. Your counsel submit that the only thing as a sentencing Judge I can be sure of is that the jury found that on at least one occasion you had agreed with Gordon-Smith to purchase the methamphetamine for on-supply to a customer. There are certainly difficulties in trying to work out your degree of dealing. On the authorities, to some extent I as a Judge can rely on my own judgment of the evidence.
[3] I am…
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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AGLC
R v Jarden [2008] NZSC 69
Case
[2008] NZSC 69
Decision Date
CaseChat Overview and Summary
In the Supreme Court of New Zealand, Mr. Jonathan Nuki Lummis Jarden appeals against his sentence of three years' imprisonment imposed after being found guilty of conspiring to supply methamphetamine. Leave to appeal was granted not due to the appeal's importance but because the Court of Appeal appeared to have applied the wrong guideline judgment and considered irrelevant matters when dismissing Mr. Jarden's previous appeal against his sentence. The court must consider whether a miscarriage of justice may have resulted.
The legal issues the court had to decide were whether the sentence was manifestly excessive due to the appellant overstating his role, the failure to recognize that the charge was of conspiracy to supply rather than supply, and whether the tragic personal circumstances of Mr. Jarden should have been taken into account in sentencing. The court concluded that the sentence of three years' imprisonment was appropriate as a starting point but should have been reduced by six months to reflect the tragic situation in which Mr. Jarden found himself.
The court's reasoning was that Mr. Jarden's personal circumstances, particularly the loss of his partner and their unborn child, were so extreme that they should have been taken into account in sentencing. While personal circumstances are usually not given much significance in drug sentencing, in this case, they warranted a modest reduction in the sentence. The court allowed the appeal, quashed the sentence of three years' imprisonment, and substituted a sentence of two years and six months' imprisonment.
The final orders were that the appeal was allowed, the sentence of three years' imprisonment was quashed, and a sentence of two years and six months' imprisonment was substituted.