R v Kamizona - [2012] NZHC 2868

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-070-2661 [2012] NZHC 2868

THE QUEEN

v

BRYCE THOMAS KAMIZONA

Hearing: 1 November 2012

Counsel: CA Harold for Crown
DL Bates for Offender

Judgment: 1 November 2012

SENTENCING NOTES OF TOOGOOD J

Solicitors:
CL Harold/J Rhodes, Ronayne Hollister-Jones Lellman, Tauranga: j.rhodes@rhjl.co.nz
DL Bates, Barrister, Tauranga: d.bates@xtra.co.nz

R V KAMIZONA HC ROT CRI-2012-070-2661 [1 November 2012]

[1] Bryce Thomas Kamizona, you appear for sentence having pleaded guilty to one charge of offering to supply a Class C drug, methcathinone, one charge of possession of methcathinone for supply and one charge of offering to supply the Class C drug cannabis to a person under 18. On each of those charges you are liable to a maximum penalty of eight years’ imprisonment.

[2] The offending, which you have acknowledged, arose in this way. In the early hours of 19 May 2012, Police went to the hot salt water pools on Adams Avenue, Mt Maunganui. You and another person were found in the pools after having climbed the fence. While talking to you, the Police noticed there was alcohol in your vehicle contrary to a liquor ban which was in force. When the can of alcohol was removed from the vehicle, Police found a small bag of tablets in the ashtray. The vehicle was then searched under the Misuse of Drugs Act 1975 and Police located
110 pills; 5.04 grams of cannabis; ten small plastic bags; a set of digital scales and a cannabis bong.

[3] You admitted that the pills were party pills which you were selling for $45 each. You told the Police that you intended in relation to both the pills and the cannabis to use some yourself, give some to friends and sell some. Tests confirmed the presence of methcathinone in the tablets.

[4] The District Court declined jurisdiction to sentence you because the maximum penalty which that court could impose on these charges was one year’s imprisonment. The case was then transferred to this Court for sentence.

[5] In sentencing you I am required first to establish the starting point which takes account of the nature of your offending itself. In that exercise I am required to look at guidelines provided by the Court of Appeal; the features of your offending, both aggravating and mitigating, if any, in comparison with the sentences imposed in
broadly similar cases.[1] I then look at whether or not the starting point reached on
[1] R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].

that basis should be adjusted to take account of any aggravating or mitigating features which relate to you personally. Personal considerations include looking at

your history of offending and also considering the prospects of your rehabilitation and what steps you have taken in that regard.

[6] In this case I pay particular regard to personal factors, which I will refer to in a moment. Once I have made an adjustment for the personal factors, I will…

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 Kamizona

Details

AGLC: R v Kamizona [2012] NZHC 2868
Case: [2012] NZHC 2868
Decision Date: 1 November 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Rotorua Registry, the defendant, Bryce Thomas Kamizona, appeared for sentencing following a guilty plea to charges of offering to supply methcathinone, possession of methcathinone for supply, and offering to supply cannabis to a person under 18. The court needed to determine an appropriate sentence for these drug-related offenses, considering both the nature of the offenses and personal mitigating factors.

The legal issues revolved around determining the appropriate starting point for sentencing, considering the nature and seriousness of the offenses, and then adjusting that starting point based on personal mitigating factors and the defendant’s plea of guilty. The court had to weigh the purposes of sentencing, particularly holding the defendant accountable, promoting a sense of responsibility, and assisting in rehabilitation. The hierarchy of sentences, as outlined in the Sentencing Act 2002, was also a consideration.

The court found that the defendant should be treated as a small-scale dealer for commercial gain, despite some personal use, leading to a starting point of 22-and-a-half months imprisonment. However, due to the defendant's guilty plea, a 25% discount was applied, reducing the sentence to 18 months imprisonment. Considering the defendant’s employment, compliance with bail conditions, and supportive family environment, the court opted for a community-based sentence. Thus, the defendant was sentenced to six months’ community detention, 18 months’ intensive supervision, and 300 hours of community work, all to be served concurrently.

The final orders were that the defendant be subject to a curfew from 7:00 pm to 7:00 am daily during the community detention period, and that he attend and complete any programs determined by his probation officer to address drug or alcohol issues.

Orders