R v Lines - [2012] NZHC 3215

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-009-002017 [2012] NZHC 3215

REGINA

v

JAMES RICHARD LINES

Hearing: 29 November 2012

Appearances: K B Bell for Crown
M M Cole for Prisoner

Judgment: 29 November 2012

SENTENCING REMARKS OF FOGARTY J

[1] Mr Lines, you appear for sentence having pleaded guilty to possession of equipment with intent pursuant to ss 12(2)(a) and 12A(3)(b) of the Misuse of Drugs Act, possession of materials and possession of a precursor material. Essentially you have pleaded guilty to the possession of materials for making methamphetamine which were found in a search of your home. The paraphernalia and the size of the chemicals indicate that it was a small scale operation. You might have been able to pass it off as a manufacture for your own use. You were, however, honest and admitted you have an addiction to cannabis but say that you were party to the manufacture of methamphetamine by others in order to pay off some debts.

[2] The Crown has suggested in this case a starting point for the offending of two and a half years based on the authorities. That is the appropriate starting point on my
own reading of the authorities.

R V JAMES RICHARD LINES HC CHCH CRI-2012-009-002017 [29 November 2012]

[3] Your counsel, Ms Cole, has argued for a home detention sentence based on the recent decision of the Court of Appeal in R v Rawiri.[1] Rawiri distinguished an earlier decision of the Court of Appeal in R v Anderson[2] of which I was a member of the Court. In Anderson we said that essentially if it is methamphetamine production you go to jail. Rawiwi distinguished Anderson on the basis that in Rawiri there was no commercial element at all. Because in your case there is some degree of
commercial element I think the Anderson decision applies to you.

[1] R v Rawiri [2011] 25 CRNZ 254

[2] R v Anderson [2007] NZCA 146

[4] Therefore I do the analysis of what a prison sentence would be for you. In your particular case I think, I have regard to: the second positive report from the Probation Officer recommending home detention; your frank acknowledgement that you are a member of the Mongrel Mob and you do not intend to walk away from those social relationships; and I do accept that it is simply wrong to assume because a person is a member of the Mongrel Mob they are engaged in criminal activity. I am impressed by the testimonial from your partner, and also the job offer that I have received this morning.

[5] Encouraged by those I think that the line of reasoning of Chisholm J in the recent case of R v Gordon[3] in May of this year indicates that I should do two things in calculating a prison sentence. Firstly, as I must under Hessell v R,[4] reflect a credit for a plea of guilty. The second is that it is in the circumstances…

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 Lines

Details

AGLC: R v Lines [2012] NZHC 3215
Case: [2012] NZHC 3215
Decision Date: 29 November 2012

CaseChat Overview and Summary

The case of Regina v James Richard Lines involved the defendant being sentenced for possession of equipment with intent, possession of materials, and possession of a precursor material under the Misuse of Drugs Act. The defendant pleaded guilty to possession of materials for making methamphetamine, found during a search of his home. The Crown suggested a starting point for sentencing of two and a half years, which the judge accepted. The defendant's counsel argued for a home detention sentence, citing the Court of Appeal decision in R v Rawiri. However, the judge considered the commercial element in the defendant's case and concluded that the decision in R v Anderson applied, which generally mandated a prison sentence for methamphetamine production.

The legal issues in this case were whether the defendant should receive a home detention sentence or a prison sentence, and if so, the appropriate length of the sentence. The judge considered several factors, including the defendant's plea of guilty, his membership in the Mongrel Mob, and the positive aspects of his life, such as the support of his partner and a job offer. The judge decided to reduce the starting point for sentencing from 24 months to 20 months, reflecting the credit for a guilty plea and the positive aspects encouraging a rehabilitative sentence. After considering the time the defendant had already spent in custody, the judge concluded that the defendant had served the equivalent of a 20-month prison sentence.

The High Court of New Zealand, Christchurch Registry, found that the defendant had effectively served the equivalent of a 20-month prison sentence through time spent in custody and electronic monitoring bail. The judge released the defendant under a term of six months' supervision, during which the defendant must participate in assessment for alcohol and drug use and any recommended intervention to the satisfaction of the Probation Officer. The defendant's release conditions were intended to address his cannabis habit and support his efforts to make positive changes in his life.

Orders