Counsel: M E Ball for Appellant D G Young for Respondent (CA892/2010) J C Down and E Chan for Respondent (CA893/2010)
Judgment: 31 May 2011 at 3.30 pm
JUDGMENT OF THE COURT
A Leave is granted to the Solicitor-General to appeal.
B The appeal is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
The Solicitor-General applies for leave to appeal against community-based sentences imposed by Judge Kiernan in the District Court at Auckland on Leon Rawiri and Amanda Keyser in December 2010.[1] Both offenders had pleaded guilty to charges under s 12A of the Misuse of Drugs Act 1975 of possessing precursor substances and material and, in Mr Rawiri’s case, equipment with the intention that they be used in manufacturing methamphetamine.
[1]R v Rawiri DC Auckland CRI-2009-004-26604, 8 December 2010.
Ms Ball for the Solicitor-General submits that the community based sentences were wrong in principle or manifestly inadequate for this type of offending.
Facts
The facts are not in dispute. In September 2009 the police executed a search warrant at an address in Wellington which the respondents were occupying together. There they discovered the remains of a clandestine laboratory containing a number of items of equipment and materials used in manufacturing methamphetamine. Included were precursor substances such as pseudoephedrine hydrochloride, neurofen tablets, toluene and sulphuric acid. The equipment was standard issue for the purposes of distilling the substances into methamphetamine.
Mr Rawiri was then aged 36 years. He had a number of previous convictions mainly of a minor nature. Relevantly, he had been convicted of cultivating cannabis in 2001 and 2007. On the first occasion he was sentenced to non-residential periodic detention for four months; on the second he was sentenced to 300 hours of community work. He was initially a recreational user of methamphetamine.
Ms Keyser was then aged 30 years. She was a first offender. She was a South African national who had emigrated to New Zealand with her family in 2005. After the breakdown of her marriage she formed a new relationship with Mr Rawiri. In the interim she had developed a methamphetamine addiction. Mr Rawiri also became addicted to methamphetamine.
District Court
Judge Kiernan noted that, while the police did not find any methamphetamine, all the ingredients necessary for manufacturing the drug were present, and that the offending was “... as close to you can get to [manufacturing methamphetamine]” without actually manufacturing it.[2] She also noted the Crown submission that starting points of two years imprisonment and greater than three years were appropriate for Ms Keyser and Mr Rawiri respectively but that home detention was the lowest level of sentence available.[3]
[2]At [19].
[3]At [16]–[20].
Home detention was not an option because both Ms Keyser and Mr Rawiri were then…
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 Rawiri [2011] NZCA 244
Case
[2011] NZCA 244
Decision Date
CaseChat Overview and Summary
The case before the New Zealand Court of Appeal involved an appeal by the Solicitor-General against the community-based sentences imposed by Judge Kiernan in the Auckland District Court on Leon Rawiri and Amanda Keyser. Both had pleaded guilty to charges under section 12A of the Misuse of Drugs Act 1975 for possessing precursor substances and equipment with the intention of using them to manufacture methamphetamine. The Crown argued that the sentences of intensive supervision and community work were wrong in principle and manifestly inadequate for the nature of the offending.
The legal issues before the Court were whether the community-based sentences imposed by the District Court were appropriate, and if not, whether the appeal should be dismissed or allowed. The Court considered the hierarchy of sentences outlined in the Sentencing Act 2002, particularly the principles of rehabilitation and the imposition of the least restrictive outcome appropriate in the circumstances. The Court also noted that Parliament intended to increase the range of sentencing alternatives available to judges, placing community-based sentences well up the hierarchy, immediately below home detention.
The Court found that the sentences imposed by Judge Kiernan were appropriate, given the circumstances of the offenders. The Judge had balanced the principles of deterrence and denunciation with the rehabilitative needs of the offenders. The Court observed that the absence of a commercial element in the drug-related offending allowed for sentencing flexibility, and that the lengthy periods of community work served as an expression of society's denunciation and held the offenders accountable for their crimes. The Court was satisfied that the Judge had carefully considered all relevant principles and purposes when imposing the sentences.
Leave is granted to the Solicitor-General to appeal, but the appeal is dismissed.