R v Read - [2014] NZHC 1651

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2011-070-7563

CRI-2012-070-1397 [2014] NZHC 1651

THE QUEEN

v

GARY JOHN READ

On the papers

Counsel:

R Jenson for Crown
P Mabey QC for the Prisoner

Judgment:

15 July 2014

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 15 July 2014 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

R v READ [2014] NZHC 1651 [15 July 2014]

Introduction

[1] On 9 August 2013, I sentenced Gary John Read to terms of imprisonment on

70 counts of importing pseudoephedrine and other drug dealing and related offences.1 The total effective end sentence of 11 years’ imprisonment was made up of a combination of cumulative and concurrent sentences. On the principal charges, I directed that Mr Read should serve a minimum period of five years and three months’ imprisonment before being eligible for parole. Counsel for Mr Read and for the Crown have asked me to recall some of the sentences to correct what they submit
is an unintended outcome of the sentences imposed.

[2] The sentences were imposed in the following terms:2

(a) On each of the 70 counts of importing pseudoephedrine you are sentenced to eight years’ imprisonment, to be served concurrently with each other. On each count, you shall serve a minimum period of five years and three months’ imprisonment.

(b) On the count of possession of methamphetamine for supply you are sentenced to three years’ imprisonment. This sentence is to be served cumulatively on the sentence of eight years for the importation of pseudoephedrine.

(c) On the count of possession of pseudoephedrine for supply you are sentenced to one year imprisonment, to be served concurrently with the other sentences.

(d) On the count of unlawful possession of a firearm, you are sentenced to six months’ imprisonment, to be served concurrently with the other sentences.

(e) On the count of participating in an organised criminal group you are sentenced to two years’ imprisonment, which is also to be served concurrently with the other sentences.

[3] At [66] I said:

This means your effective end sentence is one of eleven years imprisonment, of which you shall serve a minimum period of five years and three months’ imprisonment before being eligible for parole.

1 R v Read [2013] NZHC 2005.
2 At [65].

[4] That observation reflected the overall outcome I intended in imposing sentences in the terms cited at [2] above.

The error in the original sentences imposed

[5] Mr Mabey QC and Mr Jenson have filed a joint memorandum directing my attention to the view of the relevant statutory provisions which is taken by the Department of Corrections. If the Department is right, Mr Read will be required to serve a longer minimum period of imprisonment than was intended by the Court; namely, one of six years and three months.

[6] The Department has calculated Mr Read’s parole eligibility date on the basis of a five year and three months minimum period in…

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 Read

Details

AGLC: R v Read [2014] NZHC 1651
Case: [2014] NZHC 1651
Decision Date: 15 July 2014

CaseChat Overview and Summary

The case of R v Read involved Gary John Read, who was sentenced on 9 August 2013 to a total effective end sentence of 11 years' imprisonment on 70 counts of importing pseudoephedrine and other related drug offences. The sentence included a minimum period of five years and three months' imprisonment before being eligible for parole. The High Court of New Zealand, Tauranga Registry, was asked to recall the sentences to correct what was seen as an unintended outcome. Counsel for both the Crown and the prisoner agreed that the sentences imposed resulted in a longer minimum period of imprisonment than intended.

The legal issues before the court were whether it had the jurisdiction to correct the sentences and what procedure should be followed to impose the correct sentences. The court considered its statutory jurisdiction under section 180(1) of the Criminal Procedure Act 2011, as well as its inherent and implied powers to correct errors in its exercise of jurisdiction. The court concluded that while the sentences imposed were legally available, the unintended outcome created a substantial miscarriage of justice that could be corrected under the court's inherent and implied powers. The court also noted that an appeal would be unduly burdensome and impractical.

In accordance with its inherent and implied powers, the court directed that Gary John Read be brought before it in Auckland for re-sentencing in open court. The court emphasised the importance of conducting a proper hearing to impose the intended sentences, in line with section 182(1) of the Criminal Procedure Act. The court regretted the inconvenience to the parties but considered the correction of the unintended outcome to be in the interests of justice.

Orders