IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-5265
[2022] NZHC 1975
THE QUEEN
v
JAMES SMITH RICHARD HELLER BRITTANY TIMOKO
Hearing:
11 August 2022
Appearances:
D Young for the Crown
S R Norrie and K R Borich on behalf of T Cooper for Mr Smith J Gurnick for Mr Heller
R Laybourn for Ms Timoko
Judgment:
11 August 2022
SENTENCING NOTES OF POWELL J
Solicitors/Counsel:
Hamilton Legal, Hamilton (D Young)
T Cooper, SR Norrie and K R Borich, Auckland J Gurnick, Barrister, Hamilton
R Laybourn, Barrister, Hamilton
R v SMITH & ORS [2022] NZHC 1975 [11 August 2022]
[1] James Smith, Richard Heller and Brittany Timoko, you each come up for sentence today. You have all pleaded guilty to sentencing indications on a range of charges arising out of your respective involvement in an operation manufacturing and supplying methamphetamine in the Waikato region.1
[2] Each of you has pleaded guilty to representative charges of supplying methamphetamine.2 In addition:
(a)Mr Smith has pleaded guilty to one representative charge of manufacturing methamphetamine;3
(b)Mr Smith and Mr Heller have pleaded guilty to charges of possession of methamphetamine for supply;4
(c)Mr Smith (one charge) and Mr Heller (two charges) have pleaded guilty to participation in an organised criminal group;5 and
(d)Ms Timoko has pleaded guilty to a representative charge of offering to supply methamphetamine.6
[3] Mr Smith, at your sentence indication Venning J indicated a starting point of 12 years’ and four months’ imprisonment for your methamphetamine related offending would be appropriate.7 This included a four-month uplift for offending whilst on supervision. His Honour indicated that your sentence would be reduced by 20 per cent if you pleaded guilty.8
2 Misuse of Drugs Act 1976, ss 6(1)(c) and (2): maximum sentence of life imprisonment.
3 Misuse of Drugs Act 1976, ss 6(1)(b) and (2): maximum sentence of life imprisonment.
4 Misuse of Drugs Act 1976, ss 6(1)(f) and (2): maximum sentence of life imprisonment.
5 Crimes Act 1961, s 98A: maximum sentence of 10 years’ imprisonment.
6 Misuse of Drugs Act 1976, ss 6(1)(c) and (2): maximum sentence of life imprisonment.
7 R v Smith, above n 1, at [34].
8 At [35].
[4] Mr Heller, I indicated a starting point of 10 and a half years’ imprisonment for your offending.9 Due to a lack of information at the time of the sentence indication, I left open the possibility of an uplift to that starting point may be necessary because of previous methamphetamine related offending and whether you were on supervision at the time of the current offending. I did however indicate that any uplift ultimately imposed would not exceed three months’…
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 Smith [2022] NZHC 1975
Case
[2022] NZHC 1975
Decision Date
CaseChat Overview and Summary
In the High Court of New Zealand, Powell J sentenced James Smith, Richard Heller, and Brittany Timoko, who were involved in a methamphetamine manufacturing and supply operation in Waikato. The court determined starting points for each defendant based on the quantity of methamphetamine involved and their roles within the operation. Smith was sentenced to 12 years and 4 months, Heller to 10 years and 6 months, and Timoko to 4 years, with each sentence subject to discounts for personal circumstances and guilty pleas. After applying the discounts, Smith's sentence was reduced to 5 years and 6 months, Heller's to 4 years and 9 months, and Timoko's to 1 year and 7 months, which qualified her for home detention. Powell J declined to impose a minimum period of imprisonment for Smith and Heller, believing it was more beneficial for them to focus on rehabilitation. The court also dismissed several charges due to lack of evidence from the Crown.