R v Stainton - [2008] NZCA 370

IN THE COURT OF APPEAL OF NEW ZEALAND
CA377/2008
[2008] NZCA 370
THE QUEEN
v
DESMOND TAHATA STAINTON
Hearing:15 September 2008

Court:Robertson, Wild and Cooper JJ
Counsel:N J Utting for Appellant

T Epati for Crown

Judgment:17 September 2008 at 9.30 am

JUDGMENT OF THE COURT

A THE APPEAL AGAINST SENTENCE IS DISMISSED.
BThe appellant is to surrender himself to the Mangakino Police Station at noon on Monday 22 September 2008 to continue his term of imprisonment.

____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       The appellant pleaded guilty under s 153A of the Summary Proceedings Act 1957 to one charge of possession of cannabis oil for the purposes of supply and one charge of possession of cannabis for the purposes of sale. He appeals against an effective sentence of nine months’ imprisonment on the basis that it was manifestly excessive and that the Judge erred by imposing a term of imprisonment when he should have imposed a sentence of home detention.
[2]       The factual circumstances were described by Judge McGuire as follows:
[2]       . . . the Police executed a search warrant at your house in Mangakino on 10 March of this year. They found at your house four cannabis bullets and on top of the fridge, they found a tub of cannabis oil. Further, 29 tubs of cannabis oil were located in the master bedroom, a tub being the base of a tablet blister pack filled with cannabis oil which are common measures for selling cannabis oil at street level. The police found a computer at your address where records were kept of sales and money owed to you for drugs purchased. There was also a mobile phone used by customers to arrange purchases and that was also located by the police.
[3]       Your partner was spoken to. She said that both she and you sold cannabis bullets and tubs of cannabis oil from the address. You told the Police that you only sold cannabis bullets and that the cannabis oil was for your own use and that you had purchased 30 tubs from a friend. You said that you had been selling drugs for two to three months.

[3]       Mr Stainton’s case before the District Court Judge was advanced on the basis that, as he had received a positive pre-sentence report and had taken active steps to deal with his use of cannabis, the matter should be dealt with by way of a community based sentence.
[4]       The Judge, in response, said:
[6]       If other people were not affected by what you have been doing, Mr Stainton, I would be the first to encourage the rehabilitation that you have commenced upon and leave you in the community. But I am not prepared to do that because you have been spreading harm in your community by selling drugs and that is what the Court of Appeal has told us in Terewi, that the primary position in sentencing for drug dealing is deterrence. Mr Maze, 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 Stainton

Details

AGLC: R v Stainton [2008] NZCA 370
Case: [2008] NZCA 370
Decision Date: 17 September 2008

CaseChat Overview and Summary

The appellant in this case, Desmond Tahata Stainton, was convicted for possession of cannabis oil and cannabis with intent to supply and sell. He appealed against his sentence of nine months' imprisonment, arguing that it was excessive and that the sentencing judge should have imposed a sentence of home detention instead. The appeal was heard by the Court of Appeal of New Zealand, comprising Robertson, Wild, and Cooper JJ. The appellant was represented by N J Utting, and the Crown was represented by T Epati.

The court was required to determine whether the appellant's sentence was manifestly excessive and whether the sentencing judge had erred in imposing a term of imprisonment rather than home detention. The court also had to consider whether the sentencing judge had taken into account all relevant factors in exercising their discretion under the Sentencing Act. The appellant argued that he had taken steps to address his drug use and that home detention was an appropriate sentence. The Crown contended that the appellant's offending had caused harm to the community and that a custodial sentence was necessary to achieve deterrence.

The Court of Appeal found that the sentencing judge had considered all relevant factors and had exercised their discretion appropriately. The court noted that the appellant's offending had caused harm to the community, and that a custodial sentence was necessary to achieve deterrence and denunciation. The court also noted that home detention was unlikely to be granted in cases of drug dealing from the offender's home. The Court of Appeal found no basis to interfere with the exercise of discretion by the sentencing judge, and dismissed the appeal.

The Court of Appeal ordered that the appellant surrender himself to the Mangakino Police Station at noon on Monday 22 September 2008 to continue his term of imprisonment.

Orders