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R v Stone

R v Stone

Case [2021] NZHC 636 26 March 2021

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-085-001094

[2021] NZHC 636

THE QUEEN

v

DAVID BRENT STONE

Hearing: 26 March 2021

Counsel:

G J Burston & T G Bain for the Crown V C Nisbet for Mr Stone

Sentencing:

26 March 2021

SENTENCING NOTES OF GWYN J

Introduction

[1] David Brent Stone, you appear for sentence having pleaded guilty to three charges in total: one representative charge of supplying methamphetamine;1 one charge of possession of methamphetamine,2 and one charge of failing to carry out obligations in relation to a computer system search.3

[2] The purpose of sentencing in your case is to hold you accountable for the harm you have done to the community through your offending; to promote a sense of responsibility for, and acknowledgment of, that harm; to denounce and deter the

1      Misuse of Drugs Act 1975, s 6(1)(c) and 6(2)(a) and Crimes Act 1961, s 66; maximum penalty life imprisonment.
2      Section 7(1)(a) and (2); maximum penalty six months’ imprisonment or $1,000 fine.
3      Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.

R v STONE [2021] NZHC 636 [26 March 2021]

criminal conduct; to protect the community; and to assist in your rehabilitation and reintegration into society.4

[3] When considering your sentence I am bound by the Sentencing Act 2002. That law sets out the principles and purposes of sentencing.5 In each case, a Judge looks at the Sentencing Act and then looks at what the offender has done and decides how to give effect to the Sentencing Act in the particular circumstances of the case.

[4] In sentencing you today, I will first set out your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I set a starting point based on the offending. At that stage I will talk about a case called Zhang,6 which is what we call a “guideline” judgment for offences involving methamphetamine, and other cases which are similar. Second, I apply uplifts and discounts to reflect your personal aggravating and mitigating circumstances.

The offending

[5] All three charges result from two police operations – Operation Superdry in relation to Wellington-based offending, and Operation Maddale in relation to Auckland-based offending. Your co-offender, Mr McMillan, was the main individual targeted in the Wellington-based offending. You were a close associate of Mr McMillan, and assisted his drug business in various ways. Mr McMillan pleaded guilty to some of the charges he faced for his role in the drug business, and was found guilty on the remaining charges following a five week jury trial (the trial).

[6] The supplying methamphetamine charge arises from activity between 27 February and 2 May 2019. Mr McMillan was purchasing large quantities of methamphetamine from a supplier in Auckland, by directing your co-offenders (Mr Philip, Ms Hayman, Mr Minns and Mr Paulo) to transport methamphetamine in cars with purpose-built hidden…

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 Stone

Details

AGLC: R v Stone [2021] NZHC 636
Case: [2021] NZHC 636
Decision Date: 26 March 2021

CaseChat Overview and Summary

The case of R v Stone before the High Court of New Zealand in Wellington involved the sentencing of David Brent Stone, who had pleaded guilty to three charges: supplying methamphetamine, possessing methamphetamine, and failing to carry out obligations in relation to a computer system search. The charges arose from his involvement in a methamphetamine supply operation, where he acted as a close associate to the main offender, Mr McMillan. The court was tasked with determining an appropriate sentence that would reflect the harm caused by Stone's actions, promote accountability, deter criminal conduct, protect the community, and assist in Stone's rehabilitation.

The primary legal issue was to determine the appropriate starting point for sentencing, considering the quantity of methamphetamine involved and Stone's role in the operation. The court referred to the Court of Appeal decision in Zhang v R, which established sentencing bands based on the quantity of drugs involved. Stone's role in the operation was also a significant consideration, as a lesser role could result in a sentence within a lower band. The court had to weigh various factors indicating whether Stone played a lesser or significant role, such as his knowledge of the scale of the operation, his motivations, and his financial gain.

The court concluded that Stone played a lesser role in the methamphetamine business, as he performed a limited function under direction, was motivated primarily by his addiction, and had little or no financial gain. The court adopted a starting point of three years and six months' imprisonment for the charge of supplying methamphetamine. After applying discounts for Stone's addiction issues, difficult background, and his guilty plea, the court determined an end sentence of one year and eleven months' imprisonment. However, given the length of the sentence and Stone's prospects for rehabilitation, the court converted the sentence to home detention, allowing him to continue his work and study.

The final orders included sentencing Stone to 11 months' home detention for the charge of supplying methamphetamine, two months' home detention concurrently for the possession charge, and one month's home detention concurrently for the computer system search charge. Additionally, the court ordered the destruction of all drug-related items and controlled drugs seized during the investigation.

Orders