R v Towgood

The Court of Appeal of New Zealand heard an appeal against conviction and sentence brought by Duane Brian Towgood, who was convicted of three drug offences after a jury trial. The appeal against conviction was on the charge of attempted manufacturing of methamphetamine, while the appeal against sentence was on the ground that it was manifestly excessive. The Crown did not cross-appeal against the acquittal on the manufacturing charge. The appellant was acquitted of manufacturing methamphetamine but convicted of the attempt, while a co-accused was acquitted on all charges. The appeal against conviction was based on the grounds that the attempted manufacturing charge should not have been left to the jury and that the Judge’s direction to the jury on that charge was inadequate.

The Court concluded that the direction to the jury was inadequate because it did not clearly focus on the two steps of intention to manufacture methamphetamine and the doing of an act or acts for the purpose of achieving that object. It also did not identify the act or acts said to have been taken by the appellant in pursuance of the objective of manufacturing methamphetamine, nor did it provide direction on the issue of proximity. The Court concluded that the inadequacy of the direction gave rise to a real risk of a miscarriage of justice and allowed the appeal against conviction on the charge of attempted manufacturing of methamphetamine. The Court ordered a retrial on that charge and allowed the appeal against sentence, substituting a sentence of two years imprisonment on each of the possession charges.

The Court declined leave to the appellant to apply for home detention because the offending was relatively serious and took place at the appellant’s residence. The Court ordered a retrial on the attempted manufacturing charge, and the sentence of four years imprisonment was set aside and a sentence of two years imprisonment was substituted on each of the possession charges, those terms to be served concurrently.