R v Weiss - [2017] NZHC 1517

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-442-8 [2017] NZHC 1517

BETWEEN
THE QUEEN

Appellant

AND

JAMIE LEE WEISS Respondent

Hearing: 29 June 2017

Appearances:

K S Grau for the appellant
C P Stevenson for the respondent

Judgment:

3 July 2017

JUDGMENT OF CULL J

[1] This is a Crown appeal against a sentencing imposed for methamphetamine and cannabis charges, challenging a 35 per cent discount for rehabilitation as excessive, which the Crown says, renders the sentence manifestly inadequate.

[2] Ms Weiss pleaded guilty to 22 charges of possession of, use of, and dealing in

95 grams of methamphetamine and at least two ounces of cannabis. She was given a sentence indication of five years and three months’ imprisonment, and then, following a residential rehabilitative programme, was sentenced to two years and nine months’.1 This sentence resulted from the 35 per cent discount for rehabilitation.

[3] The Crown appeals on the basis that the discount for rehabilitation was incorrectly calculated, plainly excessive, contrary to authority and has led to a
sentence that is manifestly inadequate.

1 R v Weiss [2017] NZDC 7672.

THE QUEEN v WEISS [2017] NZHC 1517 [3 July 2017]

[4] The issue for determination is whether the Judge has imposed an excessive discount for rehabilitation, such that Ms Weiss’ sentence is manifestly inadequate.

Background facts

[5] On 6 January 2016, Police executed a search warrant at a motel in Nelson where Ms Weiss was staying. Her seven year-old daughter was there, as was a man who was purchasing cannabis from her. Police found 15 grams of cannabis head,
10.1 grams of methamphetamine, and several drug related items. Her phone records between October 2015 and January 2016 indicated a number of actual supplies and offers to supply of both methamphetamine (at least nine grams, and at least 3.35 grams, respectively) and cannabis (12 tinnies, and five tinnies, respectively). She was charged on 7 January 2016, and granted bail on conditions including a curfew, not to use a cellphone, not to associate with her co-offender Mr Knox, and not to consume illicit drugs.

[6] On 12 April 2016, Police stopped a vehicle driven by Mr Knox in which Ms Weiss was a passenger. A search of her handbag revealed 35 grams of cannabis, four point bags and a small vial containing methamphetamine, and a number of drug-related items. A further 15 grams of methamphetamine was found in the car.

[7] On 15 April 2016, when Ms Weiss was in custody at the Nelson Police Station and due to be transported to Christchurch Women’s Prison, Police searched her and found a bag containing 40.7 grams of methamphetamine in her underwear. Mr Knox was also searched in custody and found with 8.6 grams of methamphetamine.

[8] Text messages revealed that between March and April 2016 Ms Weiss supplied and offered to supply both methamphetamine (3.35 grams and 5.4 grams, respectively) and cannabis (half an ounce sold; half an ounce, $50 worth and at least four tinnies offered).

[9] The…

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 Weiss

Details

AGLC: R v Weiss [2017] NZHC 1517
Case: [2017] NZHC 1517
Decision Date: 3 July 2017

CaseChat Overview and Summary

The case of R v Weiss is a Crown appeal against the sentencing of Jamie Lee Weiss for methamphetamine and cannabis charges. The Crown appealed on the basis that the 35 per cent discount for rehabilitation was incorrectly calculated, excessive, contrary to authority and led to a manifestly inadequate sentence. The issue was whether the Judge had imposed an excessive discount for rehabilitation, such that Weiss’ sentence was manifestly inadequate. The High Court found that the Crown's appeal was allowed, the sentence of two years and nine months was quashed, and Weiss was sentenced to three years and eleven months.

The Court found that the methodology adopted by the Judge was incorrect as the guilty plea discount should be deducted after discounting for personal factors. The end sentence was manifestly inadequate as a result. The Court considered the consistent application of sentencing tariffs, discounts and application of principle to sentencing. It was important that in setting tariffs for sentencing and appropriate discount percentages, the higher Courts encouraged a more consistent approach to sentencing, which was known and understood by all. The Court found that an appropriate discount at the higher end was 25 per cent, and the sentence of three years eleven months and no less was appropriate.

Orders