Roberts v Police - [2013] NZHC 2706

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-470-31 [2013] NZHC 2706

BETWEEN DALE EDWARD ROBERTS Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 October 2013

Counsel:

D McWilliam for Appellant
JJ Rhodes for Respondent

Judgment:

17 October 2013

JUDGMENT OF BREWER J

Solicitors: Public Defence Service (Tauranga) for Appellant
Ronayne Hollister-Jones Lellman (Tauranga) for Respondent

ROBERTS v POLICE [2013] NZHC 2706 [17 October 2013]

[1] Mr Roberts appeals his sentence of 15 months’ imprisonment handed down against him in the District Court at Tauranga on 1 October 2013 by Judge JP Geoghegan. The appellant appeared on that day for sentence on three charges. These were one charge of possession of precursor substances with the intention of producing or manufacturing methamphetamine; one charge of unlawful possession of a pistol; and one charge of possession of methamphetamine. The lead charge was the first since the maximum term of imprisonment is five years.

[2] The appeal is brought on the basis that the sentence of imprisonment should have been commuted to a sentence of home detention. Mr McWilliam, appearing for the appellant, appreciates that this is an appeal against the exercise of a discretion. Therefore, it is not a matter of me substituting my view of an appropriate outcome for that of the District Court Judge. I cannot disturb the judgment unless I conclude that the District Court Judge took into account a matter he was not entitled to take into account, failed to take into account a matter he should have taken into account, made an error of law or was otherwise plainly wrong in his decision.

[3] Mr McWilliam advances the appeal on the basis that the learned District Court Judge failed to take into account matters which he should have taken into account. Before turning to Mr McWilliams’s submissions, I will set out the salient facts in relation to the offending and to the offender.

[4] The Police executed a search warrant at the appellant’s home. They found the pistol in the kitchen pantry. The pistol is not a firearm. It is an electric stun device in the shape of a torch. In a downstairs bedroom was found a ziplock bag containing 0.1 grams of methamphetamine. Two further ziplock bags were found containing what is described as a usable amount of methamphetamine. The precursor materials found consisted of iodine flakes in a small plastic pill bottle and another bottle containing approximately 10 millilitres of hydrophosphorous acid.

[5] The appellant is a mature man of 50 years. He has had a lifelong exposure to drugs. He is addicted to methamphetamine. The District Court Judge had before him an alcohol and drug assessment report dated 30 August 2012 which sets out the appellant’s history.

[6] The appellant has a criminal record. It is not an extensive one. His only relevant convictions relating to drugs are for offences which took place in September
2000 and on which he was sentenced in August 2002. Those charges were selling cannabis plant, cultivating cannabis…

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 Roberts v Police

Details

AGLC: Roberts v Police [2013] NZHC 2706
Case: [2013] NZHC 2706
Decision Date: 17 October 2013

CaseChat Overview and Summary

In the case of Roberts v Police, the appellant, Dale Edward Roberts, appealed his 15-month imprisonment sentence imposed by the District Court at Tauranga. The sentence was given on three charges: possession of precursor substances with the intention of producing or manufacturing methamphetamine, unlawful possession of a pistol, and possession of methamphetamine. The appellant argued that his sentence should have been commuted to a sentence of home detention. The appeal was heard by Brewer J, who outlined that the decision to disturb a District Court Judge's sentencing decision must be based on the Judge taking into account a matter they were not entitled to, failing to take into account a matter they should have, making an error of law, or being otherwise plainly wrong in their decision.

The court considered the appellant's arguments, which included that the District Court Judge failed to give sufficient weight to the appellant's rehabilitation efforts, the time elapsed between the current and previous offending, and the fact that the pistol in question was not a firearm. The court also considered the appellant's history of drug addiction, his criminal record, and the pre-sentence report, which recommended imprisonment due to the appellant's lack of remorse and attempts to justify his actions. The court found that the District Court Judge failed to take into account the seriousness of the offending, the non-recidivist nature of the case, the unrelated possession of the pistol, and the possibilities for rehabilitation.

Brewer J allowed the appeal and quashed the sentence of imprisonment, substituting it with a sentence of seven months' home detention, with several conditions. These conditions included residing at a specific address, abstaining from alcohol and illicit drugs, submitting to random drug testing, undertaking family and parental responsibilities, reporting to a probation officer, and attending alcohol and drug assessments and counselling or treatment. The post-detention condition required the appellant to complete any remaining rehabilitative programme, counselling, treatment, and maintenance follow-up programme as directed by the probation officer for a period of no more than six months from the completion of the detention.

Orders