Roberts v R - [2019] NZHC 3319

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000397

[2019] NZHC 3319

BETWEEN
BRENDON JAMES ROBERTS

Appellant

AND

THE QUEEN

Respondent

Hearing: 9 December 2019

Appearances:

B Sellars QC for the Appellant Y H Olsen for the Respondent

Judgment:

13 December 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 13 December 2019 at 4.00 pm

Registrar/Deputy Registrar

Solicitors: Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau

Counsel: Belinda Sellars QC, Auckland

ROBERTS v R [2019] NZHC 3319 [13 December 2019]

Introduction

[1] On 10 October 2018, the appellant was sentenced to a term of four years and seven months' imprisonment having pleaded guilty to the following charges:1

(a)manufacturing methamphetamine;2

(b)offering to supply methamphetamine (representative);3

(c)supplying methamphetamine (representative);4 and

(d)theft of a motor vehicle.5

[2] The appellant appeals his sentence on the grounds that it is manifestly excessive.

[3] A notice of appeal was filed out of time on 1 December 2018.6 The respondent does not oppose an extension being granted, as the recent guideline judgment for methamphetamine offending, Zhang v R, applies to this appeal.7 I grant leave accordingly. The appellant has provided to the court new reports to address matters raised in Zhang. I accept this new evidence meets the test of being sufficiently fresh and sufficiently credible to be admitted and considered.8 The appeal hearing was adjourned from time to time to await the Court of Appeal decision in Zhang v R, which was issued on 21 October 2019.

1      R v Roberts [2018] NZDC 21560.
2      Misuse of Drugs Act 1975, ss 6(1)(b) and 2(a), maximum penalty life imprisonment (CRN ending 1861).
3      Section 6(1)(c), maximum penalty life imprisonment (CRN ending 1855).
4      Section 6(1)(c), maximum penalty life imprisonment (CRN ending 3632).
5      Crimes Act 1961, ss 219 and 223, maximum penalty of 7 years’ imprisonment (CRN ending 0826).
6      36 days after the date of sentence, as opposed to 20 days required by Criminal Procedure Act 2011, s 248.
7      Zhang v R [2019] NZCA 507 (CA) at [104].
8      Bain v R [2007] UKPC 33 (2007) 23 CRNZ 71; [2007] BCL 577 at [34].

Facts

[4] The appellant's drug-related offending came to light after a number of production orders were obtained with respect to phone numbers attributed to him and his co-offender, Mr Magele.

[5] Between 2 July 2016 and 19 July 2016, the appellant and Mr Magele were involved in the manufacture of methamphetamine at Mr Magele’s cousin’s address in Ōtāhuhu. Both the appellant and Mr Magele set about obtaining the necessary equipment and precursor substances. The offenders would also arrange to meet at the manufacturing premises, late at night and in the early hours of the morning.

[6] A search warrant was executed at the premises on 20 October 2016. Police located items throughout the premises that are commonly used in the manufacturing of methamphetamine, and which exhibited signs of being…

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 R

Details

AGLC: Roberts v R [2019] NZHC 3319
Case: [2019] NZHC 3319
Decision Date: 13 December 2019

CaseChat Overview and Summary

The appellant, Brendon James Roberts, appealed his sentence for methamphetamine manufacturing and related charges, arguing it was manifestly excessive. The appeal was heard by Woolford J in the High Court of New Zealand, Auckland Registry. The appellant pleaded guilty to manufacturing methamphetamine, offering and supplying it, and stealing a motor vehicle. The District Court had sentenced him to four years and seven months' imprisonment, which he contested as excessive.

The legal issues before the court were whether the starting point and the uplifts for the totality of the offending and prior convictions were appropriate, and whether sufficient discounts had been given for the appellant’s addiction and ADHD. The court also had to consider the recent guideline judgment in Zhang v R, which revised the approach to sentencing for methamphetamine offences.

Woolford J found that the starting point set by the District Court was excessive given the revised sentencing guidelines in Zhang. The court concluded that a three-year starting point was appropriate, taking into account the quantity of methamphetamine manufactured and the appellant's significant role in the operation. The uplift for the totality of the offending was also deemed excessive, and a six-month uplift was considered more appropriate. The court found the uplift for prior convictions to be appropriate. Regarding the discounts, the court accepted the appellant's evidence of addiction and ADHD, and found that a 15% discount for these factors was warranted. The discount for the guilty plea was found to be adequate.

The appeal was allowed, and the sentence was quashed and reduced to two years and 10-and-a-half months' imprisonment for the methamphetamine offending, with a concurrent six-month sentence for the theft of the motor vehicle.

Orders