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Rogers v R

Rogers v R

Case [2022] NZCA 39 7 March 2022

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA469/2021
[2022] NZCA 39

BETWEEN	ELIJAH JOSEPH ROGERS Appellant
AND	THE QUEEN Respondent

Hearing:	14 February 2022
Court:	Goddard, Brewer and Edwards JJ
Counsel:	H G de Groot and R H Hohaia for Appellant M B Smith for Respondent
Judgment:	7 March 2022 at 10.00 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is allowed.
CThe minimum period of imprisonment of 50 per cent of the sentence of 19 years’ imprisonment is set aside.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

Mr Rogers is 33 years old and of Ngāpuhi, Ngāti Whātua and Te Arawa descent. In 2016, he pleaded guilty to 19 charges relating to his participation in a large-scale methamphetamine operation. He was sentenced in the High Court to 19 years’ imprisonment with a 50 per cent minimum period of imprisonment (MPI).
Mr Rogers seeks an extension of time to appeal his sentence. The sole focus of the proposed appeal is the imposition of the MPI. As the application for leave involves a consideration of the merits of the appeal, both the leave application and substantive appeal are determined together.

The offending

The offending arose out of an investigation into the manufacture and supply of methamphetamine by the Head Hunters Motorcycle Club.
The operation was spearheaded by Mr Brownie Harding, a patched member of the Head Hunters Motorcycle Club. He put together and directed a group of 11 other patched members and associates of the gang to manufacture and distribute methamphetamine throughout New Zealand.
The methamphetamine was manufactured at a residential address in a remote rural locality southwest of Whangarei. It was sold throughout the Auckland and Northland regions. At the time of Mr Rogers’ sentencing, it was the largest single case of manufacturing to come before the New Zealand courts.
Mr Rogers was 25 years old, and a patched member of the Head Hunters gang when he first became involved in the offending. He was one of several cooks involved in the manufacture of methamphetamine and operated at Mr Harding’s direction and in accordance with his instructions.
Mr Rogers was sentenced on the basis that he was involved in the production of at least 7 kg of high quality (73 per cent pure) methamphetamine over six distinct manufactures conducted between September and December 2014.

High Court sentencing

Mr Rogers pleaded guilty to the following charges:
(a)Six charges of manufacturing methamphetamine;[1]
(b)Four charges of offering to supply methamphetamine;[2]
(c)Four charges of conspiring to supply methamphetamine;[3]
(d)One charge of possession of material with intent that it be used to manufacture methamphetamine;[4]
(e)One charge of participating in an organised criminal group;[5]
(f)One charge of possession of a precursor substance with intent that it be used in the manufacture of methamphetamine;[6]
(g)One charge of possession of equipment with intent that it be used in the manufacture of methamphetamine;[7] and
(h)One charge of unlawful…

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 Rogers v R

Details

AGLC: Rogers v R [2022] NZCA 39
Case: [2022] NZCA 39
Decision Date: 7 March 2022 at 10.00 am

CaseChat Overview and Summary

Elijah Joseph Rogers (appellant) sought an extension of time to appeal against his sentence of 19 years' imprisonment with a 50 per cent minimum period of imprisonment (MPI). The appeal was lodged outside the statutory time period and the Crown submitted that the application should be refused. The Court of Appeal held that an extension of time should be granted. The Court further held that the appeal had merit and set aside the MPI.

The Court of Appeal first considered whether special circumstances existed to justify a departure from the principle of finality. The appellant was sentenced in May 2016 and filed his appeal in July 2021. The delay was attributed to his methamphetamine addiction, which impaired his ability to pursue his legal rights. The Court accepted that the appellant's reasons were special, but concluded that they did not alone justify an extension of time.

The Court next considered the strength of the proposed appeal. The Court observed that the imposition of an MPI was consistent with the law at the time of sentencing. However, the Court had since held that imposing an MPI as a matter of routine was inconsistent with the law. Instead, a reasoned analysis was required. The Court found that the unique circumstances of the appellant's case meant that an MPI longer than the one-third statutory period was not required. The Court concluded that the appeal was sufficiently strong to overcome the delay in pursuing it.

The Court allowed the appeal and set aside the MPI. The Court emphasised that whether an MPI should be imposed involved a fact-specific enquiry. The Court did not accept that the imposition of an MPI for one offender meant that the same MPI should automatically apply to all offenders involved in that offending. The Court held that an MPI was not required in the appellant's case.

Orders