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Ross v The King

Ross v The King

Case [2024] NZHC 160 13 February 2024

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-99 CRI-2023-412-100

CRI-2023-412-101 [2024] NZHC 160

BETWEEN
PHILIP WILLIAM ROSS

Appellant

AND

THE KING

Respondent

Hearing: 7 February 2024

Appearances:

S A Saunderson-Warner for Appellant R D Smith for Crown

Judgment:

13 February 2024

JUDGMENT OF MANDER J

This judgment was delivered by me on 13 February 2023 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

ROSS v R [2024] NZHC 160 [13 February 2024]

[1] Philip Ross was sentenced by Judge Turner in the Dunedin District Court to two years and seven months’ imprisonment1 after pleading guilty to charges of possession of methamphetamine for supply;2 possession of a firearm while committing an offence;3 a similar charge relating to the possession of ammunition;4 and failing to comply with search powers.5 Mr Ross had also pleaded guilty to charges of breaching sentences of community work6 and supervision.7 He appealed that sentence, alleging it was manifestly excessive because the overall starting point adopted by the sentencing Judge was too high.

Background

[2] On 6 July 2023, the police executed a search warrant at Mr Ross’ Dunedin home. A shotgun was located secreted in a couch in the lounge of the address with four cartridges in the magazine and one loaded in the chamber. The safety catch was off. Two rifle stocks, a rifle bolt, a shotgun barrel and a bag containing seven shotgun shells and eight rifle cartridges were also found in the house.

[3] A backpack found beside Mr Ross’ bed contained scales and 18 small zip lock bags containing between 0.2g and 0.3g of methamphetamine that together were valued at $3,600. Mr Ross refused to provide his passcode to his cell phone when requested by police.

[4] The Corrections charges related to breaches of community work and supervision. Mr Ross had been sentenced to 200 months’ community work in relation to driving charges of which 77 hours remained outstanding. He was also sentenced to 12 months’ supervision, again in relation to driving charges but had failed on numerous occasions to comply with that sentence.

1      R v Ross [2023] NZDC 11257.
2      Misuse of Drugs Act 1975, s 6 — maximum penalty life imprisonment.
3      Arms Act 1983, s 54— maximum penalty five years’ imprisonment.
4      Section 54—maximum penalty five years’ imprisonment.
5      Search and Surveillance Act 2012, s 178— maximum penalty three months’ imprisonment.
6      Sentencing Act 2002, s 71—maximum penalty three months’ imprisonment.
7      Section 70 — maximum penalty three months’ imprisonment.

Sentencing decision

[5] Judge Turner sentenced Mr Ross on the basis he had been found in possession of between 3.6 and 5.4 g of methamphetamine, which placed his offending within Band 1 and at the very cusp of Band 2 of the categories of methamphetamine offending described in the guideline judgment of Zhang v R.8 It was not disputed the offending involved an element of commerciality and that Mr…

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 Ross v The King

Details

AGLC: Ross v The King [2024] NZHC 160
Case: [2024] NZHC 160
Decision Date: 13 February 2024

CaseChat Overview and Summary

The appeal in Ross v The King involves Philip William Ross, who was sentenced to two years and seven months’ imprisonment for possession of methamphetamine for supply, possession of a firearm while committing an offence, possession of ammunition while committing an offence, failing to comply with search powers, and breaching sentences of community work and supervision. The crux of the appeal was the contention that the sentence was manifestly excessive, particularly the uplift imposed for the firearms charges. Ross argued that the starting point for the methamphetamine charge was incorrect and that the uplift for the firearms charge should not have exceeded 12 to 15 months. The High Court examined the appropriateness of the starting point for the methamphetamine charge and the uplift for the firearms charge, considering the relevant sentencing principles and the totality of the offending.

The Court found that the starting point for the methamphetamine charge was not excessive, as the amount of the drug possessed placed Ross’s offending at the cusp of Bands 1 and 2 as per Zhang v R. The Court also observed that the uplift for the firearms charge, while perhaps at the higher end of the generally accepted range, was justified given the seriousness of the firearms charge and the dangerous circumstances in which the weapon was possessed. The Court concluded that the overall sentence, when considering all the charges, did not amount to a manifestly excessive sentence. Therefore, the appeal was dismissed.

Orders