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Royal v R

Royal v R

Case [2020] NZCA 129 30 April 2020

Rehabilitative Potential

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA601/2018
[2020] NZCA 129

BETWEEN	SHANE KAWA ROYAL Appellant
AND	THE QUEEN Respondent

Hearing:	26 February 2020
Court:	Miller, Dobson and Moore JJ
Counsel:	J Keung and G Vear for Appellant E J Hoskin for Respondent
Judgment:	30 April 2020 at 9.30am

JUDGMENT OF THE COURT

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

B The application to adduce further evidence on appeal is granted.

C The appeal is allowed.

D We quash the sentences passed in the District Court and substitute those listed at [29].

E We also quash the MPI.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

This appeal is brought against a sentence of seven years imprisonment imposed on charges of, among other things, possessing 15.6 g of methamphetamine for supply.[1]
[1]R v Royal [2018] NZDC 14395.
Mr Royal was sentenced under the former methamphetamine guideline judgment, R v Fatu,[2] and his is one of a number of appeals the disposition of which has been delayed pending the updated guidelines issued in Zhang v R.[3]
[2]R v Fatu [2006] 2 NZLR 72 (CA).
[3]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
The notice of appeal was filed on 3 October 2018, before the Court issued its judgment in Zhang on 21 October 2019. However, the appeal was 37 working days out of time and it requires an extension under s 248 of the Criminal Procedure Act 2011. For reasons given in Su v R, which was heard on the same day as Mr Royal’s appeal, we hold that the appeal is governed by Zhang.[4] The Crown does not oppose an extension on the merits, and we grant it accordingly.

The facts

[4]Su v R [2020] NZCA 128 at [4]. See Zhang v R, above n 3, at [188].

On 17 May 2016 Mr Royal was found to be in possession of 5.6 g of methamphetamine, 50 mL of GBL and $2,020 in cash. He was granted EM bail.
On 12 July 2017, while he was still on bail, his address was searched pursuant to a search warrant. The police located 14 g of methamphetamine (10 g stored and 4 g on his person), 596.6 g of GBL, 658 mg of MDMA, 19 tabs of LSD, five 10 mg ampules of morphine, 90 g of cannabis, a methamphetamine pipe and $75,960 in cash. It was also established that on four separate occasions in April 2017 he had supplied his 16-year-old son with cannabis, totalling eight pounds; this he accounted for by saying he was concerned for the boy’s mental health.
Mr Royal was aged 50 at sentencing on 16 July 2018. The record before us includes reports from the Odyssey House drug treatment programme which sufficiently confirm his long-standing addiction to methamphetamine and address his potential for treatment.

The sentence

Judge Burnett recognised that the effective…

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 Royal v R

Details

AGLC: Royal v R [2020] NZCA 129
Case: [2020] NZCA 129
Decision Date: 30 April 2020 at 9.30am

CaseChat Overview and Summary

Shane Kawa Royal appeals against his sentence of seven years imprisonment, imposed on charges including possession of 15.6 g of methamphetamine for supply. The appeal was filed before the Court issued its judgment in Zhang v R but was 37 working days out of time and required an extension under s 248 of the Criminal Procedure Act 2011. The Crown does not oppose an extension on the merits, and the Court grants it accordingly. The appeal raises several issues, including the starting point for the methamphetamine offending, whether a discount is warranted for Mr Royal's addiction and rehabilitative potential, and whether a minimum period of imprisonment is appropriate. The Court holds that a starting point of around seven years was appropriate, addiction does not mitigate culpability in this case, and Mr Royal has real prospects of remaining offence-free on release. The effective sentence after the discounts is six years, two months imprisonment. The Court allows 10 per cent for rehabilitative potential but does not warrant a minimum period of imprisonment in the circumstances.

The appeal is allowed. The sentences passed in the District Court are quashed and substituted with those listed at [29] above. The Court also quashes the minimum period of imprisonment.

Orders