Rusia v Police - [2022] NZHC 2171

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000225

[2022] NZHC 2171

BETWEEN
LIONEL RUSIA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 August 2022

Appearances:

C Bernhardt for Appellant L Lai for Respondent

Judgment:

30 August 2022

JUDGMENT OF VENNING J

Appeal against sentence

This judgment was delivered by me on 30 August 2022 at 10.00 am.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland
Public Defence Service, Auckland

RUSIA v NEW ZEALAND POLICE [2022] NZHC 2171 [30 August 2022]

[1] On 29 June 2022 Judge J M Jelaš sentenced Lionel Rusia to 31 months’ imprisonment.1 Mr Rusia appeals against the sentence. Mr Bernhardt submitted the Judge erred by:

(a)taking an excessive starting point for the lead offence of possession of the Class B drug ephedrine for supply;

(b)failing to give a sufficient reduction to reflect totality on the second shotgun charge; and

(c)failing to give sufficient credit for mitigating factors.

[2] Overall the appellant’s case is that the end sentence should have been less than 24 months and the least restrictive sentence was one of home detention rather than imprisonment. As an alternative, in his submissions in reply, Mr Bernhardt submitted that even if the Court was not taken to the stage of accepting the sentence should have been less than 24 months then the sentence of 31 months was manifestly excessive and should be reduced.

Background

[3] On 8 October 2020, Police searched the property where Mr Rusia was living. In the course of the search the Police located:

(a)a black starter pistol;

(b)1.3 g of methamphetamine;

(c)seven glass pipes commonly used in the consumption of methamphetamine;

(d)eighty-six rounds of 12 gauge shotgun ammunition;

1 NZ Police v Rusia [2022] NZDC 12052.

(e)92 g of ephedrine with a notebook containing information relating to the price and weight of the product; and

(f)200 g of cannabis plant.

[4] That led to charges of unlawful possession of a firearm and ammunition, possession of the class B drug ephedrine for supply, possession of the class C drug cannabis for supply, and possession of methamphetamine and pipe.

[5] On 22 March 2022, while Mr Rusia was on bail for the above offending, the Police executed a warrant issued for Mr Rusia’s arrest. A search of the property where he was found led to discovery of cannabis leaf, and a shotgun cartridge. Subsequently the Police also located a Mossberg 88 shotgun. That led to a charge of unlawful possession of a firearm.

[6] On 20 April 2022, some 18 months following the initial offending and one month following the subsequent offending in relation to the possession of the Mossberg firearm, Mr Rusia pleaded guilty to all seven charges.

The District Court sentencing

[7] Judge Jelaš structured the sentence by taking the possession of the class B drug ephedrine for supply as the lead charge. She took a starting point of 20 months for that charge and then uplifted that by 14 months…

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 Rusia v Police

Details

AGLC: Rusia v Police [2022] NZHC 2171
Case: [2022] NZHC 2171
Decision Date: 30 August 2022

CaseChat Overview and Summary

Lionel Rusia appeals against his sentence of 31 months' imprisonment for various drug and firearm related offences. The appeal was heard by Venning J in the High Court of New Zealand, Auckland Registry. The appellant's counsel, Mr Bernhardt, argued that the District Court judge erred in several respects: by taking an excessive starting point for the lead offence of possession of ephedrine for supply, failing to give a sufficient reduction to reflect totality on the second shotgun charge, and failing to give sufficient credit for mitigating factors. The appellant submits that the end sentence should have been less than 24 months and that the least restrictive sentence should have been home detention.

The court found that the District Court judge's starting point of 20 months for the possession of ephedrine for supply was within the appropriate range. The court noted that the appellant had pleaded guilty to the charge of supply of ephedrine and that the quantity of the class B drug was significant. The court also found that the uplift of 14 months for the remaining charges arising from the first occasion was appropriate, given the aggravating features of the case, including the fact that the offending occurred while the appellant was on bail for previous drug-related offending. The court found that the uplift for the second charge was orthodox and that the ultimate uplift of five months might be regarded as somewhat generous.

The court further found that the District Court judge was correct in rejecting the submissions for good character, remorse and section 27 factors as bases for a reduction in sentence. The appellant had previous offences, including for previous drug-related offending, and the offending in this case involved multiple offences on the first occasion and subsequent offending while on bail. The court concluded that the end sentence of 31 months' imprisonment for the offences committed by the appellant in 2020 and March 2022 was well within the appropriate range.

The appeal is dismissed.

Orders