Russell v The King - [2025] NZHC 1405

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2025-419-000010

[2025] NZHC 1405

BETWEEN
PETER ANDREW RUSSELL

Appellant

AND

THE KING

Respondent

Hearing: 27 May 2025

Appearances:

K W Burroughs for the Appellant J Lewis for the Respondent

Judgment:

30 May 2025

JUDGMENT OF GARDINER J

[Appeal against sentence]

This judgment was delivered by me on 30 May 2025 at 2.00 pm.

Registrar/Deputy Registrar

Solicitors:
Hamilton Legal, Hamilton
K W Burroughs, Barrister, Hamilton

RUSSELL v R [2025] NZHC 1405 [30 May 2025]

Introduction

[1] Peter Russell appeals Judge K M Tan’s decision sentencing him to two years and four months’ imprisonment,1 pursuant to his guilty plea on charges of supplying methamphetamine2 and possession of a knife in a public place.3

[2] On appeal, Mr Russell says the Judge erred in characterising him as falling within the ‘significant’ role which resulted in a manifestly excessive sentence. The Crown opposes the appeal.

The offending

[3] On 4 November 2024, Mr Russell’s vehicle was stopped by police. While speaking to him, police observed a 200-mm sheathed knife laying on the passenger seat.

[4] Police executed a warrantless search for offensive weapons in the vehicle. A syringe was found in the centre console and police began searching for drugs. During the search, police also found 10 zip-lock bags of a crystalline substance, believed to be methamphetamine, as well as $2895 in cash. The bags contained approximately 34.77 g of methamphetamine and the packaging indicated sale and supply.

[5]Police also located two police scanners and two cell phones.

Decision on appeal

[6] The Judge took the methamphetamine charge as the lead offending and identified that it fell within band 2 of Zhang, due to the quantity involved.4 However, the Judge noted that culpability is not assessed with reference to quantity alone — she would have to assess whether Mr Russell’s role was in the lesser, significant, or leading category.5

1      R v Russell [2025] NZDC 2468.
2      Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty: life imprisonment.
3      Summary Offences Act 1981, s 13A. Maximum penalty: three months’ imprisonment.
4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
5      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

[7] The Judge considered the submission for Mr Russell that, because his offending was solely driven by his addiction, he fell within the lesser category of culpability. The Judge recognised that addiction was certainly a factor but could not discount that commerciality was involved. As highlighted by the Crown, this was demonstrated by the scanners, cell phones, money and packages that were found in the police search.

[8] Accordingly, the Judge adopted a starting point of three years’ imprisonment, having regard to cases of a similar nature.6 An uplift of two months was then imposed for the knife charge, which resulted in an adjusted starting point of 38 months.

[9] The Judge proceeded to consider personal aggravating and…

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 Russell v The King

Details

AGLC: Russell v The King [2025] NZHC 1405
Case: [2025] NZHC 1405
Decision Date: 30 May 2025

CaseChat Overview and Summary

Peter Russell has appealed against his two-year and four-month prison sentence imposed after pleading guilty to charges of supplying methamphetamine and possessing a knife in a public place. The appeal focuses on the sentence imposed by Judge K M Tan, which Mr Russell contends was manifestly excessive due to an error in characterising his role in the offending as significant, rather than lesser. The Crown, represented by Mr Lewis, contends that the Judge was correct in her assessment of Mr Russell's culpability and that the sentence was appropriate. The key legal issue was whether the Judge had erred in assessing Mr Russell's role in the offending as significant, resulting in an excessive sentence. The Court considered whether the Judge's assessment was in error and whether the sentence was manifestly excessive or wrong in principle. The Court found that the Judge's assessment of Mr Russell's role in the offending was correct. The Court held that while Mr Russell's offending may have been driven by his addiction, the evidence indicated that he was operating a small-scale commercial operation, which placed him in the significant category. The presence of various items such as a police scanner, packaging, a knife, a large amount of cash, and cell phones supported this conclusion. The Court found that the starting point of three years’ imprisonment was appropriate and that the sentence, after considering personal mitigating and aggravating factors, was within the range that could be justified by accepted sentencing principles. Consequently, the appeal was dismissed.

Orders