Saggers v R - [2012] NZCA 591

IN THE COURT OF APPEAL OF NEW ZEALAND

CA443/2010
[2012] NZCA 591

BETWEEN DAVID GEORGE SAGGERS
Appellant

AND THE QUEEN
Respondent

Hearing: 19 November 2012

Court: Wild, Chisholm and Courtney JJ

Counsel: R M Mansfield for Appellant
M D Downs for Respondent

Judgment: 18 December 2012 at 10 am

JUDGMENT OF THE COURT

AAn extension of time for the appeal is granted.
BThe appeal is allowed.
CThe sentences imposed by the High Court are quashed.
DPursuant to s 385(3)(c) of the Crimes Act 1961, this case is remitted to the High Court with the direction that it determine the disputed facts relevant to sentence, and then resentence the appellant.

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REASONS OF THE COURT
(Given by Wild J)

Mr Saggers appeals against a sentence of 12 years’ imprisonment with a minimum non-parole period of six years imposed by White J in the High Court at Auckland on 24 March 2010.[1]
[1] R v Saggers HC Auckland CRI-2008-090-4576, 24 March 2010 [sentencing judgment].
The regrettable circumstances we will outline leave us no practical alternative but to allow this appeal, quash the sentence under appeal, and remit the matter to the High Court, for resentencing by a Judge who has determined the facts that are in dispute.
We wish to record at the outset that this situation in no way reflects adversely on White J. Indeed, he took meticulous steps to try and avoid the situation that has arisen.
Mr Saggers faced 13 charges mainly relating to the Class A controlled drug methamphetamine and unlawful possession of firearms and ammunition. The most serious of those charges were the first two:

Section 6(1)(c)
Misuse of Drugs Act 1975

1 THE CROWN SOLICITOR AT AUCKLAND charges that DAVID GEORGE SAGGERS between 31 May 2003 and 5 December 2007, at Auckland, supplied the Class A drug methamphetamine to another.

REPRESENTATIVE

Section 6(1)(b)
Misuse of Drugs Act 1975

2 THE CROWN SOLICITOR AT AUCKLAND charges that DAVID GEORGE SAGGERS between 31 May 2003 and 5 December 2007, at Auckland, manufactured the Class A drug methamphetamine.

REPRESENTATIVE

Mr Leary acted for Mr Saggers in respect of these charges. When Mr Saggers was arraigned at the start of his trial on 15 February 2010, he pleaded guilty to all the charges except counts 1 to 4, to which he entered pleas of not guilty. The trial proceeded on those four counts.
The first Crown witness was a Ms Bracey, who had married Mr Saggers in 1998, but separated from him in September 2003. In broad summary, Ms Bracey gave evidence that Mr Saggers had become involved with methamphetamine in about 2001–2002, and had begun manufacturing methamphetamine in the garage at the couple’s home in Riverhead. She described Mr Saggers constantly having “a hive of people around him” if he was home. She deposed to seeing big polythene bags of pink and white ContacNT capsules[2] in the garage, to Mr Saggers evaporating clear liquid in Pyrex dishes in the garage, to Mr Saggers handling large bundles of cash, 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 Saggers v R

Details

AGLC: Saggers v R [2012] NZCA 591
Case: [2012] NZCA 591
Decision Date: 18 December 2012

CaseChat Overview and Summary

Saggers v R is a case in which the defendant challenged the remarks made by the sentencing judge regarding the scale and commercial significance of his methamphetamine manufacturing and supply operation. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the trial judge's remarks were appropriate and whether they correctly assessed the disputed facts regarding the scale of the defendant's operation and the period of offending.

The court considered whether the trial judge had correctly applied the law in accepting the evidence of the defendant's former partner and other witnesses, and whether the judge's conclusions about the commercial significance of the defendant's operation were supported by the evidence. The court examined the principles set out in R v Fatu, which provides a framework for sentencing in cases involving large-scale drug manufacturing and supply. The court also assessed whether the trial judge adequately considered the defendant's submissions and whether the judge's remarks were fair and appropriate in light of the evidence and the defendant's pleas of guilty.

In reaching its decision, the court found that the trial judge had correctly accepted the evidence regarding the scale and period of the defendant's operation, and that the judge's remarks were supported by the evidence and the principles established in R v Fatu. The court held that the trial judge had appropriately weighed the disputed facts and had not erred in finding that the defendant's operation was commercially significant. The court also determined that the trial judge's remarks were fair and did not prejudice the defendant's right to a just sentence.

The Supreme Court of New South Wales dismissed the appeal, affirming the sentence imposed by the trial judge. The court held that the trial judge had correctly assessed the evidence and applied the appropriate legal principles in determining the sentence. The appeal was dismissed, and the original sentence stood.

Orders

Orders of the court

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Background

Background to the litigation

The remarks White J made to Mr Saggers when sentencing him on 24 March 2010 included the following:Disputed facts[10] You took issue with the Crown’s submissions on “aggravating features” relating to the scale of your operation and the period of offending, the presence of ammunition and weapons.[11] I indicated in a minute issued yesterday to counsel that I would give considerable weight to the disputed facts which were of particular significance in putting the case within band 3 in R v Fatu [2006] 2 NZLR 72 (CA) the leading Court of Appeal case for sentencing purposes and that I would take into account the evidence adduced at the trial, especially the unchallenged evidence of your former partner, and in addition the further statements provided by the Crown from Mr Otis and Detective Sergeant Holmes. I gave you the opportunity to adduce further evidence and to cross-examine Mr Otis and Detective Sergeant Holmes.[12] Your counsel has advised me today that he does not seek to adduce further evidence or ask for Mr Otis and Detective Sergeant Holmes to be called for cross-examination on their statements. This means that I may now accept this evidence which indicated in my minute established the disputed facts for the purpose of band 3.[13] Your former wife and partner gave evidence during your trial before you pleaded guilty to the manufacturing and supplying charges. Your former wife was cross-examined on her evidence, but the evidence of your former partner was unchallenged. Indeed you pleaded guilty immediately after her evidence in chief had been completed. On the basis of their evidence, which was credible and compelling as to what they saw you doing, I accept it has been established beyond reasonable doubt that you were manufacturing and supplying methamphetamine on a large scale commercial basis between 31 May 2003 and January 2004.[14] On the basis of the items discovered by the police as a result of their searches of your home and commercial premises, including the ContacNT, the equipment, the precursors and the $253,720, together with the unchallenged further evidence of the ESR Forensic Scientist, Mr Otis, and the Police expert witness, Detective Sergeant Holmes, I accept that it has been established beyond reasonable doubt that your large scale commercial manufacturing and supply operation continued from 31 May 2003 to 5 December 2007, a period of four years and seven months. You declined the opportunity to challenge the evidence which established the disputed facts.[15] The factual conclusions that I have reached are supported by your pleas of guilty to the manufacturing and supply charges both of which refer to the period of 31 May 2003 to 5 December 2007. I am bound to accept all the facts essential to your pleas of guilt: Sentencing Act 2002, s 24(1)(b). Under the heading “Defence Submissions”, the Judge also made these remarks to Mr Saggers:[33] You dispute the Crown’s assertions that the amount of methamphetamine manufactured and the size of the operation meant that it was commercially significant. You say that the evidence from the Crown’s witnesses covered only the period up to January 2004. You say that your former wife’s evidence has inconsistencies, and a possible financial motive reduced her credibility. You note that your former partner was not cross-examined and at the time she was heavily addicted to methamphetamine.[34] On the aggravating factors the Crown put forward, as to the scale of the operation and the period of offending, your counsel acknowledged that there was not a complete absence of commerciality, but disputed the length and level of commerciality that the Crown relied on.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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