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Scott v R

Scott v R

Case [2022] NZHC 2274 7 September 2022

Sentencing

Appeal

Limitation Periods

Aggravated & Exemplary Damages

Unjust Enrichment

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Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2022-454-012

[2022] NZHC 2274

ANDREW SCOTT

v

THE QUEEN

Hearing: 7 September 2022

Counsel:

J Younger for Appellant E R Pairman for Crown

Judgment:

7 September 2022

JUDGMENT OF CHURCHMAN J

[Sentence appeal]

Introduction

[1] On 26 May 2022, Andrew Scott (the appellant) was sentenced by Judge Edwards in the Palmerston North District Court to two years nine months’ imprisonment, on four charges to which he pleaded guilty. These charges were:

(a)supply of methamphetamine;1

(b)offering to supply methamphetamine;2

1 Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2), maximum penalty 14 years’ imprisonment.
2 Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2), maximum penalty 14 years’ imprisonment.

SCOTT v R [2022] NZHC 2274 [7 September 2022]

(c)unlawful possession of a firearm;3 and

(d)unlawful possession of ammunition.4

[2] Mr Scott appeals on the ground that the sentence imposed was manifestly excessive. Counsel for Mr Scott, Ms Younger, contends the Judge erred by adopting a starting point for the sentence that was too high and failed to provide an adequate discount for mitigating factors.

[3] The Crown opposes the appeal, alleging that the starting point was within the range available to the sentencing Judge, and that the discounts provided were adequate in the circumstances.

[4]The issues in this appeal are:

(a)whether the starting point adopted was within the appropriate range available; and

(b)whether the sentencing Judge adequately and correctly accounted for Mr Scott’s personal mitigating factors.

Background

[5] On 28 September 2021, the police obtained a Production Order for Mr Scott’s cell phone, on which they found evidence of the supply of 64.75 grams of methamphetamine over the period between 1 September 2021 and 24 September 2021. The total value of methamphetamine supplied was $28,500. The police also found evidence on Mr Scott’s cell phone of offers to supply a further 40 grams of methamphetamine, with an approximate value of $14,900.

[6] On 5 October 2021, the police executed a search warrant at Mr Scott’s home address in Palmerston North. Located in Mr Scott’s car was a ‘cut down’ firearm and 97 rounds of .22 calibre ammunition.

3 Arms Act 1983, s 50(1)(a), maximum penalty three years’ imprisonment or $4,000 fine.
4 Arms Act 1983, s 45(1), maximum penalty four years’ imprisonment or $5,000 fine.

[7] The pre-sentence report assessed Mr Scott as having a low-medium risk of reoffending, and a medium risk of harm to others. The report considered that the current offending marked a significant increase in the severity of Mr Scott’s offending, given that his previous criminal history consisted only of a single excess breath alcohol charge, and a licencing conviction. The report recommended a sentence of home detention, to provide the appellant the opportunity to address his offending, while also allowing him to continue his responsibilities as a father and grandfather.

[8] Mr Scott has been involved in an ‘on and off’ relationship with his partner for approximately…

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 Scott v R

Details

AGLC: Scott v R [2022] NZHC 2274
Case: [2022] NZHC 2274
Decision Date: 7 September 2022

CaseChat Overview and Summary

The appeal was brought by the appellant, Andrew Scott, against the sentence imposed by Judge Edwards in the Palmerston North District Court. The sentence was for two years and nine months’ imprisonment on four charges, which were: the supply of methamphetamine, offering to supply methamphetamine, unlawful possession of a firearm, and unlawful possession of ammunition. Mr Scott appealed on the ground that the sentence imposed was manifestly excessive. Ms Younger, counsel for Mr Scott, argued that the starting point for the sentence was too high and that the Judge failed to provide an adequate discount for mitigating factors. The Crown opposed the appeal, submitting that the starting point was within the range available to the sentencing Judge and that the discounts provided were adequate. The appeal court was required to decide whether the starting point adopted was within the appropriate range available and whether the sentencing Judge adequately and correctly accounted for Mr Scott’s personal mitigating factors. The court found that the Judge correctly identified the band of offending and the starting point, which was within the range available. The court also found that the Judge adequately accounted for the mitigating factors, including the appellant’s background, addiction, and rehabilitative prospects. The court, however, found that the Judge should have provided a discount for the appellant’s good character. The court substituted the sentence of two years and nine months’ imprisonment with a sentence of two and a half years’ imprisonment, with concurrent sentences of 18 months for the offering to supply charge, and 12 months for each firearms charge.

Orders