Scully v The Queen - [2011] NZCA 265

IN THE COURT OF APPEAL OF NEW ZEALAND

CA36/2011
[2011] NZCA 265

BETWEEN KERRY JASON SCULLY
Appellant

AND THE QUEEN
Respondent

Hearing: 25 May 2011

Court: Glazebrook, Simon France and French JJ

Counsel: S G Vidal for Appellant
M Inwood for Respondent

Judgment: 9 June 2011 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed to the extent that the forfeiture order with regard to $1,760 is set aside and the matter is remitted to the District Court for reconsideration.
BIn all other respects the appeal is dismissed.

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

In September 2010 Mr Scully pleaded guilty to one charge of possession of cannabis for supply.
He appeals against his sentence of two years three months imprisonment on the basis that he should have had a greater deduction for his guilty plea and that he should have been sentenced to home detention.
An issue also arises with regard to the basis on which a forfeiture order was made.

Background[1]

[1] This is largely taken from the Crown’s submissions.

On Friday 25 September 2009 a search warrant was executed at Mr Scully’s home in Invercargill. The search warrant was originally dated 24 August 2009 but this date had been crossed out in blue ball point pen and replaced with 1 September 2009. On the basis of the typed date on the warrant, the search could not legally have been conducted as it was done outside the time frame permitted by the warrant. The search was, however, within the permissible time frame for the warrant on the basis of the blue ball point pen alteration of the date on the document.
On the face of the document it could not be determined whether the alteration to the date had been made by the judicial officer at the time of granting the search warrant, or whether the alteration had been made by someone else at that or some other time.
During the search, a total combined weight of 561 grams of cannabis was located on the property, all high grade plant head material. The total street value was between $5,000 and $10,000 (if sold in one-ounce lots). Some of this material was packaged in one-ounce bags but the bulk was in shopping bags in the garage beside a set of small pocket sized electronic weighing scales and an open cardboard dispenser box of snap lock bags. Also located in the back pocket of Mr Scully’s jeans was $1,760 in cash.
When interviewed by the police, Mr Scully admitted ownership of the cannabis, the scales and the snap lock bags. However, he denied having cannabis for sale, stating it was for his own use. He similarly denied that the cash was proceeds from dealing in cannabis, stating that it had come from the sale of his hot rod.
Mr Scully was charged with possession of a class C controlled drug for supply. On 23 November 2009 Mr Scully was committed for trial on that charge.…

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 Scully v The Queen

Details

AGLC: Scully v The Queen [2011] NZCA 265
Case: [2011] NZCA 265
Decision Date: 9 June 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Kerry Jason Scully against his conviction and sentence for possession of cannabis for supply. Scully argued that he should have received a greater deduction for his guilty plea and that he should have been sentenced to home detention rather than imprisonment. Additionally, he contested the basis of the forfeiture order regarding $1,760 found on his person. The appeal was heard by Glazebrook, Simon France, and French JJ, with counsel S G Vidal representing the appellant and M Inwood representing the respondent.

The legal issues before the court included the appropriate discount for Scully's guilty plea, the eligibility for home detention, and the validity of the forfeiture order for the cash found on Scully. The court had to determine whether Scully received a fair discount for his guilty plea despite delays in challenging the search warrant's validity, whether home detention was a suitable alternative to imprisonment given the nature of the offence and Scully's history, and whether the cash could be forfeited under the Misuse of Drugs Act 1975.

The court found that the delay in challenging the search warrant's validity was largely due to Scully's own actions in engaging counsel who were unable to proceed with the challenge at the time. The court also concluded that the 15 and a half per cent discount for the guilty plea was appropriate, given the strength of the Crown's case and the Supreme Court's guidance on the matter. Regarding home detention, the court held that it was not a suitable sentence due to the nature of the offence and Scully's history of similar offences. Lastly, the court determined that the cash could not be forfeited under the relevant section of the Misuse of Drugs Act 1975 because it was not received in the course of the offence or held for the purpose of facilitating another offence. Therefore, the appeal was allowed to the extent of setting aside the forfeiture order and remitting the matter to the District Court for reconsideration. In all other respects, the appeal was dismissed.

Orders