Shaw v R

Case [2016] NZCA 110 11 April 2016

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA309/2015
[2016] NZCA 110

BETWEEN	PETER MATTHEW SHAW Appellant
AND	THE QUEEN Respondent

Hearing:	1 March 2016
Court:	Ellen France P, Keane and Dobson JJ
Counsel:	V C Nisbet and N I Burt for Appellant M L Wong for Respondent
Judgment:	11 April 2016 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed in part. The minimum period of imprisonment of five years and nine months is quashed.
C The sentence of 11 years and five months’ imprisonment remains.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

In December 2014, the appellant (Mr Shaw) pleaded guilty to:
·     one charge of manufacturing methamphetamine;
·     two charges of possession of methamphetamine for supply;
·     one charge of supplying a class B controlled drug, namely ephedrine;
·     one charge of forgery; and
·     one charge of unlawful possession of a firearm.
In February 2015, Mr Shaw was sentenced in the High Court at Auckland by Woolford J to 11 years and five months’ imprisonment. The Judge also imposed a minimum period of imprisonment (MPI) of 50 per cent of the total sentence.[1]
[1]R v Shaw [2015] NZHC 238.
Mr Shaw has appealed against that sentence as manifestly excessive, and has also appealed against the imposition of the MPI. In oral argument, Mr Nisbet focused on the challenge to the MPI. The appeal was filed out of time so an extension of time to appeal is required. An extension was not opposed and is granted.

The offending

Following a police surveillance operation, Mr Shaw was charged, in a single count, with manufacturing methamphetamine on three occasions between February and April 2014. The first manufacture produced 830 g of methamphetamine, the second produced an unknown amount and an estimated one kg was produced on the third occasion. Justice Woolford sentenced Mr Shaw on the premise that manufacture of a total of 1.83 kg could reasonably be verified.
With co-defendants, Mr Shaw was involved in relatively large-scale and moderately sophisticated manufacturing operations. He purchased key ingredients and tools, transported the items used and rented a number of storage facilities for storing items used in the manufacturing process. Mr Shaw was also the registered owner of a trailer that was used to store manufacturing equipment and cash close to town. The defendants also utilised a second trailer that was described in the summary of facts as a mobile methamphetamine laboratory.
In one of the storage units rented by Mr Shaw’s co-defendant Ms Shannon Kay Stevens, the police discovered forged driver’s licences containing photographs of Mr Shaw and Ms Stevens, which provided them with false identities. The forgery charge to which Mr Shaw pleaded guilty related to those documents.
A later search of a storage unit rented by Mr Shaw in Nelson revealed 100 g of methamphetamine and a shotgun.
Mr Shaw pleaded guilty at the earliest opportunity to all the…

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 Shaw v R

Details

AGLC: Shaw v R [2016] NZCA 110
Case: [2016] NZCA 110
Decision Date: 11 April 2016 at 2.30 pm

CaseChat Overview and Summary

The case of Shaw v R involved an appeal by Peter Matthew Shaw against his sentence, which had been imposed in the High Court at Auckland. Shaw was convicted of manufacturing methamphetamine, possession of methamphetamine for supply, supplying a class B controlled drug, forgery, and unlawful possession of a firearm. He was sentenced to 11 years and five months' imprisonment, with a minimum period of imprisonment (MPI) of five years and nine months. Shaw appealed the sentence, arguing that it was manifestly excessive and that the imposition of the MPI was unjustified.

The primary legal issue before the Court of Appeal was whether the sentence was excessive and whether the imposition of the MPI was warranted. The Court considered the nature and scale of Shaw's involvement in the drug manufacturing operation, his role within the group, and his early guilty plea. The Court also examined the personal circumstances of Shaw, including his acceptance of responsibility, genuine remorse, low risk of reoffending, and the care of a disabled child.

The Court held that while the sentence of 11 years and five months' imprisonment was within the appropriate range for the offences, the imposition of the MPI was not justified. The Court recognised that Shaw's personal circumstances, including his early guilty plea, genuine remorse, low risk of reoffending, and the care of a disabled child, were exceptional and outweighed the need for an MPI. The Court also noted that the sentence itself sent a sufficient deterrent signal to others involved in similar offences.

The Court of Appeal allowed the appeal against the imposition of the MPI, quashed that component of the sentence, and granted the application for an extension of time to appeal. The determinate sentence of 11 years and five months' imprisonment remained in place.

Orders