After a jury trial presided over by Judge Menzies concluding on 7 April 2017 the appellant, Gregory Simon, was convicted of:
(a)driving while disqualified;
(b)possession of equipment with intent to manufacture methamphetamine;
(c)possession of a precursor substance with intent to manufacture methamphetamine; and
(d)possession of methamphetamine.
During trial Mr Simon had also pleaded guilty to:
(a)failing to stop for police;
(b)careless driving; and
(c)a further charge of possession of methamphetamine.
Mr Simon was found not guilty in respect of a charge of supply of methamphetamine. He was sentenced by Judge Menzies on the same day (having waived a pre‑sentence report) to a total of 32 months’ imprisonment.[1] He appeals both conviction and sentence. Because it is relevant to the sentence appeal we tabulate the charge outcomes and sentencing:
[1]R v Simon [2017] NZDC 7444.

Charge	Result	Maximum penalty	Sentence given
1	Driving while disqualified (third or subsequent)	Guilty (verdict)	Two years’ imprisonment or $6,000 fine; and mandatory one year disqualification (s 32(4) Land Transport Act 1998 (LTA))	Two months’ imprisonment (concurrent) and one year disqualification
2	Failing to stop (third or subsequent)	Guilty (plea)	Three months’ imprisonment and mandatory one year disqualification (s 52(4) LTA)	One year disqualification (cumulative)
3	Careless driving	Guilty (plea)	$3,000 fine and discretionary disqualification (s 37(2) LTA)	Convicted and discharged

4	Possession of equipment or material with intent to manufacture methamphetamine	Guilty (verdict)	Five years’ imprisonment (s 12A(3)(b) Misuse of Drugs Act 1975 (MODA))	32 months’ imprisonment (concurrent)
5	Possession of precursor substance with intent to manufacture methamphetamine	Guilty (verdict)	Five years’ imprisonment (s 12A(3)(b) MODA)	32 months’ imprisonment (concurrent)
6	Possession of methamphetamine	Guilty (plea)	Six months’ imprisonment or $1,000 fine (s 7(2)(a) MODA)	One months’ imprisonment (concurrent)
7	Supplying methamphetamine	Not guilty (verdict)	20 years’ imprisonment (s 6(2) MODA)	Discharge on basis of not guilty verdict
8	Possession of methamphetamine	Guilty (verdict)	Six months’ imprisonment or $1,000 fine (s 7(2)(a) MODA)	One months’ imprisonment (concurrent)

The charges arose following Mr Simon’s apprehension by the police while driving at night in Hamilton on 31 July 2015. Mr Simon was disqualified from driving at that time. The police noticed Mr Simon cut a corner and attempted to stop him. Mr Simon accelerated away and was only stopped by road spikes after a lengthy high-speed chase of about 20 minutes at speeds of up to 140 km/h. After all four of his tyres were punctured by the spikes he continued to drive on at speed until he crashed into an embankment.
During the pursuit a number of items were observed to be thrown out of 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 Simon v The Queen

Details

AGLC: Simon v The Queen [2017] NZCA 277
Case: [2017] NZCA 277
Decision Date: 3 July 2017 at 10 am

CaseChat Overview and Summary

In the case of Simon v The Queen, the Court of Appeal of New Zealand reviewed the conviction and sentence imposed on Gregory Simon. Simon was convicted of various drug-related and driving offenses, including possession of equipment and substances intended for methamphetamine manufacturing, possession of methamphetamine, driving while disqualified, failing to stop for police, and careless driving. Simon appealed both his conviction and the sentence imposed, arguing that there was an error in the summing-up regarding "potential control" and that his sentence was manifestly excessive. The Court of Appeal found that while the use of the term "potential control" in the summing-up was not ideal, it did not result in a miscarriage of justice, as the jury was adequately directed on the concept of possession. The Court also determined that Simon's sentence, though slightly higher than ideal, was not manifestly excessive and fell within the appropriate range, thus dismissing the appeal against conviction and sentence.

The Court's reasoning demonstrated a careful analysis of the legal principles involved in the concept of possession, particularly the physical and mental elements required to establish it. The Court acknowledged the historical use of the phrase "potential control" but clarified its understanding and application within the context of the case. The Court further evaluated the sentence by considering the nature and seriousness of the offenses, comparing it to similar cases, and assessing the appropriateness of the uplifts applied. The Court's decision ultimately upheld the conviction and sentence, reflecting a balanced approach to the appeal issues presented.

Orders