Smith v Police - [2018] NZHC 878

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-044-4531

[2018] NZHC 878

BETWEEN
ELIAS VALENTIN SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 May 2018

Appearances:

M Dyhrberg QC and H G de Groot for Appellant D R Green for Respondent

Judgment:

1 May 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
M Dyhrberg QC, Auckland H G de Groot, Auckland Meredith Connell, Auckland

SMITH v NEW ZEALAND POLICE [2018] NZHC 878 [1 May 2018]

Introduction

[1] On 13 April 2018, Elias Valentin Smith was convicted and sentenced on 14 charges under the Misuse of Drugs Act 1975 (the “Act”). Judge Collins imposed two years and three months’ imprisonment for these charges, from a starting point of six years’ imprisonment.1

[2] Mr Smith appeals his sentence on grounds it is manifestly excessive. In particular:

(a)the starting point was too high because the Judge wrongly:

(i)combined two charges of attempting to import LSD as the lead offending;

(ii)relied on inappropriate case authorities; and

(iii)imposed a sentence disproportionate to that received by Mr Smith’s co-offender; and

(b)discounts allowed for his rehabilitation and autism spectrum disorder were too low, and the Judge failed to allow any discount for remorse or good character.

Mr Smith’s counsel, Marie Dyhrberg QC, submits the Court should properly impose a sentence of under two years’ imprisonment, which should then be commuted into a sentence of home detention – the outcome she had urged on Judge Collins. She expressly accepts the Judge’s 12-month uplift for other offending, and his two year discount for youth “were within the bounds of discretion”.

Factual background

[3] There is concern about importation into New Zealand of illegal drugs acquired through the ‘dark web’, with payment made through cryptocurrency such as Bitcoin. Mr Smith became involved in this emerging method of drug importation at the age of

1 R v Smith [2018] NZDC 7141 [District Court decision].

17, while completing his first year of university. He soon invited a fellow student to join him, Nicholas Barker, by receiving drug importations at Mr Barker’s home.2 Mr Barker has pleaded guilty to his involvement in these matters. He was sentenced to 10 months’ home detention, and 100 hours of community work.

[4] On 20 March 2017, Mr Smith pleaded guilty to 14 charges which fall into three categories of offending:3

(a)attempt offending:

(i)two charges of attempting to import 80 tabs and 760 tabs, respectively, of the class A drug lysergic acid diethylamide (LSD), which was taken as the lead offending;
(ii)attempting to import an unknown amount of the class B drug fentanyl;
(iii)attempting to import 7 grams of the Class B drug amphetamine;

(b)supplying and offering to supply offending:

(i)supplying LSD (one tab);

(ii)offering to supply LSD (amount unspecified);

(iii)supplying the Class A drug 2,5-dimethoxy-4- methlamphetamine (two doses);
(iv)offering to supply 2,5-dimethoxy-4-methlamphetamine (amount unspecified);
(v)supplying the class B drug MDMA (two doses);

(vi)offering to supply the class B drug MDMA (amount unknown); and
(vii)offering…

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 Smith v Police

Details

AGLC: Smith v Police [2018] NZHC 878
Case: [2018] NZHC 878
Decision Date: 1 May 2018

CaseChat Overview and Summary

Elias Valentin Smith appeals his sentence for drug importation and supply under the Misuse of Drugs Act 1975. Smith was convicted and sentenced to two years and three months’ imprisonment by Judge Collins, who set a starting point of six years’ imprisonment. Smith argues the starting point was too high due to the combination of two charges, reliance on inappropriate case authorities, and disproportionality compared to his co-offender. Smith further argues discounts for rehabilitation and autism spectrum disorder were too low and no discount was given for remorse or good character. The Court of Appeal must determine if there was an error in the sentence and whether a different sentence should be imposed. The court found the starting point of six years was excessive and substituted a sentence of 11 months’ home detention with special conditions.

Orders