Smith v R - [2020] NZCA 586

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA118/2020
[2020] NZCA 586

BETWEEN	ANDREW MICHAEL SMITH Appellant
AND	THE QUEEN Respondent

Hearing:	27 August 2020
Court:	Courtney, Wylie and Muir JJ
Counsel:	P J Kaye for Appellant M Davie for Respondent
Judgment:	24 November 2020 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

The appellant, Andrew Smith, appeals an end sentence of six years’ imprisonment imposed by Judge Neave in the District Court at Christchurch on 19 February 2020 in relation to the following offending:[1]
(a)two representative charges of supplying methamphetamine;[2]
(b)one charge of conspiracy to possess methamphetamine for supply;[3]
(c)one charge of possession of methamphetamine for supply;[4] and
(d)one charge of causing grievous bodily harm with intent to injure.[5]
[1]R v Smith [2020] NZDC 3140 [Sentencing notes]. Although the summary of facts and notice of appeal also referred to a charge of perverting the course of justice and false representation with a New Zealand Passport, it appears that the sentencing that is the subject of the appeal related only to the drug-related offending, and we proceed on that basis.
[2]Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a).
[3]Section 6(1)(f) and (2A)(a).
[4]Section 6(1)(f) and (2)(a).
[5]Crimes Act 1961, s 188(2).
The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011 and falls to be determined in accordance with s 250 of that Act. An appeal against sentence can only be allowed if the Court is satisfied both that there has been an error in the sentence imposed, and that a different sentence should be imposed.[6]
[6]Criminal Procedure Act 2011, s 250(2) and (3).
It is common ground that the Judge made an error when applying discounts for mitigating factors that led to the end sentence of six years’ imprisonment rather than the five years that the Judge clearly intended. Mr Smith asserts not only that this error should be corrected, but that even a sentence of five years would have been manifestly excessive as a result of the Judge taking too high a starting point and allowing too little by way of discount for his personal circumstances.
The Crown accepts that the Judge’s error should be corrected and says that it would be appropriate for the Court to reduce the end sentence to five years. However, it says that a sentence of five years would be lenient and ought not to be reduced further.

Factual background

Methamphetamine-related offending

In September 2017, the police initiated an investigation into methamphetamine dealing activities involving Mr Smith, Connie Ross (his mother) and various other co‑defendants who worked for Mr Smith, in particular Mark Powhiro. All of the co‑defendants were associated with the Tribesmen motorcycle gang.
In October 2017, the police obtained a surveillance device warrant and started intercepting Mr Smith’s private communications. Those communications established that Mr Smith was heavily involved in the sale and distribution of methamphetamine.…

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 R

Details

AGLC: Smith v R [2020] NZCA 586
Case: [2020] NZCA 586
Decision Date: 24 November 2020 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by Andrew Michael Smith against the sentence imposed by the District Court at Christchurch. Smith was convicted of multiple charges related to the supply of methamphetamine, conspiracy to possess methamphetamine for supply, possession of methamphetamine for supply, and causing grievous bodily harm with intent to injure. The appeal focused on the end sentence of six years’ imprisonment imposed by Judge Neave on February 19, 2020. The appeal was brought pursuant to the Criminal Procedure Act 2011, and the Court of Appeal had to determine if there was an error in the sentence imposed and if a different sentence should be imposed.

The primary legal issues were whether the Judge made an arithmetical error in the sentencing calculation and whether the starting point and discounts applied were appropriate. The appeal also questioned whether the end sentence of six years was manifestly excessive. The Crown accepted the arithmetical error but argued that a sentence of five years would be appropriate, while Smith contended that even a five-year sentence would be excessive.

The Court of Appeal concluded that the Judge's arithmetical error should not be corrected as it would be unjust to leave the grievous bodily harm offending unrecognised. The Court found that the starting point of nine years for the drug-related offending was not excessive, considering the quantity of methamphetamine involved and Smith's leading role. The Court also noted that the Judge had been lenient in applying discounts for mitigating factors. The Court determined that the end sentence of six years was not manifestly excessive and dismissed the appeal.

The final orders were that the appeal is dismissed, and the sentence of six years’ imprisonment remains in place.

Orders