Mr Smith was the wholesale level supplier of at least 15 kilograms of methamphetamine to a Mongrel Mob distribution network in the Wellington region. A few weeks prior to trial Mr Smith pleaded guilty to the following charges: methamphetamine supply (x 2);[1] methamphetamine supply (representative);[2] possession of methamphetamine;[3] and unlawful possession of a firearm and unlawful possession of ammunition.[4] Collins J sentenced him to 13 years and six months’ imprisonment on the methamphetamine supply charges. A minimum period of imprisonment of 50 per cent, or six years and nine months, was imposed.[5]
[1]Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a): maximum penalty of life imprisonment.
[2]Section 6(1)(c) and (2)(a): maximum penalty of life imprisonment.
[3]Section 7(1)(a) and (2)(a): maximum penalty of six months’ imprisonment and/or fine of $1,000.
[4]Arms Act 1983, s 45: maximum penalty of four years’ imprisonment and/or fine of $5,000.
[5]R v Smith [2018] NZHC 2118 [Sentencing notes]. Concurrent sentences of six months on the Arms Act charges and one month on the methamphetamine possession charge were imposed.
Mr Smith now seeks to appeal his sentence on the basis that it was manifestly excessive. He submits the starting point was too high and that insufficient discounts were applied for his personal circumstances and for his guilty pleas. He also contends that a minimum period of imprisonment is not justified in his case.

Extension of time

The proposed appeal being filed 237 days out of time, leave is required for an extension of time. The question is whether it is in the interests of justice, taking into account all relevant circumstances, to grant the extension.[6] Two questions arise: first, why the proposed appeal was filed so late and, secondly, whether it has merit. For the Crown Ms Fuhr very properly accepts that, in reality, the second question will be determinative of the interests of justice and, therefore, the application for leave.
[6]R v Lee [2006] 3 NZLR 42 (CA) at [96]–[99]. See also R v Knight [1998] 1 NZLR 583 (CA) at 587.
As to the first question, the reason for the delay, no affidavit was filed by Mr Smith. In R v Lee, this Court said “[a] long delay is a major factor weighing against leave being granted and, if unexplained, would usually be decisive.”[7] The absence of affidavit evidence is most unsatisfactory, although Ms Pecotic (for Mr Smith) gamely takes the blame. However her efforts to explain the delay in the absence of an affidavit were lame. Mr Smith is plainly a…

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 221
Case: [2020] NZCA 221
Decision Date: 8 June 2020 at 10 am

CaseChat Overview and Summary

The case of Smith v R involved an appeal against the sentence imposed by the High Court. The applicant, Geoffrey Wayne Smith, had been convicted of multiple charges, including methamphetamine supply, possession of methamphetamine, and unlawful possession of a firearm and ammunition. Smith was sentenced to 13 years and 6 months' imprisonment, with a minimum non-parole period of 6 years and 9 months. Smith sought to appeal his sentence on the basis that it was manifestly excessive.

The legal issues in the case included whether the starting point for sentencing was too high, whether sufficient discounts were applied for Smith's personal circumstances and guilty pleas, and whether a minimum period of imprisonment was justified in his case. The Court of Appeal considered the revised sentencing guidelines for methamphetamine offending, the role played by Smith in the offending, and the personal circumstances of the offender.

The Court concluded that the starting point of 17 years' imprisonment was appropriate, given Smith's role as an upper-level significant player in the distribution chain. The Court also found that the discounts applied for Smith's personal circumstances and guilty pleas were appropriate. Finally, the Court held that the imposition of a minimum period of imprisonment of 50% was justified, given the substantial profit-driven nature of the offending.

Based on these findings, the Court of Appeal held that the proposed grounds of appeal against sentence lacked merit, and therefore, the interests of justice did not require an extension of time to be granted. The application for an extension of time to appeal was declined.

Orders