Smith v The Queen - [2013] NZHC 1057

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2013-412-0008 [2013] NZHC 1057

BETWEEN RAMON SMITH Appellant

ANDTHE QUEEN Respondent

Hearing: 9 May 2013

Counsel: R D Smith for Respondent
J Ablett Kerr QC and D J Matthews for Appellant

Judgment: 10 May 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 10 May 2013 at 4.45pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
McKinnn Aitken Martin, PO Box 870, Dunedin Crown Solicitor, PO Box 803, Dunedin Counsel:
J Ablett Kerr QC, PO Box 46, Dunedin

SMITH V R HC DUN CRI 2013-412-0008 [10 May 2013]

The appeal

[1] Mr Smith seeks leave to appeal out of time against a sentence of nine months home detention, 200 hours community work and 12 months post home detention with special conditions imposed1 following his pleas of guilty to one charge of supplying a Class B controlled drug (Methylphenidate) and one of selling the Class C controlled drug, cannabis. Both charges were laid on a representative basis. Pleas of guilty to each charge were entered on 30 November 2012.

[2] The Police do not oppose an extension of time to appeal.

[3] Ms Ablett Kerr QC, for Mr Smith, submits that the Judge erred by applying an excessive starting point for what she submits was non-commercial offending. A starting point of two years imprisonment was taken, having regard to what was said by the Court of Appeal in its tariff judgment on Class B controlled drugs, R v
Wallace.2 The second point arises out of an alleged disparity with a sentence

imposed on another person whose offending was detected during the same Police operation, Ms Jacobs.3

Sentencing in the District Court

[4] Mr Smith was charged with supplying his female partner with the Class B controlled drug Methylphenidate, more commonly known as Ritolin. It was a representative charge covering the period between 15 August 2012 and 26 August
2012. He was also charged with selling the Class C controlled drug cannabis to a person over the age of 18 years, between 1 August 2012 and 30 October 2012.

[5] For some time, Mr Smith had been a drug addict. In March 2012, he consulted the Community Alcohol and Drug Service (CADS) in Dunedin and began to participate in its methadone programme. In a report dated 27 November 2012, a
medical officer from CADS advised the Court that Mr Smith continued to take

1      R v Smith DC Dunedin CRI 2012-012-3708, 31 January 2013 (Judge Fraser).
2      R v Wallace [1999] 3 NZLR 159 (CA) at para [32].
3      R v Jacobs DC Dunedin CRI 2012-012-3704, 29 January 2013 (Judge Fraser).

appropriate medication and that his concentration levels while at work had

“significantly improved”.

[6] Ms Ablett Kerr placed emphasis on Mr Smith’s potential. He has completed a degree in computer science from the University of Otago, notwithstanding his need to transfer from Victoria University of Wellington following his addiction to opiate…

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 The Queen

Details

AGLC: Smith v The Queen [2013] NZHC 1057
Case: [2013] NZHC 1057
Decision Date: 10 May 2013

CaseChat Overview and Summary

Ramon Smith sought leave to appeal out of time against a sentence of nine months home detention, 200 hours community work and 12 months post home detention with special conditions imposed following his pleas of guilty to one charge of supplying a Class B controlled drug (Methylphenidate) and one of selling the Class C controlled drug, cannabis. The Police did not oppose an extension of time to appeal. Ms Ablett Kerr QC, for Mr Smith, submitted that the Judge erred by applying an excessive starting point for what she submitted was non-commercial offending. The second point arose out of an alleged disparity with a sentence imposed on another person whose offending was detected during the same Police operation, Ms Jacobs. The High Court noted that despite the submissions of Mr Smith, the appellate authorities that he cited did not support the view that an overall starting point of two years and three months imprisonment could be justified as responding to the totality of this particular offending. The Court considered that a starting point of no more than two years imprisonment was appropriate to respond to Mr Smith’s culpability for the two sets of offending. The second issue concerned the question of parity with Ms Jacobs’ sentence. The Court held that the disparity, while plain, was not so “gross” as to justify interference with the sentence imposed on Mr Smith that the Court had already held to be within the bounds available to the Judge. For those reasons, an extension of time to appeal was granted but the appeal against sentence was dismissed.

Orders