The Queen v Anderson - [2007] NZCA 288

IN THE COURT OF APPEAL OF NEW ZEALAND
CA464/06
[2007] NZCA 288
THE QUEEN
v
KYLE JOHN ANDERSEN
Hearing:20 June 2007

Court:O'Regan, Harrison and Heath JJ
Counsel:S J Gill for Appellant

S B Edwards for Crown

Judgment:11 July 2007 at 12 noon

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Introduction
[1]        Mr Andersen pleaded guilty to one count of manufacturing a Class A controlled drug, methamphetamine. The offending occurred between 1 July and 4 December 2004. The maximum penalty for the offence is life imprisonment.
[2]        On 24 November 2006, Lang J sentenced Mr Andersen to a term of imprisonment of eight years and six months. The Judge also imposed a minimum non-parole period of one half of that term, four years and three months.
[3]        Mr Andersen appeals against the sentence imposed on the grounds of manifest excess. There is no challenge to the imposition of a minimum non-parole period or to the proportion of the sentence adopted for the purpose of that period. However, were the appeal to be allowed, it would be necessary to adjust the length of that period.
The sentencing process
[4]        A disputed fact hearing was held before sentencing. Mr Andersen elected not to give or call evidence. We take our summary of the facts from Lang J’s sentencing remarks which followed the disputed facts hearing.
[5]        In December 2004, Mr Andersen was renting a property at 380 Te Atatu Road, Te Atatu North. He was living there with his partner, her 18 year old son and their two year old twin children. Two boarders also resided at the property.
[6]        A dispute arose between Mr Andersen and his partner on Saturday 4 December 2004. As a result, his partner left the address. She telephoned the Police to advise them of suspicions regarding the activities that had been taking place in a shed on the property. Attempts had been made by Mr Andersen to prevent her from telephoning the Police.
[7]        Once Mr Andersen realised that his partner had telephoned the Police, he returned to the house. He told his partner’s son and others present to leave because the Police were coming to the property.
[8]        A search of the property took place on the arrival of the Police. The Judge found that a “reasonably sophisticated methamphetamine laboratory” was located in the shed.
[9]        The Police located 13 containers in the shed, each of which contained quantities of waste liquid totalling 52 litres. Many were two layer liquids containing methamphetamine. Those liquids were consistent with waste produced during the manufacture of methamphetamine.
[10]     A variety of chemicals used in the manufacture of methamphetamine were also discovered; including toluene, hydrochloric acid and hypophospherous acid. Glassware, beakers and a hot plate, all items used in the manufacture of the drug, were found.
[11]     As part of the sentencing process the Crown produced a brief of evidence from Ms Ashleigh Meyn, a forensic scientist employed…

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 The Queen v Anderson

Details

AGLC: The Queen v Anderson [2007] NZCA 288
Case: [2007] NZCA 288
Decision Date: 11 July 2007

CaseChat Overview and Summary

In this case, the defendant, Kyle John Andersen, appealed against the sentence imposed on him by Lang J for manufacturing a Class A controlled drug, methamphetamine. The appeal was focused on the issue of manifest excess in the sentence, although there was no challenge to the imposition of a minimum non-parole period or the proportion of the sentence adopted for that purpose. Andersen's appeal was based on the argument that the sentencing judge's estimate of the quantity of methamphetamine manufactured was unreliable and, therefore, the starting point of the sentence was too high. Andersen's counsel also argued that too little credit was given for the guilty plea.

The Court of Appeal considered the evidence presented to the sentencing judge, including the evidence of a forensic scientist, and found that the sentencing judge was entitled to rely on this evidence and the other available evidence to form a view of the quantity of methamphetamine manufactured. The Court of Appeal was satisfied that the sentencing judge's finding that at least 375 grams of methamphetamine was manufactured was open to him on the evidence as a whole. The Court of Appeal also found that the starting point of nine years imprisonment, including an uplift of one year to reflect aggravating features relevant to the offender, was appropriate. Finally, the Court of Appeal considered that the credit given for mitigating factors, including the late guilty plea, was adequate.

The appeal against sentence was dismissed. The Court of Appeal found that the sentence imposed by Lang J was not manifestly excessive.

Orders