The Queen v Evans - [2006] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND
CA444/05
THE QUEEN
v
MARK LEWIS EVANS
Hearing:23 May 2006

Court:O'Regan, Arnold and Ellen France JJ
Counsel:A J S Snell for Appellant

S B Edwards for Crown

Judgment:7 June 2006

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence imposed in the High Court is quashed and replaced by a sentence of 16 months imprisonment.
CLeave to apply for home detention is granted.

REASONS
(Given by O’Regan J)
Introduction
[1]       The appellant was convicted in the District Court at Hastings on one charge of possessing cannabis for supply. The District Court declined jurisdiction and he was remanded to the High Court at Napier for sentencing. He was sentenced by Williams J in the High Court at Napier to a term of imprisonment of two years six months. He appeals against that sentence.
Background
[2]       The appellant was transporting cannabis in his vehicle. The vehicle was involved in an accident. As a result of this, the appellant left a number of packages he was carrying with a nearby garage. The packages were later discovered by police. They contained approximately 500 grams of cannabis together with a set of electronic scales. The majority of the cannabis was located in individual snap-lock bags. The street value of the cannabis was estimated as falling between $3500 and $5600.
[3]       The appellant entered a guilty plea under s 153A of the Summary Proceedings Act 1957 within a month of being charged.
Sentence
[4]       Williams J found that the appellant was in category two of R v Terewi [1999] 3 NZLR 62 with the result that a two to four year starting point was applicable.
[5]       The Judge took a three year starting point. The amount of the cannabis together with its packaging and value were considered as aggravating factors which took the sentence to three years and nine months’ imprisonment before mitigating circumstances were considered.
[6]       The Judge then turned to mitigating factors, which consisted primarily of the early guilty plea. This took the final sentence to two years and six months’ imprisonment.
Submissions
[7]       Counsel for the appellant, Mr Snell, submitted that the Judge failed to take into account the full circumstances of the case. At sentencing, the appellant maintained that he was merely transporting the cannabis to another location. He acknowledged that the bulk of the cannabis was not for him: he said he was to receive approximately one ounce as a reward for acting as a courier. Crown counsel, Ms Edwards, contended that the Judge did not reject this explanation, but clearly took the view that the quantity and value of the cannabis, together with the packaging, were factors to be taken into account in assessing the appellant’s culpability as a person willing to become involved with a commercial drug dealing enterprise.
[8]       Mr Snell also submitted that the correct application of Terewi in this case would suggest that a lower starting point ought to have been adopted. Ms Edwards submitted that…

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 Evans

Details

AGLC: The Queen v Evans [2006] NZCA 116
Case: [2006] NZCA 116
Decision Date: 7 June 2006

CaseChat Overview and Summary

The case of The Queen v Evans involved the appellant, Mark Lewis Evans, who was convicted of possessing cannabis for supply. He appealed against the sentence imposed by the High Court at Napier, which was two years and six months imprisonment. The Court of Appeal of New Zealand heard the appeal and found that the sentence was manifestly excessive. The Court considered the nature of the offence, the quantity and value of the cannabis, and the mitigating factors presented by the appellant's counsel. The Court found that the starting point for sentencing should have been around two years, and that a discount of around one-third should have been applied, resulting in a final sentence of around 16 months imprisonment.

The Court of Appeal identified several legal issues in the case. Firstly, whether the starting point for sentencing was appropriate, considering the nature of the offence and the mitigating factors. Secondly, whether the discount applied for the early guilty plea and other mitigating factors was appropriate. Thirdly, whether the final sentence imposed was manifestly excessive, considering the range established in Terewi and subsequent sentencing decisions. Lastly, whether leave to apply for home detention should be granted.

The Court of Appeal found that the starting point for sentencing was too high, and that the discount applied for the early guilty plea and other mitigating factors was generous but justified. The Court concluded that the final sentence imposed was manifestly excessive, and that a sentence of 16 months imprisonment was more appropriate. The Court also granted leave to the appellant to apply for home detention, considering his previous good record and positive involvement in the community.

The Court of Appeal allowed the appeal, quashed the sentence imposed in the High Court, and replaced it with a sentence of 16 months imprisonment. The Court also granted leave to the appellant to apply for home detention. The decision of the Court of Appeal was based on a careful consideration of the nature of the offence, the quantity and value of the cannabis, and the mitigating factors presented by the appellant's counsel. The Court's decision provides guidance on the appropriate starting point for sentencing in cases involving possession of cannabis for supply, and the appropriate discount for early guilty pleas and other mitigating factors.

Orders