The Queen v Harkins - [2008] NZCA 540

IN THE COURT OF APPEAL OF NEW ZEALAND
CA396/2008
[2008] NZCA 540
THE QUEEN
v
STEPHEN EARLE HARKINS
Hearing:24 November 2008

Court:Ellen France, Potter and MacKenzie JJ
Counsel:P J Kaye for Appellant

D G Johnstone for Crown

Judgment:8 December 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]       The appellant was sentenced by Courtney J on 5 June 2008 on a number of drug-related offences to an effective sentence of seven years six months imprisonment: HC AK CRI-2006-044-006243. A minimum period of imprisonment of three and a half years was imposed. He appeals against the sentence on the basis that it is manifestly excessive.
[2]       The appellant says the sentence is manifestly excessive for three reasons. The first is that the starting point of seven years imprisonment adopted by the Judge was too high. Secondly, the appellant says that the Judge erred in imposing the maximum sentence on the charge of possession of methamphetamine. Finally, the appellant submits that the offending did not warrant the imposition of a minimum period of imprisonment.
Factual background
[3]       The sentence in issue relates to two groups of offences. The first occurred in August 2006 at premises in Porana Road and the Silverfield Estate. The second group of offences took place in December 2006 in Queen Street, Auckland, when the appellant was on bail in relation to the first group of offences.
[4]       In the first group of offences, the appellant was found guilty of:
(a)       One representative charge of manufacturing methamphetamine;
(b)Two charges of possession of equipment for the purposes of manufacturing methamphetamine;
(c)Two charges of possession of precursor substances for the purposes of manufacturing methamphetamine; and
(d)Two charges of possession of materials for the purposes of manufacturing methamphetamine.

[5]       The appellant subsequently pleaded guilty to one charge of possession of a firearm and one charge of possession of an explosive, namely, ammunition.
[6]       The second group of offences relating to the Queen Street address to which the appellant pleaded guilty comprised:
(a)       One charge of possession of methamphetamine;
(b)One charge of possession of LSD; and
(c)One charge of possession of a drug instrument.

[7] The Judge described the Porana Road and Silverfield Estate offending in these terms at [9]:
These convictions resulted from the execution of a search warrant by the police in August 2006 in the commercial premises located at Porana Road and Silverfield Estate in Glenfield. [The appellant was] the lessee of both premises and [was] in fact living at the Silverfield address with [his] then partner and her young son. The ground floor of both premises had been set up as a methamphetamine lab. There was substantial equipment, blacked out windows, surveillance cameras fitted at both entranceways.

[8] The Judge described the second group of offending at [14] as follows:
[These offences] arose from a search warrant executed at [the appellant’s] apartment in Queen Street in December 2006. At that stage, [the appellant was] on…

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 Harkins

Details

AGLC: The Queen v Harkins [2008] NZCA 540
Case: [2008] NZCA 540
Decision Date: 8 December 2008

CaseChat Overview and Summary

The appellant, Stephen Earle Harkins, appealed against his sentence of seven years six months imprisonment for drug-related offences, arguing that it was manifestly excessive. The appellant submitted that the starting point of seven years imprisonment was too high, the Judge erred in imposing the maximum sentence for possession of methamphetamine, and that the offending did not warrant the imposition of a minimum period of imprisonment. The court considered whether the starting point was too high, whether there was double counting in relation to the firearm, and whether the maximum term for possession of methamphetamine was justified. The court concluded that the starting point was appropriate and that there was no double counting in relation to the firearm. The court found that the maximum term for possession of methamphetamine was justified due to the totality of the offending. The court also found that the imposition of a minimum period of imprisonment was justified due to the extent and sophistication of the manufacturing operation, the presence of toxic fumes, and the fact that the appellant was willing to continue offending while on bail.
The appeal was dismissed. The court found that the sentence was appropriate and did not exceed the limits of what was reasonable in the circumstances. The court emphasised that the sentence was not disproportionate and that the appellant's arguments did not provide sufficient grounds for reducing the sentence. The court found that the sentence reflected the seriousness of the offending and the need for punishment, denunciation, and deterrence. The court also found that the imposition of a minimum period of imprisonment was justified due to the extent and sophistication of the manufacturing operation, the presence of toxic fumes, and the fact that the appellant was willing to continue offending while on bail.

Orders