The Queen v Tanner - [2008] NZCA 210

IN THE COURT OF APPEAL OF NEW ZEALAND
CA4/2008
[2008] NZCA 210
THE QUEEN
v
KIERAN JAMES TANNER
Hearing:23 June 2008

Court:Ellen France, Gendall and Ronald Young JJ
Counsel:D G Slater for Appellant

S B Edwards for Crown

Judgment:7 July 2008 at 10.30 am

JUDGMENT OF THE COURT

AAppeal allowed.
BSentence of three years’ imprisonment for offering to supply methamphetamine quashed and substituted with sentence of two years’ imprisonment.

REASONS OF THE COURT
(Given by Gendall J)
[1]       The appellant was sentenced to three years’ imprisonment in the High Court at Invercargill, having been found guilty by a jury on one count of offering to supply the Class A drug methamphetamine, and four counts of offering to sell the Class C drug cannabis: HC INV CRI 2006-025-3586 12 December 2007. He appeals against that sentence.
Background
[2]       Over a period of about two weeks between 25 September 2006 and 8 October 2006, the police intercepted telephone conversations and retrieved text messages sent by the appellant which clearly pointed to him being involved in drug dealing. In particular the intercepted evidence disclosed that he had offered to sell methamphetamine on one occasion. Further, he offered to supply cannabis leaf on a number of occasions, which formed the basis of the four Class C drug charges.
[3]       The amount of methamphetamine the appellant offered to supply was one point, or one-tenth of a gram. The cannabis leaf offered for sale was bullets or “tinnies”, and it was clear that the appellant was involved in drug offending at a relatively low level.
[4]       The sentencing Judge, Chisholm J, who had presided at the appellant’s trial said he was not surprised that the appellant was found guilty, there being clear evidence of drug activities over a short period of about a month.
[5]       The appellant, after conviction, claimed that he was supplying cannabis only to his friends. The Judge noted that the appellant expressed remorse, although the Probation Officer considered him to be at high risk of reoffending. This was a realistic assessment if he continued to maintain the type of friends and social contacts that he had developed. Nevertheless, there were family and personal matters which gave some optimism towards rehabilitation.
[6]       The Judge took the offer to supply methamphetamine as the lead offence, given it is a Class A drug offence. Applying R v Fatu [2006] 2 NZLR 72 (CA), the Judge took a starting point of two and a half years’ imprisonment, the offending falling within Band 1 for sale or supply of methamphetamine. He then uplifted this by nine months to reflect what he said was previous offending, and the cannabis convictions. The Judge then deducted three months for the appellant’s youth and prospects of rehabilitation, reaching a final sentence of three years’ imprisonment on the lead charge. He imposed one year’s imprisonment, concurrent, on the other four cannabis related charges.
Discussion
[7]       Counsel for the appellant submitted that offering to supply was a lesser evil than actual supply. He…

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 Tanner

Details

AGLC: The Queen v Tanner [2008] NZCA 210
Case: [2008] NZCA 210
Decision Date: 7 July 2008

CaseChat Overview and Summary

The appeal in the case of The Queen v Kieran James Tanner was heard by Ellen France, Gendall, and Ronald Young JJ, with D G Slater representing the appellant and S B Edwards representing the Crown. The appellant, found guilty of offering to supply methamphetamine and offering to sell cannabis, challenged the three-year imprisonment sentence imposed by the High Court at Invercargill. The appeal focused on the appropriateness of the sentence, particularly whether it accurately reflected the totality of the appellant's offending.

The central legal issue was whether the sentence of three years' imprisonment was excessive given the nature and extent of the appellant's drug-related activities. The appellant argued that offering to supply methamphetamine did not warrant a starting point of two and a half years, and that the overall sentence was manifestly excessive. The Crown maintained that the sentence was appropriate, considering the totality of the appellant's offending and his commercial involvement in drug dealing. The court needed to balance the appellant's culpability with his youth and prospects of rehabilitation.

The court examined the totality principle, considering both the appellant's conduct and the severity of the drug-related offences. They noted that while offering to supply methamphetamine was a serious offence, the quantity involved was small. The court also considered the appellant's involvement in selling cannabis, which, although primarily commercial, involved relatively small quantities. The court concluded that the appellant's overall culpability justified a starting point of two years' imprisonment. After considering aggravating factors, such as the appellant's recent conviction and bail status at the time of the offending, and mitigating factors, such as his youth and potential for rehabilitation, the court found that the original sentence was too high. The court allowed the appeal, substituting the three-year sentence with a two-year sentence for the methamphetamine charge, while maintaining the concurrent one-year sentences for the cannabis-related charges.

Orders