The Queen v Walker - [2008] NZCA 145

IN THE COURT OF APPEAL OF NEW ZEALAND
CA706/2007
[2008] NZCA 145
THE QUEEN
v
DARYL IAN GEORGE WALKER
Hearing:28 May 2008

Court:Glazebrook, Chisholm and Cooper JJ
Counsel:M H McIvor for Appellant

K Raftery for Respondent

Judgment:4 June 2008 at 4.00 pm

JUDGMENT OF THE COURT

AAn extension of time for appealing is granted.
BThe appeal is dismissed.

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REASONS OF THE COURT
(Given by Cooper J)
[1]       The appellant was charged under the Misuse of Drugs Act 1975 with possession of methamphetamine for supply, supply of methamphetamine, possession of cannabis for supply and possession of utensils. He was also charged under the Arms Act 1983 with unlawful possession of a firearm, explosives and under s 202A of the Crimes Act 1961 with possession of an offensive weapon. The jury found him guilty of the offending under the Misuse of Drugs Act. He pleaded guilty on arraignment to the other charges.
[2]       Asher J, who was the trial Judge, sentenced him to an effective term of four years’ imprisonment. The appellant now appeals against his sentence. The appeal was filed out of time, counsel having sent the papers to the prison where he wrongly thought the appellant remained detained. In the circumstances, the Crown does not oppose an extension of time for filing the appeal.
Facts
[3]       On 31 October 2006 a car being driven by the appellant in Hamilton was stopped by the police for the purposes of a routine inspection. There were two other persons in the car, one of whom, Mr Garden, later became a co-accused. When Mr Garden got out of the car, a tin container fell out of his clothes. It was subsequently established that the tin belonged to the appellant. In the container was just over one gram of methamphetamine. A search of the vehicle revealed 13.4 grams of cannabis in addition to a number of items suggesting commercial drug dealing. There were two sets of electronic scales, a butane lighter, a “tick book”, cut off straws able to be used as scoops, a torch, cotton buds and $615 in cash. Also discovered in the search were a sawn off .22 rifle, ammunition and an axe handle.
[4]       Later a search of the property occupied by the appellant and his co-offender resulted in the discovery of further electronic scales, a pipe and snap lock bags. A surveillance camera had been mounted at the address.
The sentence
[5]       Asher J noted that the quantity of methamphetamine found meant that the offending fell within Band 1 of the bands identified by this Court in R v Fatu [2006] 2 NZLR 72. There was no controversy about that issue at the sentencing hearing, or on appeal.
[6]       Asher J recorded the Crown’s submission that the appropriate starting point for sentencing purposes would be in the range of two years nine months’ to three years six months’ imprisonment in respect of the two most serious methamphetamine charges, with six to twelve month terms of imprisonment for the…

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 Walker

Details

AGLC: The Queen v Walker [2008] NZCA 145
Case: [2008] NZCA 145
Decision Date: 4 June 2008

CaseChat Overview and Summary

The case involves an appeal by the appellant, Daryl Ian George Walker, against his sentence imposed by Asher J. The appellant was convicted of possession of methamphetamine for supply, supply of methamphetamine, possession of cannabis for supply, possession of utensils, unlawful possession of a firearm, explosives, and possession of an offensive weapon. The appeal was filed out of time, and the Crown does not oppose an extension of time for filing the appeal. The court was required to decide if the starting point for sentencing on the methamphetamine related charges was too high when viewed with the cumulative sentence on the firearm charge and when compared with the sentences imposed in other cases. The court found that the starting point of three years six months for the methamphetamine charges was not too high, and the imposition of a cumulative term of six months in respect of the firearms charges did not result in a total sentence which was excessive. The overall sentence imposed was appropriate.

The court held that it was open to the Judge to conclude that the appellant was somebody involved in the on-going commercial supply of drugs on a not insignificant scale. This justified fixing a starting point towards the upper end of Band 1. The court further held that the Judge was entitled to take into account the various items found in the appellant’s possession, including the tick book as well as other common paraphernalia of drug dealing. The court found that the overall sentence imposed was not out of proportion to its overall gravity. The appeal was dismissed, and an extension of time for appealing was granted.

Orders