Thomas v The the King - [2022] NZHC 2494

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000274

[2022] NZHC 2494

BETWEEN
STEPHEN CHARLES THOMAS

Appellant

AND

THE KING

Respondent

Hearing: 27 September 2022

Counsel:

DB Stevens for Appellant BS Rorrison for Respondent

Judgment:

3 October 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 3 October 2022 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Auckland. DB Stevens, Auckland.

THOMAS v R [2022] NZHC 2494 [3 October 2022]

The case

[1] Stephen Thomas received a sentence of 10 months’ home detention and 100 hours’ community work for possessing cannabis for the purpose of supply.1 He appeals sentence. An appeal must be allowed if there was an error in the sentence and a different one should be imposed.2 Or, in short, if the sentence is manifestly excessive.3

Background

[2] Police executed a search warrant at Mr Thomas’ Torbay home 25 September 2019. They found 738 grams of cannabis head packaged in several bags. Police also found digital scales, many unused self-sealing plastic bags, another 34 grams of cannabis head (in two bags) and $12,200 cash.

[3] Mr Thomas unsuccessfully challenged the legality of the search. He pleaded guilty to a single charge of possessing cannabis for supply 11 June 2021.

[4] Mr Thomas filed an affidavit before sentencing. He described himself as a long-time user of cannabis, in part for pain relief. He said he had “no idea” how much cannabis was in his home and he traded cannabis with friends using “a barter system”. Mr Thomas said the cash was the product of lawful work. The Crown appears to have accepted the explanation; it abandoned a forfeiture application in relation to the cash.

[5] Mr Thomas also filed affidavits from others, saying Mr Thomas was of good character. Mr Thomas was aged 60 by the time of sentencing.

[6] In July 2010, Mr Thomas was convicted of possessing utensils in relation to methamphetamine. In December the same year, he was twice convicted of possessing cannabis for the purpose of supply. He received a four-month sentence of home detention beginning 9 August 2011.

1      R v Thomas [2022] NZDC 15021.
2      Criminal Procedure Act 2011, s 250(2).
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[7] Judge B A Gibson considered the offending fell within band two of R v Terewi.4 He adopted a starting point of two years and four months’ imprisonment. The Judge deducted 15 percent for Mr Thomas’ guilty plea and commuted what would otherwise have been a sentence of 24 months’ imprisonment to 10 months’ home detention and 100 hours’ community work.

The appeal

[8] Mr Thomas argues the starting point was too high, guilty plea credit insufficient, and allowance should have been made for good character and time on bail. On his behalf, Mr Stevens contends the appropriate sentence should be community detention and intensive supervision.

Analysis

[9] Mr Stevens’ identifies several decisions in…

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 Thomas v The the King

Details

AGLC: Thomas v The the King [2022] NZHC 2494
Case: [2022] NZHC 2494
Decision Date: 3 October 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Stephen Charles Thomas appealed his sentence for possessing cannabis for the purpose of supply, arguing that the starting point was too high, the guilty plea credit was insufficient, and allowance should have been made for his good character and time on bail. The court considered whether there was an error in the sentence that warranted a different one, or if the sentence was manifestly excessive. The court heard arguments from counsel for both parties, with DB Stevens representing the appellant and BS Rorrison representing the respondent.

The court considered whether the starting point was appropriate, whether the guilty plea credit was sufficient, and whether good character and time on bail should have been taken into account. The court found that the starting point of two years and four months was appropriate, as the offending fell within band two of R v Terewi, and there was no significant commerciality. The court also found that the guilty plea credit was not sufficient, as the appellant did not plead guilty at the first reasonable opportunity. The court found that good character and time on bail were not relevant, as the appellant had previous cannabis offending and his acknowledgement of enduring cannabis possession and use.

The court found that the sentence was not manifestly excessive and dismissed the appeal. The court noted that the appellant could raise the issue of his ability to work with his probation officer, as a probation officer may allow a defendant to leave home to seek or engage in employment.

Orders