Thompson v Police - [2012] NZHC 2521

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000078 [2012] NZHC 2521

DANIEL JAMES THOMPSON
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 27 September 2012

Appearances: A J Bailey for Appellant
K B Bell for Respondent

Judgment: 27 September 2012

ORAL JUDGMENT OF FOGARTY J

[1] This is an appeal against sentence imposed in the District Court by Judge B P Callaghan. The appellant had pleaded guilty to two indictably laid informations of actual supply of methylphenidate, a Class B controlled drug, commonly known as Ritalin or rubifen. He had also pleaded guilty to a charge of selling cannabis and a further charge of offering to sell cannabis, offering to supply Ecstasy, a Class B controlled drug, and possessing a pill press.

[2] Looking at the offending as whole, the Judge took a starting point of two years, nine months imprisonment, that is, 33 months. The Judge went on:

You have previous convictions, albeit not for drugs but for criminal offending and in particular aggravated robbery – there must be an uplift of three months to 36 months.

THOMPSON V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000078 [27 September 2012]

[3] The Judge then went on to give a full Hessell discount for his guilty pleas of nine months. The Judge went on to make an allowance of two months for the steps he has taken for rehabilitation, bringing the period from 36 months down to
34 months. He then gave an allowance of nine months for the full benefit of a guilty plea, bringing the end sentence to 25 months, which is the sentence he imposed for the sale of the Class B controlled drug and the sentence for offering to supply the Class B controlled drug. On the other charges he imposed a concurrent sentence of
10 months.

[4] The appeal is founded on a decision of the Court of Appeal in R v Filo[1] and in particular paragraphs [21], [22] and [23]:
[1] R v Filo [2007] NSCA 20

[21] The appellant has two previous convictions for male assaults female and also two previous convictions for common assault. Previous convictions may properly be considered in the determination of an appropriate sentence for a person with a background of offending in related ways: R v Howe [1982] 1
NZLR 618 (CA). See also Veen v The Queen (No. 2) (1988) 164 CLR 465,
478 (HCA). As was noted by this Court in R v Casey [1931] NZLR 594 at
597:

… the previous convictions of a prisoner may indicate a prediliction to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

[22] The approach discussed in the authorities of R v Casey and R v Howe is consistent with s 9(1)(j) of the Sentencing Act 2002.

[23] In this case the Judge was entitled to uplift 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.

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Details

Case: [2012] NZHC 2521
Decision Date: 27 September 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, Daniel James Thompson appealed against the sentence imposed on him by Judge B P Callaghan in the District Court. The appellant had pleaded guilty to multiple drug-related charges, including the supply of methylphenidate, selling and offering to sell cannabis, and possessing a pill press. The primary legal issue before the court was whether the sentencing judge correctly applied the aggravating factors, specifically the relevance and nature of the appellant's previous convictions, under section 9(1)(j) of the Sentencing Act 2002.

The court examined the reasoning behind the sentencing judge's decision to uplift the starting point of two years, nine months to 36 months by considering the appellant's previous convictions for aggravated robbery. The Court of Appeal in R v Filo had previously held that previous convictions could be considered if they were recent and relevant to the current offending. The sentencing judge had considered the appellant's previous convictions but did not explicitly address the need for an uplift to deter the appellant from further offending. The High Court found that there was a possibility the sentencing judge had not correctly reconciled the competing principles of considering the offender's character and avoiding punishing the offender again for earlier offending, as discussed in Rautahi v R.

The High Court concluded that an uplift of three months was justified based on the recent expiry of the parole period for the appellant's previous criminal offending and the need to deter him from further criminal conduct. The court dismissed the appeal, affirming the sentence imposed by the sentencing judge.

Orders