Todd v Police - [2016] NZHC 49

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000046 [2016] NZHC 49

BETWEEN
JACKSON JAMES TODD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 February 2016

Appearances:

S Saunderson-Warner for Appellant
C E R Power for Respondent

Judgment:

2 February 2016

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Dunedin
Copy to: S A Saunderson-Warner, Dunedin

TODD v NEW ZEALAND POLICE [2016] NZHC 49 [2 February 2016]

[1] On 17 November 2015 Mr Todd was sentenced to two years, two months imprisonment on a number of charges.1 He appeals against the sentence on the grounds that it is manifestly excessive.

[2] The offending on which Mr Todd was sentenced was recorded by the Judge as follows.

[3] First on 23 May 2015, Mr Todd drove a motor vehicle while the proportion of alcohol in his breath exceeded the allowable limit. He had 641 micrograms of alcohol per litre of breath.

[4] On 5 June Mr Todd breached a sentence of intensive supervision which had been imposed in January 2014. He failed to report as directed. On the same day, 5
June, he became involved in dealing in cannabis. Mr Todd faced a representative charge that between 5 and 12 June he was in possession of cannabis for the purposes of supply. An examination of text messages from his telephone revealed that he was regularly making arrangements to meet unknown persons at various secluded locations around Queenstown, at various times of the day.

[5] In addition to the representative charge Mr Todd faced a specific separate charge of possession of cannabis for supply relating to 14 June. At about1.15 am that day the police found him in the driver’s seat of his car outside a party they had been called to. When they approached Mr Todd they saw cannabis crumbs throughout the car and cannabis at his feet in a small zip up bag. The total amount of cannabis found pursuant to a search of Mr Todd’s car was 80 grams.

[6] On 14 June Mr Todd was driving in Cromwell in excess of the speed limit. When stopped by the police evidential breath testing procedures returned a concentration of 86 micrograms of alcohol per 100 millilitres of blood.

[7] Mr Todd then failed to answer District Court bail on 17 June 2015.

1 New Zealand Police v Todd [2015] NZDC 23195, per Judge M B T Turner.

[8] On 21 July 2015 Mr Todd was again found in a car. A search of the car located two grams of cannabis plant material together with a bong used for consuming cannabis.

[9] In structuring his sentence the Judge took the two charges of possession of cannabis for supply as lead offences. He noted the offending fell within category 2 of R v Terewi2 and took a starting point of two years, six months for that offending. He then uplifted that by three months to take account of previous drug offending (albeit not supply) and of the fact the offending…

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 Todd v Police

Details

AGLC: Todd v Police [2016] NZHC 49
Case: [2016] NZHC 49
Decision Date: 2 February 2016

CaseChat Overview and Summary

Jackson James Todd appealed against his two-year-two-month imprisonment sentence, arguing it was manifestly excessive. Todd had been convicted of various offences, including driving under the influence of alcohol, breaching a supervision order, possessing cannabis for supply, and failing to answer District Court bail. The trial judge structured the sentence around the possession of cannabis for supply charges, using a starting point of two years, six months, which was then uplifted by three months and discounted by 25% for early guilty pleas. The judge imposed concurrent sentences for other charges. Todd’s appeal hinged on the argument that the starting point for the cannabis charges was incorrect and that the sentence was too harsh.

The High Court reviewed the appeal under the Criminal Procedure Act 2011, considering whether the sentence was manifestly excessive or contained a material error. The court assessed the evidence of Todd’s involvement in cannabis supply, noting text messages and intercepted communications that suggested significant cannabis supply activities. The court found that the trial judge was correct to use a two years, six months starting point for the cannabis charges and concluded that the final sentence was within the appropriate range for the totality of Todd's offending. The court also noted the leniency of the discount given for early guilty pleas. Ultimately, the appeal was dismissed as the sentence was not found to be manifestly excessive.

The final order of the court was to dismiss the appeal against the sentence.

Orders