Tomars v R - [2013] NZCA 54

IN THE COURT OF APPEAL OF NEW ZEALAND

CA850/2012
[2013] NZCA 54

BETWEEN CHRISTOPHER MORRIS TOMARS
Appellant

AND THE QUEEN
Respondent

Hearing: 5 March 2013

Court: White, MacKenzie and Mallon JJ

Counsel: D R James for Appellant
P D Marshall for Respondent

Judgment: 14 March 2013 at 12.00pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

The appellant appeals against a sentence of two years three months imprisonment imposed by Heath J in the High Court at Whangarei on 3 December 2012 on nine charges of offering to sell cannabis, five of selling cannabis, and three of possessing cannabis for supply.[1] The District Court had declined jurisdiction following the entry of guilty pleas in that Court.
The offending was detected during the course of a police operation in Northland targeting places at which the police believed cannabis was being sold. The offending occurred in the period between 16 December 2011 and 28 June 2012. The five charges of sale, two of the charges of possession, and two of the charges of offering to sell involved offers or sales of ‘tinnies’ and ounce bags to special duty police officers. The remaining seven charges of offering to sell arose from text messages on the appellant’s cellphone discussing ounce quantities. One charge of possession arose from execution of a search warrant at the appellant’s home. A plastic shopping bag containing a mixture of cannabis leaf and cannabis head material was located, as well as two snap lock bags containing in total approximately one and a half ounces (42 grams) of cannabis head.
[1] R v Tomars [2012] NZHC 3241.
The Judge fixed a starting point of three years. He said:
[8] The first thing I am required to do is to identify the nature of the dealing operation. This was commercial dealing. It was for financial gain. You showed an ability to procure supplies readily. That is then confirmed by your sales in both ounces and tinnies. It suggests a medium size operation.
[9] The starting point I must take is in the range between two and four years imprisonment. Being as generous as I can, I would put that at the midpoint and use a starting point for sentence of three years imprisonment.
The Judge then considered personal factors and made no adjustment to the starting point on that account. Finally, he allowed a credit of 25 per cent to recognise the early guilty pleas. That left an end sentence of two years three months imprisonment. The Judge noted that meant that home detention was not available. He commented that the appellant’s counsel had made out a good case for home detention had it been possible for that to be done.
Mr James for the appellant submits that a sentence of home detention should have been imposed. He advances two alternative bases for the proposition that the sentence of imprisonment otherwise imposed should have been two years or less. First, he submits…

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 Tomars v R

Details

AGLC: Tomars v R [2013] NZCA 54
Case: [2013] NZCA 54
Decision Date: 14 March 2013

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Christopher Morris Tomars, appealed against a sentence of two years and three months imprisonment imposed by Heath J in the High Court at Whangarei on 3 December 2012. The appellant was sentenced on nine charges of offering to sell cannabis, five of selling cannabis, and three of possessing cannabis for supply. The District Court had declined jurisdiction following the entry of guilty pleas in that Court. The offending was detected during a police operation in Northland targeting places at which the police believed cannabis was being sold, occurring between 16 December 2011 and 28 June 2012.

The legal issues in the appeal were whether the starting point of three years imprisonment was manifestly excessive and whether the appellant’s personal circumstances warranted a lower starting point or a deduction from the starting point to achieve a sentence of two years or less. The appellant argued that the starting point was beyond the appropriate range for this offending and that the appropriate range was two years three months to two years nine months. The Crown, on the other hand, submitted that for a medium-sized commercial cannabis operation, a starting point at the middle of category 2 in R v Terewi was unassailable. The Court held that the appellant’s activities were best described as "a relatively low-grade but persistent commercial enterprise" rather than a medium-sized commercial cannabis operation. The Court also found that the Judge’s starting point was within the available range, and it was not manifestly excessive. Furthermore, the Court held that the Judge had not erred in the exercise of his discretion in making no allowance, upward or downward, for personal circumstances.

The Court of Appeal dismissed the appeal and held that the sentence was not manifestly excessive, or arrived at by reasoning which involved an error in principle. The appeal was dismissed, and the sentence of two years and three months imprisonment was upheld.

Orders