Tregoweth v R - [2021] NZCA 311

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA231/2021
[2021] NZCA 311

BETWEEN	PETER JAMES TREGOWETH Appellant
AND	THE QUEEN Respondent

Hearing:	23 June 2021
Court:	French, Thomas and Muir JJ
Counsel:	O S Winter and G M Stone for Appellant M H Cooke for Respondent
Judgment:	25 June 2021 at 11 am
Reasons:	12 July 2021

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of two years and three months’ imprisonment is quashed and substituted by a sentence of two years’ imprisonment.
CThe following special release conditions are imposed:
(i)     The appellant is not to possess, consume or use any alcohol or drugs not prescribed to him.
(ii)     The appellant is to attend an assessment for alcohol and drug counselling, including an assessment for residential alcohol and drug treatment, as directed by his Probation Officer. He is to attend and complete any counselling, treatment or programme as recommended by the assessment or assessments as directed by and to the satisfaction of his Probation Officer.
(iii)    The appellant is to undertake and complete any other appropriate assessment, treatment and/or counselling as directed by and to the satisfaction of his Probation Officer.
DThe standard and special release conditions expire six months after the sentence expiry date.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

Introduction

When Peter Tregoweth was stopped, searched, and processed by the police, he was found to be in possession of a total of 5.8 grams of methamphetamine. However, a further 37.3 grams was found on him when he was in his prison cell. The Crown accepted that Mr Tregoweth had not intended to take the methamphetamine into prison, but rather that he had been arrested and had no way to dispose of it. Despite this, when Mr Tregoweth was being sentenced on three charges of possession of methamphetamine for supply, the Judge uplifted the starting point by three months, treating Mr Tregoweth’s introduction of methamphetamine into the prison as an aggravating feature.
In a results judgment issued on 25 June 2021, we have allowed Mr Tregoweth’s appeal against his sentence of two years and three months’ imprisonment and substituted a sentence of two years’ imprisonment.[1] We now give our reasons.

Background

Factual background

[1]Tregoweth v R [2021] NZCA 276.

At around 12.15 am on Tuesday 24 December 2019, Mr Tregoweth was stopped by a police patrol after a brief chase, first in his car and then on foot. The police searched Mr Tregoweth and found 2.8 grams of methamphetamine in his pocket. A search of his car revealed a number of weapons, some cannabis, a bong and methamphetamine pipe, four tabs of LSD and $5,680 in cash.
After a brief court appearance that morning, Mr Tregoweth was taken to Manawatū prison. A further three grams of methamphetamine was found on him during a strip search. The following day, a Department of Corrections officer noticed a sweet chemical smell coming from Mr Tregoweth’s cell. When…

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 Tregoweth v R

Details

AGLC: Tregoweth v R [2021] NZCA 311
Case: [2021] NZCA 311
Decision Date: 25 June 2021 at 11 am

CaseChat Overview and Summary

Peter Tregoweth was found in possession of methamphetamine on two occasions: initially, 2.8 grams were found on his person, and later, a further 37.3 grams were found on his person in his prison cell. He was convicted of three charges of possession of methamphetamine for supply and sentenced to two years and three months’ imprisonment. The Crown accepted that Mr Tregoweth had not intended to take the methamphetamine into prison. The Court of Appeal held that it was wrong to uplift the starting point by three months on the basis that he had the methamphetamine in his possession in prison, as he had not made a conscious decision to smuggle it into prison. The Court quashed the sentence of two years and three months’ imprisonment and substituted it with a sentence of two years’ imprisonment. The Court imposed special release conditions to address Mr Tregoweth’s addiction issues. These conditions include: (a) Mr Tregoweth is not to possess, consume or use any alcohol or drugs not prescribed to him; (b) Mr Tregoweth is to attend an assessment for alcohol and drug counselling, including an assessment for residential alcohol and drug treatment, as directed by his Probation Officer. He is to attend and complete any counselling, treatment or programme as recommended by the assessment or assessments as directed by and to the satisfaction of his Probation Officer; (c) Mr Tregoweth is to undertake and complete any other appropriate assessment, treatment and/or counselling as directed by and to the satisfaction of his Probation Officer. The standard and special release conditions are to expire six months after the sentence expiry date.

Orders