Vertue v Police - [2019] NZHC 1025

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000030

[2019] NZHC 1025

BETWEEN
NICHOLAS MURRAY VERTUE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 May 2019

Appearances:

A N Riches for Appellant

J H Whitcombe for Respondent

Judgment:

10 May 2019

JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Mr Vertue, pleaded guilty in the District Court to two charges of possessing utensils for the purposes of using methamphetamine and one charge of possession of a Class A drug (methamphetamine). On 24 January 2019, Judge Phillips sentenced the appellant to 180 hours community work. The appellant appeals this sentence.

Facts

[2] On 19 September 2018, a search warrant was executed at the appellant's warehouse. Six glass pipes for consuming methamphetamine were located along with some "sniffing tools" for consuming drugs.

VERTUE v NEW ZEALAND POLICE [2019] NZHC 1025 [10 May 2019]

[3] Whilst he was on bail for the September 2018 charge, on Friday 9 November 2018, the appellant travelled by air from Christchurch to Auckland. Half a gram of methamphetamine, 5 millilitres of diluted methamphetamine, syringes and a glass pipe were located in his luggage. The appellant was charged and held in custody from that Friday evening to the next Monday morning.

District Court decision

[4] In his decision in the District Court, Judge Phillips outlined the history of the appellant’s offending, his background and noted his business role in the community where he employed a number of people. In particular, his Honour recorded what I have indicated above that the appellant had been on bail for the September charge at the time he was stopped at Christchurch airport for the November Charge. Judge Phillips said in his decision he considered the appellant was addicted to methamphetamine, and that he was “intelligent enough and solid enough to ‘walk away’ from it; to get treatment and assistance but it can only happen when [the appellant] accepts the problem.” The Judge then went on to say “You continue to deny it. Quite clearly, you wish to continue to use the drug. Well, you do so at your own risk really.”

[5] In his sentencing, his Honour then held that a fine was inappropriate here. He noted that although no aggravating or mitigating features were identified, as a businessman there was a need to deter and hold the appellant out as an example.

[6] On the September charge of possessing utensils, the Judge imposed a sentence of 50 hours community work. On the possession of utensils charge relating to a further pipe and syringes, 80 hours community work was imposed cumulatively. A further cumulative sentence of 50 hours community work was imposed on the charge of possession of methamphetamine. The end sentence imposed was therefore one of 180 hours’ community work.

Principles on appeal

[7] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that…

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: [2019] NZHC 1025
Decision Date: 10 May 2019

CaseChat Overview and Summary

The case of Vertue v Police involved an appeal against the sentencing decision of the District Court by Nicholas Murray Vertue, who had pleaded guilty to charges of possessing utensils for using methamphetamine and possession of a Class A drug. The court was required to determine whether the sentence imposed by Judge Phillips was appropriate or if there was an error warranting intervention by the High Court. The appellant argued that the sentence was manifestly excessive, citing various factors including the time spent in custody, character references, and negative drug test results. The respondent, New Zealand Police, contended that the sentence was appropriate and within the acceptable range for the offences committed.

The court considered the appellant's submissions and found that the Judge had not erred in concluding that the appellant's drug offending was of an ongoing nature, as evidenced by the re-offending while on bail. The court noted that addiction, even if present, was not an aggravating factor. Regarding the time spent in custody, the court acknowledged that the Judge did not explicitly address this in the sentencing notes, but considered that the overall focus should be on the correctness of the end result rather than the process by which the sentence was reached. The court concluded that the community work sentence imposed was an appropriate sentencing option, reflecting the totality of the appellant's offending and the nature of the offences committed.

The court dismissed the appeal, finding no appealable error in the sentence imposed by Judge Phillips. The appellant was directed to attend community probation service within 48 hours of receipt of the judgment.

Orders