Whale v The Queen - [2020] NZHC 3469

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-000123

[2020] NZHC 3469

BETWEEN
QUINTIN BRETT WHALE

Appellant

AND

THE QUEEN

Respondent

Hearing: 14 December 2020 (Heard at Tauranga)

Appearances:

Craig Tuck and Thomas Harre for the Appellant Justine Sutton for the Respondent

Judgment:

21 December 2020

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 21 December 2020 at 12:30 pm.

Registrar/ Deputy Registrar Date:

WHALE v R [2020] NZHC 3469 [21 December 2020]

Introduction

[1] Mr Whale pleaded guilty to one charge of possessing methamphetamine for supply.1 Judge P G Mabey in the Tauranga District Court on 16 September 2020 sentenced him to seven years’ imprisonment.2

[2] He now appeals that sentence on the sole ground that the Judge failed to take into account Mr Whale’s addiction as a mitigating factor.

The offending

[3] On 27 March 2019, the Police executed a search warrant at Mr Whale’s address. Located in a locked tool cabinet was approximately 915 grams of methamphetamine packaged into 33 self-sealing shrink-wrapped bags. Mr Whale was the only person with a key to this cabinet. Stored with the methamphetamine were electronic scales, shrink wrap, a shrink-wrap sealing machine and $3,200 in cash.

[4] Also found at Mr Whale’s home were ingredients connected to manufacture. Mr Whale has been charged with offences relating to this aspect and is defending them.

Previous criminal history

[5] Mr Whale is 41 years’ old. He has nine previous convictions, none of which relates to methamphetamine or serious offending. These include possession of an offensive weapon (x 2), breaching community work, breaching a liquor ban (x 2), receiving stolen property (x 2), theft of a motor vehicle and possession of cannabis.

Reports

[6] The PAC report, prepared on 25 June 2020, records Mr Whale as saying he started using methamphetamine in 2018. This eventually reached the point where he was using 4 to 5 grams per day. He admitted that he started selling methamphetamine to friends. He said this was only to cover his costs. He was adamant that he was not in possession of the methamphetamine for supply. He claims he was looking after it

1 Misuse of Drugs Act 1975, ss 6(1) and (f). Maximum penalty is life imprisonment.
2 R v Whale [2020] NZDC 19043.

for an associate and believed he was “set up”. The report writer described Mr Whale as a “business minded individual” and given the potential revenue that may be made selling and distributing methamphetamine, his risk of reoffending in a similar way was assessed as medium. The report writer discussed his background, noting that he had a difficult childhood. He was adopted into a turbulent family environment. By 2018, both he and his wife were using methamphetamine daily. He regretted the effect this had on his children. He told the report writer that he was in a new relationship with someone he met at the Hamner Clinic. She confirmed to…

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 Whale v The Queen

Details

AGLC: Whale v The Queen [2020] NZHC 3469
Case: [2020] NZHC 3469
Decision Date: 21 December 2020

CaseChat Overview and Summary

In Whale v The Queen, the High Court of New Zealand considered an appeal against sentence imposed by the Tauranga District Court on Quintin Brett Whale, who had pleaded guilty to possessing methamphetamine for supply. The appeal focused on whether the sentencing judge had erred by not considering Whale’s addiction as a mitigating factor. Whale’s counsel argued that his client’s addiction materially diminished his ability to exercise rational choice, which should have warranted a discount in sentencing. The Court of Appeal’s decision in Zhang v R was cited to highlight that offenders who engage in commercial-scale drug activities are unlikely to receive significant discounts for addiction.

The High Court found that the sentencing judge had appropriately set a starting point of 10 years, which was generous given the scale of Whale’s offending. The Court held that while addiction can be a mitigating factor, it must be supported by persuasive evidence rather than self-reporting. The evidence in Whale’s case, which relied heavily on his own statements, was deemed insufficient to establish a causal link between his addiction and the commercial nature of his offending. The Court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal against sentence.

Orders