Wire v Police - [2013] NZHC 2202

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-441-16 [2013] NZHC 2202

BETWEEN JAYDAN PETER WIRE Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 August 2013

Appearances:

E Forster for Appellant
K Laurenson for Respondent

Judgment:

28 August 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

WIRE v NEW ZEALAND POLICE [2013] NZHC 2202 [28 August 2013]

[1] Mr Wire pleaded guilty in the District Court to charges of supplying methamphetamine, conspiring to supply methamphetamine and offering to supply methamphetamine. On 28 May 2013, Judge Mackintosh sentenced Mr Wire to an effective term of three years imprisonment.1

[2] He now appeals against sentence on the basis that the Judge adopted a starting point that was too high. He says the starting point was too high because the Judge failed to have regard to the fact that a significant proportion of his offending related to drug-related activity that may not have led to the actual supply of methamphetamine. In other words, the Judge failed to give concrete recognition to the fact that two of the three charges related to offending in respect of which the Crown could not prove the actual supply of methamphetamine.

Background

[3] Mr Wire was arrested as a result of a police operation targeting those involved in the methamphetamine trade in the Hawkes Bay area. The police obtained a warrant authorising them to intercept the electronic communications of those suspected of dealing in methamphetamine. Mr Wire came to the attention of the police through intercepted text messages.

[4] The charges arose as a result of text messages to and from Mr Wire indicating that he was involved in the supply of methamphetamine. He had several sources from whom he obtained methamphetamine. He then on-sold it to others at a retail level.

[5] The intercepted communications spanned a period of approximately five weeks. During this period the police were able to gather evidence of 15 actual supplies of methamphetamine, although it is not possible to say exactly how much methamphetamine was involved. The police uncovered evidence of a further 48 instances in which Mr Wire offered to supply methamphetamine. On one of these occasions, he had offered to supply 42 grams of methamphetamine. In all, the police
were able to find reference to a total of approximately 70 grams of

1 R v Wire DC Napier CRI-2013-041-000129, 28 May 2013.

methamphetamine throughout the text messages. It is not possible, however, for the Crown to provide any reliable information as to how much methamphetamine Mr Wire ultimately actually supplied.

The structure of the sentence

[6] The Judge considered that, viewed overall, Mr Wire’s offending fell within Band 2 identified in R v Fatu.2 Band 2 applies to drug-dealing activity involving between five and 250 grams of methamphetamine. Offenders within this category can expect a starting point within the range of between three and nine years imprisonment.

[7] The Judge considered that an appropriate starting point was four and a half years imprisonment. She then discounted…

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 Wire v Police

Details

AGLC: Wire v Police [2013] NZHC 2202
Case: [2013] NZHC 2202
Decision Date: 28 August 2013

CaseChat Overview and Summary

In the case of Wire v New Zealand Police, the appellant, Jaydan Peter Wire, appealed against the sentence imposed by Judge Mackintosh in the District Court. Mr Wire was sentenced to an effective term of three years imprisonment after pleading guilty to supplying, conspiring to supply, and offering to supply methamphetamine. The basis for the appeal was that the starting point for the sentence was too high, as the Judge did not adequately consider that a significant proportion of Mr Wire's offending involved drug-related activities that did not necessarily result in the actual supply of methamphetamine. The appeal was heard by Lang J in the High Court of New Zealand, Napier Registry.

The legal issues in this case revolved around the appropriate starting point for Mr Wire's sentence and whether the Judge sufficiently took into account the nature of his offending. The appellant's counsel argued that the Judge should have reduced the starting point to reflect that a significant proportion of Mr Wire's offending involved conspiracy and offers to supply methamphetamine, which carry lesser maximum penalties compared to actual supply. The Crown, on the other hand, argued that the Judge was entitled to consider the totality of Mr Wire's offending, including the 15 actual supplies of methamphetamine and the potential transactions involving at least 70 grams of methamphetamine.

Lang J found that the Judge was entitled to regard four and a half years imprisonment as an appropriate starting point, given the nature and extent of Mr Wire's offending. The Judge's decision to apply a discount for Mr Wire's remorse, rehabilitation efforts, and guilty plea resulted in a sentence that was 33 per cent less than the starting point adopted. Lang J concluded that the sentence imposed by the Judge was not manifestly excessive, and therefore dismissed the appeal.

The final orders in this case were that the appeal against sentence was dismissed, and the original sentence of three years imprisonment imposed by Judge Mackintosh in the District Court was upheld.

Orders