Wood v R - [2014] NZCA 183

IN THE COURT OF APPEAL OF NEW ZEALAND

CA689/2013
[2014] NZCA 183

BETWEEN	KIERAN WOOD Appellant
AND	THE QUEEN Respondent

Hearing:	2 April 2014
Court:	Randerson, Keane & Andrews JJ
Counsel:	I Jayanandan for Appellant J M O’Sullivan for Respondent
Judgment:	15 May 2014 at 12:30 pm

JUDGMENT OF THE COURT

Appeal against sentence dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

In July 2013, Kieran Wood was found guilty at trial in the Manukau District Court, of 19 sales between 17 February – 10 March 2011 of the class C drug, methylone, an analogue of MDMA (ecstasy), and of possessing it for supply on 10 March 2011. He was sentenced to imprisonment for two years, five months.[1]
[1]R v Wood DC Manukau CRI-2011-092-5888, 20 September 2013.
Mr Wood appeals his sentence first on the ground that the scale of his 19 sales offences (the quantity of tablets he sold) was a disputed aggravating fact on sentence as to which the trial Judge, Judge Blackie, could not be satisfied beyond reasonable doubt. The focus of the evidence at trial was on the elements of his offences, not their scale, and at trial Crown counsel emphasised that to the jury. Nor was the scale of those 19 offences established beyond reasonable doubt at a disputed facts hearing.
Mr Wood appeals his sentence on two other grounds, which are interrelated, the first of which is that the Judge took too high a starting point, three years, three months, compared with that taken in comparable cases. His offences, at age 21, lay in supplying party pills over three months on a small scale.
Mr Wood then contends, therefore, that his offending at most warranted a short‑term sentence of imprisonment, and that in imprisoning him the Judge erred in principle. The least restrictive outcome principle, he contends, required the Judge to impose on him a sentence of home detention.

Offences

On 10 March 2011, relying on information from two informants, the police executed a search warrant at Mr Wood’s parents’ address. In his bedroom they found 47 methylone tablets, the subject of his possession offence as to which there is no issue on this appeal, and $3,000 cash.
The police also obtained by warrant access to Mr Wood’s cellphone data and that search elicited several hundred text messages consistent, on the Crown case, with sustained commercial dealing commencing in January 2011.
Each of the 29 sale counts in the indictment rested on a transaction, particular to the count. The jury found Mr Wood not guilty of 10 of those offences, and guilty of 19. According to the particulars relating to those 19 counts Mr Wood sold 427 tablets between 17 February and 10 March 2011.

Sentence under appeal

In his remarks on sentence the Judge said that Mr Wood had been involved in retail supply in an “elaborate” and sophisticated” way.[2] He had been at the centre of a “substantial retail trade” in which he controlled the price of the drugs,…

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 Wood v R

Details

AGLC: Wood v R [2014] NZCA 183
Case: [2014] NZCA 183
Decision Date: 15 May 2014 at 12:30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Kieran Wood against his sentence for drug-related offences. Wood was found guilty of 19 sales and one possession of the drug methylone, and was sentenced to two years and five months in prison. Wood argued that the scale of his drug sales was not proven beyond reasonable doubt, that the starting point for his sentence was too high, and that the least restrictive outcome principle required a sentence of home detention instead of imprisonment. The Court found that the trial judge was entitled to assess the scale of Wood's offending based on the trial evidence and that the starting point for his sentence, though high, was open to the trial judge in principle. The Court also found that the sentence imposed did not offend the least restrictive outcome principle.

The Court of Appeal dismissed Wood's appeal against his sentence. The Court found that the trial judge was entitled to assess the scale of Wood's offending based on the trial evidence and that the starting point for his sentence, though high, was open to the trial judge in principle. The Court also found that the sentence imposed did not offend the least restrictive outcome principle. The Court did not consider it necessary to address the argument that the least restrictive outcome principle required a sentence of home detention instead of imprisonment, as the alternative sentence was not open in law. The Court concluded that the trial judge was right to sentence Wood for selling party pills on a commercial scale within category two, Terewi; that his starting point was open to him in principle; and that, in the sentence he imposed, he did not offend the least restrictive outcome principle.

Orders