X v The King - [2023] NZHC 2770

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-148

[2023] NZHC 2770

BETWEEN
X

Appellant

AND

THE KING

Respondent

Hearing: 28 September 2023

Appearances:

R J T George for Appellant

A R T Garrick for Respondent

Judgment:

3 October 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 3 October 2023 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

X v R [2023] NZHC 2770 [3 October 2023]

Introduction

[1] On [redacted], X was sentenced by Judge Hix in the District Court1 to 22 months’ imprisonment in respect of charges for supplying methamphetamine,2 offering to supply methamphetamine,3 possession for supply,4 receiving,5 possession of a firearm,6 and possession of a pipe.7

[2] X appeals this sentence on the grounds that the Judge imposed a manifestly excessive sentence by:

(a)adopting a starting point that was too high; and

(b)applying inadequate credit for mitigating circumstances.

Background facts

[3] Police obtained evidence of multiple communications by X over a period of eight months relating to the supply of methamphetamine. The total amount supplied or offered for supply was calculated to be at least 31.62 grams. I note though, that on a number of occasions the amount was undetermined and therefore no amount incorporated in this total or, where the amount was considered to be in a range, the total assumes it was at the lowest end of the range.

[4] After executing a search warrant at X’s address, Police found used methamphetamine utensils, 10.17 grams of methamphetamine, an “E-Bike” which had previously been reported as stolen, and a .177 calibre Gamo Air Rifle. They also found a BB gun pistol in the bathroom, along with electronic scales, cash, methamphetamine utensils and new zip lock bags.

1      [Redacted].
2      Misuse of Drugs Act 1975, s 6(1)(c) and (2); maximum penalty life imprisonment.
3      Section 6(1)(c) and (2); maximum penalty life imprisonment.
4      Section 6(1)(f) and (2); maximum penalty life imprisonment.
5      Crimes Act 1961, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
6      Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment or a fine not exceeding
$5,000 or both.
7      Misuse of Drugs Act, above n 2, s 13(1)(a) and (3); maximum penalty one year’ imprisonment or a fine not exceeding $500 or both.

District Court decision

[5] Judge Hix adopted a starting point for the methamphetamine offending of three years and three months’ imprisonment, placing X in the lower end of the second band in Zhang v R.8 He noted the methamphetamine offending was “an ongoing pattern” as the communications obtained by Police covered a period of approximately seven months and that the “flavour” of the messages showed X apparently encouraging people to engage in methamphetamine use, as well as an element of coercion to obtain payment from some people.9…

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 X v The King

Details

AGLC: X v The King [2023] NZHC 2770
Case: [2023] NZHC 2770
Decision Date: 3 October 2023

CaseChat Overview and Summary

X appeals against the sentence imposed by Judge Hix in the District Court, arguing it was manifestly excessive. The appeal was heard and dismissed by Dunningham J on 3 October 2023. The central issue was whether the District Court Judge erred in determining the starting point for X's sentence and the adequacy of the discount applied for mitigating factors. The District Court had imposed a starting point of three years and three months’ imprisonment for the methamphetamine charges, considering X's role in the supply chain, and applied a 60 per cent discount, resulting in a sentence of 22 months’ imprisonment. The appellant's counsel argued that the starting point was too high and the discount inadequate, particularly regarding the significant assistance provided to the police. The Crown contended the starting point was appropriate and the discount sufficient.

Dunningham J found that the District Court Judge’s starting point of three years and three months for the methamphetamine charges was within the available range. The Judge appropriately considered the indicia of a more significant role, balancing X’s addiction with the substantial evidence of his involvement in the supply operation. Regarding the discount, the Judge correctly assessed the discount for guilty plea and assistance to authorities, taking into account the actual practical value of the assistance despite the risk to X’s safety. The combined discount of 45 per cent was deemed appropriate, falling within the range of other cases. The Court concluded that the sentence was not manifestly excessive and dismissed the appeal. To protect X’s identity due to the risk associated with his assistance to authorities, name suppression was granted.

Orders