GRANT v R [2005] NZCA 20 (28 February 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA326/04

THE QUEEN



v



BRONSON DAVID GRANT

Court: Hammond, William Young and O'Regan JJ

Counsel: S J Gill for Appellant

B J Horsley for Crown

Judgment (on the papers): 28 February 2005

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS

(Given by Hammond J)

Introduction

[1]	The appellant, Mr Grant, pleaded guilty in the High Court to charges of supplying a Class A drug (methamphetamine), possessing a Class A drug (methamphetamine) for supply, and possession of cannabis for supply.
[2]	Mr Grant was sentenced by Ronald Young J in the High Court at Wellington on 2 July 2004 to a sentence of three years imprisonment. He now appeals against his sentence on the grounds that it was manifestly excessive, in that:
•	the starting point of four years taken by the judge was too high;
•	insufficient credit was given for an early guilty plea.
[3]	This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.
[4]	We note that the Notice of Appeal is some three weeks out of time. The stated reason for the delay is that there was a further hearing on 30 July 2004 in the High Court at Wellington, to take assets.

The facts

[5]	On 25 March 2004 Mr Grant was at an associate’s address in Lower Hutt. He supplied his associate with a snap-lock bag containing approximately 1 gram of pure methamphetamine, and a further point bag containing 0.1 grams of methamphetamine. He was paid $1,100 for these items. Mr Grant and his associate then smoked some cannabis.
[6]	Coincidentally, the police arrived at this address on an unrelated matter and smelt the cannabis. A search warrant was executed.
[7]	The gram bag and point bag sold to Mr Grant’s associate were located on the premises as well as a further gram bag found in the vicinity of a glass pipe. Mr Grant was found to be in possession of ten cannabis bullets. He had $10,000 in cash on him, in addition to the $1,100 which were the proceeds of the earlier sale.
[8]	Mr Grant was arrested and taken to Lower Hutt Police Station. As he left the car, another gram bag fell to the ground. A full search at the police station located a fourth gram bag in Mr Grant’s underwear.

The High Court sentencing

[9]	Mr Grant had previous offences but none of a serious character. He had never previously been in prison. The judge thought his offending to be financially motivated to recoup some of the costs involved in his own drug habit. Mr Grant had a violent upbringing where drugs and alcohol were commonplace; this troubled past played a part in his drug dealing and Mr Grant’s vulnerability to it. Mr Grant had been assessed as posing a moderate to high risk of reoffending.
[10]	The judge noted the following aggravating features in the case:
•	the possession of both methamphetamine and cannabis together, packed for sale;
•	the purity of the methamphetamine; and
•	the value of the drugs and the fact that there was clear commercial motivation to support a drug habit.
[11]	As mitigating features, the judge noted Mr Grant’s early guilty plea, remorse, and lack of previous convictions.
[12]	The judge considered the case fell squarely within the leading tariff case of R v Wallace [1999] 3 NZLR 159 (category 3) which would dictate a starting point of between three and five years imprisonment. The judge noted that that case was decided before the maximum sentence for methamphetamine was increased to life imprisonment. But he was of the view that a four-year starting point should apply nonetheless in this case. The judge reduced that term by one year in recognition of the mitigating features to which we have already referred.

Discussion

Starting point too high

[13]

It is untenable to suggest that a starting point of four years for this type of offending, in the circumstances of this case, was manifestly excessive. It is distinctly within the range suggested by this Court in R v Wallace, and it is in line with current sentencing practice. (See R v Nuku and McGregor HC WN France J CRI-2003-032-9097 21 July 2004 (five years), R v Bradley and Galvin HC ROT Williams J CRI-203-9063-8523 20 February 2004 (three years and nine months), and R v Franklin HC AK Williams J CRI-2004-404-5016 17 August 2004 (three and a half years)).

[14]

Deterrence is of the greatest importance in respect of drug offending, particularly where it has commercial overtones. Parliament has seen fit to reclassify methamphetamine to Class A, which reinforces the need for a sentence that has a strong deterrent aspect.

Credit for guilty plea

[15]	It is unnecessary to re-traverse the well-established authorities in this Court. A guilty plea has long been recognised by this Court as ordinarily mitigating culpability and justifying a reduced sentence. A reduction of 25 percent is well within standard New Zealand sentencing practice.

Conclusion

[16]	Leave to appeal out of time is granted.
[17]	The sentence was not wrong in principle, nor was it manifestly inadequate; it reflected current sentencing practice in New Zealand. The appeal is therefore dismissed.

Solicitor s:
Gill & McAsey, Lower Hutt for Appellant
Crown Law, Wellington