Aitcheson v The Queen
[2019] NZHC 2858
•4 November 2019
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2019-488-000029
[2019] NZHC 2858
BETWEEN JACINTHE MILLER AITCHESON
Appellant
AND
THE QUEEN
Respondent
Hearing: 4 November 2019 Appearances:
A Fairley for Appellant
J M M Johnson-Aufa’i for Respondent
Judgment:
4 November 2019
(ORAL) JUDGMENT OF LANG J
[on appeal against sentence]
AITCHESON v R [2019] NZHC 2858 [4 November 2019]
[1] Ms Aitcheson pleaded guilty in the District Court to charges of supplying methamphetamine,1 offering to supply methamphetamine2 and being in possession of methamphetamine for supply.3
[2] On 11 October 2019, Judge Orchard sentenced Ms Aitcheson to 22 months imprisonment.4 Ms Aitcheson appeals against sentence on the basis that the starting point the Judge selected was too high, and this has led to the imposition of a sentence that was manifestly excessive.
The facts
[3] The facts on which Ms Aitcheson was sentenced are contained in a summary of facts that was accepted as correct for sentencing purposes. This revealed that on 16 October 2018 Ms Aitcheson sent text messages to an associate asking if the associate wanted to acquire methamphetamine. It is clear that the offer was in return for the associate paying money for the methamphetamine. A short while later on the same day, Ms Aitcheson sent the same associate a text message saying she had half a gram of methamphetamine that she had divided into five point bags for sale. A text message discussion then ensued regarding the methamphetamine.
[4] Approximately two hours later on the same date a further text message exchange occurred between Ms Aitcheson and the same associate. Ms Aitcheson accepts that this amounted to an offer to supply the associate with methamphetamine. The total amount of methamphetamine involved in the factual scenarios that led to the three charges was approximately .7 of a gram.
The sentence
[5] The Judge accepted that the offending fell within band 1 identified in R v Fatu.5 This calls for a starting point of two to four years imprisonment. The Judge selected a starting point of two years to reflect the fact that this was low-level supply and
1 Misuse of Drugs Act 1975, ss 6(1)(c) and (2).
2 Misuse of Drugs Act 1975, ss 6(1)(c) and (2).
3 Misuse of Drugs Act 1975, ss 6(1)(f) and (2).
4 R v Aitcheson [2019] NZDC 20286.
5 R v Fatu [2006] 2 NZLR 72 (CA).
possession of methamphetamine. She applied an uplift of three months to reflect the fact that the offending occurred whilst Ms Aitcheson was serving a sentence of home detention. She then applied a discount of just under 20 per cent to reach the final sentence of 22 months imprisonment.
Zhang v R
[6] Ms Aitcheson lodged her notice of appeal before the Court of Appeal delivered its guideline judgment in Zhang v R.6 She is therefore entitled to rely on the sentencing guidelines contained in that judgment even though she was sentenced before the judgment was delivered.7
[7] The most helpful aspect of Zhang for present purposes relates to the starting point the Court selected in relation to the appellant Crighton. Ms Crighton had been involved in the sale or supply of approximately 3.75 grams of methamphetamine. She was a user of methamphetamine and supplied associates and her partner to support her own habit. The Court of Appeal said that an appropriate starting point for this conduct was two years imprisonment.8
[8] Ms Crighton’s offending was obviously more serious than that of Ms Aitcheson because she supplied approximately five times more methamphetamine than Ms Aitcheson. On the other hand, Ms Crighton did not offend whilst she was serving a sentence of home detention and I consider that to be a significant aggravating factor in the present case. It certainly removes Ms Aitcheson’s offending from being eligible for a community-based sentence as is now available in band 1 cases.9
[9] Taking the fact that there were three transactions involved and that this was commercial dealing at the very lowest level, I consider a starting point of 15 months imprisonment is appropriate to reflect the fact that it also occurred in the context of Ms Aitcheson serving a sentence of home detention. Applying a discount of 20 per cent to reflect guilty pleas produces an end sentence of 12 months imprisonment.
6 Zhang v R [2019] NZCA 507.
7 Zhang v R, above n 6, at [10](p).
8 Zhang v R, above n 6, at [198].
9 Zhang v R, above n 6, at [123] and [125].
Result
[10] The appeal against sentence is accordingly allowed. On each of the charges the existing sentence of 22 months imprisonment is quashed. In place of those sentences I impose sentences of 12 months imprisonment, all of which are to be served concurrently. The release conditions are to remain the same.
Lang J
Solicitors:
Crown Solicitor, Whangarei