Aitcheson v The Queen - [2019] NZHC 2858

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…

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 Aitcheson v The Queen

Details

AGLC: Aitcheson v The Queen [2019] NZHC 2858
Case: [2019] NZHC 2858
Decision Date: 4 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Jacinthe Miller Aitcheson, the appellant, appealed against her sentence imposed by the District Court. The respondent was the Crown, represented by the Solicitor-General. The appeal was heard on 4 November 2019, and the judgment was delivered on the same day. Ms. Aitcheson pleaded guilty to charges of supplying, offering to supply, and being in possession of methamphetamine for supply. The District Court sentenced Ms. Aitcheson to 22 months imprisonment, which she appealed on the basis that the starting point was too high, resulting in a manifestly excessive sentence.

The legal issue the court had to decide was whether the starting point the District Court selected was appropriate. Ms. Aitcheson argued that the starting point was too high, leading to a manifestly excessive sentence. The court had to consider the guidelines in Zhang v R, which was a guideline judgment delivered by the Court of Appeal. The court had to determine whether the starting point in Zhang was applicable to the present case and whether the sentence imposed by the District Court was appropriate.

The court considered the facts of the case and the guidelines in Zhang v R. The court found that Ms. Aitcheson's offending was less serious than that of the appellant in Zhang v R, but it occurred in the context of her serving a sentence of home detention. The court considered that to be a significant aggravating factor. The court found that a starting point of 15 months imprisonment was appropriate, and applying a discount of 20% for guilty pleas resulted in a sentence of 12 months imprisonment. The court allowed the appeal against sentence and imposed sentences of 12 months imprisonment, to be served concurrently, in place of the existing sentence.

In conclusion, the court allowed the appeal against sentence and imposed sentences of 12 months imprisonment, to be served concurrently, in place of the existing sentence. The release conditions were to remain the same. The court considered the guidelines in Zhang v R and found that the starting point selected by the District Court was too high, resulting in a manifestly excessive sentence. The court's decision provides guidance on the appropriate starting point for cases involving the supply of methamphetamine.

Orders