Andrews v The Queen - [2012] NZCA 76

IN THE COURT OF APPEAL OF NEW ZEALAND

CA713/2011
[2012] NZCA 76

BETWEEN MICHELLE KIM ANDREWS
Appellant

AND THE QUEEN
Respondent

Hearing: 14 February 2012

Court: Arnold, Potter and Simon France JJ

Counsel: S G Bailey for Appellant
P D Marshall for Respondent

Judgment: 8 March 2012 at 2 p.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Ms Andrews unsuccessfully defended a charge of supplying a class B drug, Ritalin. She appeals against her sentence of two years, three months’ imprisonment imposed by Judge Doherty.[1] The focus on appeal is whether the starting point was too high and whether there should have been greater credit for personal circumstances. Ms Andrews says that the sentence should have been below two years and that home detention should have been imposed.

Facts

[1] R v Andrews DC Christchurch CRI‑2010‑009‑1035, 17 October 2011.

Police were investigating a person believed to be a dealer in Ritalin. When that person was interviewed, she disclosed Ms Andrews as the source of the 90 tablets she had recently sold to a third party. She said she received $1,672 for the sales and had passed the proceeds on to Ms Andrews.
Ms Andrews is the mother of three children, aged 19, 11 and four years respectively. The eldest of the children had a long‑standing prescription for Ritalin. Each prescription provided 90 tablets.
At trial, Ms Andrews denied supplying the tablets. She said the dealer had stolen the pills from her handbag when she was visiting her. The jury verdict indicates a rejection of this evidence.

Sentencing

Judge Doherty took a starting point of two years, three months’ imprisonment. In doing so he noted the guidance provided by R v Wallace,[2] and the Court of Appeal decisions R v Piper[3] and R v Scott.[4] Noting that more pills were involved in this case than in either of the latter two cases, the Judge concluded that two years, six months’ imprisonment was a possible starting point, but preferred one slightly lower.
[2]R v Wallace [1999] 3 NZLR 159 (CA).
[3] R v Piper CA 345/05, 12 September 2006.
[4] R v Scott CA 34/04, 1 June 2004.
As for mitigation, the Judge referred to the general principle that less weight is accorded to personal circumstances in drug dealing offences. He also noted that Ritalin abuse is prevalent and it is a very portable pill.
Ms Andrews’ continuing denials meant that rehabilitation and remorse were not relevant factors, so the end result was that the starting point and the finishing point would be the same. The Judge also observed that had the sentence been within the range that made home detention an option, he would not have regarded that as an appropriate sentence.

Appeal submissions

Ms Bailey submitted that the starting point was too high. In both Piper and Scott the sentence was two years and, Ms Bailey argued, there was no reason to…

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 Andrews v The Queen

Details

AGLC: Andrews v The Queen [2012] NZCA 76
Case: [2012] NZCA 76
Decision Date: 8 March 2012

CaseChat Overview and Summary

Michelle Kim Andrews appealed against her sentence of two years and three months' imprisonment for supplying Ritalin, a class B drug. The Crown Court had found her guilty of the charge after she denied the offence, claiming that the dealer had stolen the pills from her handbag. The appeal against sentence was dismissed by the Court of Appeal of New Zealand. The appeal centred on two issues: whether the starting point for the sentence was too high and whether greater credit should have been given for personal circumstances. The court considered the starting point for sentencing and noted that the number of Ritalin tablets involved in this case was nearly twice the amount in a previous case, R v Scott, which had a starting point of two years. The court was satisfied that a starting point three months higher than in Scott was appropriate. Regarding personal circumstances, the court held that the Judge's approach was correct, and there was no basis for mitigation given Ms Andrews' denial of the offence and her decision to proceed to trial. The appeal was dismissed, and the original sentence of two years and three months' imprisonment was upheld.

Orders