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

1. 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.

1. 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.

2. 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.

3. 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

1. 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.

2. 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.

3. 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

1. 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 take a different figure here.  Alternatively, she submitted that credit was available for personal circumstances, in particular the family and financial situation in which Ms Andrews finds herself.  She has two children still at home.  They are in the care of her step‑brother, who lives with them, but he is unable to continue to take time off work.  Further, there are mortgage payments to meet and the absence of any income is putting the family home at risk.

2. Ms Bailey focused on the starting point and credit for personal circumstances  in order to achieve a reduction in sentence to two years.  If successful in that, Ms Bailey submitted home detention would then be an appropriate final sentence.

3. For the Crown, Mr Marshall submitted the starting point was clearly within range based on the cases on which the Judge had relied.  He noted greater emphasis could have been given to the fact that the drugs Ms Andrews sold were intended for the use of her son.  There was a significant breach of trust component involved.  Likewise it was submitted the Judge’s treatment of the personal circumstances was orthodox and that Ms Andrews’ continued denial of her offending significantly limited the Court’s options.

Decision

1. We are satisfied the starting point of two years, three months’ imprisonment was appropriate.

2. Piper involved the possession for supply of 37 Ritalin tablets, 32 cannabis tinnies and nine grams of cannabis.  The total value of all of the drugs was around $1,750.  This Court on appeal considered that a first time offender could have expected a two year sentence for that offending following trial.  Scott involved the possession of 50 Ritalin tablets for supply.  This Court held that the sentencing Judge did not err when taking a two year starting point for that offending.

3. Based on these cases and given the present offending involved nearly twice the number of Ritalin tablets as were present in Scott, we are satisfied that a starting point three months higher than in Scott was available.  Further, it should not be thought those cases were setting any sort of rule: a three month deviation is unlikely to be problematic.

4. Turning next to the issue of personal circumstances, what Ms Andrews seeks is an exercise of leniency, not because of any compelling aspect in her profile, but because of the situation she has placed her family in.

5. This is one of those unfortunate situations where the decision to proceed to trial and the adherence to a claim of innocence even after verdict have curtailed the options available.  This is a stance which is, of course, open to Ms Andrews, but there is little left in which a Court might find mitigation.

6. The Judge did not err in approach and it was open to him not to see any basis for mitigation.  The reality is that the Judge had the advantage of presiding over the trial and forming an assessment of Ms Andrews.  We see no basis to differ on appeal.

7. It being our view that there is no error in the sentence of two years, three months’ imprisonment, the issue of home detention does not arise.  The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington