Carroll v R - [2012] NZCA 328

IN THE COURT OF APPEAL OF NEW ZEALAND

CA866/2011
[2012] NZCA 328

BETWEEN ELIZABETH SHIRLEY CARROLL
Appellant

AND THE QUEEN
Respondent

Hearing: 2 July 2012

Court: Wild, Heath and Keane JJ

Counsel: N Levy for Appellant
L C Preston for Respondent

Judgment: 25 July 2012 at 2.30 pm

JUDGMENT OF THE COURT

The appeal, which is against both conviction and sentence, is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

Ms Carroll appeals both against her conviction and her sentence. In a trial in the Wellington District Court in August 2011 the jury found Ms Carroll guilty of one count of possession of the Class A controlled drug methamphetamine for supply, and one count of possession of the Class C controlled drug cannabis for sale. On 7 October last Judge Susan Thomas sentenced Ms Carroll to three and a half years’ imprisonment.[1]
[1] R v Carroll DC Wellington CRI-2009-085-8754, 7 October 2011.
Ms Carroll argued her conviction appeal herself. Her single point was that the evidence of the drugs found in her possession when her belongings were searched ought to have been ruled inadmissible because the search was unlawful.
Ms Levy argued the appeal against sentence. She advanced three grounds:
(a)the sentence was manifestly excessive, because the Judge’s sentencing starting point of four years’ imprisonment was too high;
(b)the six month discount allowed by the Judge for personal circumstances was insufficient; and/or
(c)disparity with a sentence imposed by the same Judge in an unrelated case about three weeks later.

Factual background

The appellant was travelling back in her car from Auckland to Wellington on the night of 30 June 2008. She had gone to Auckland to visit the grave of her partner who died in January 2008, and to visit his family. Her travelling companion drove off in her car leaving her stranded at a service station at Waiouru. He headed back the way they had come, and shortly afterwards crashed the car on the Desert Road.
The appellant’s handbag and luggage were recovered from the car by the Taihape police at the crash scene, looked at only superficially, and placed in safe custody. When she sought to uplift her belongings the following day, the appellant was told that she would need to speak to the police officer in charge. She took no further steps to recover her belongings which remained in police custody.
Some six months later, in January 2009, the Taihape Police received a request from a detective in the Wellington Police again to search the personal belongings that had been taken from the crashed car. The information that prompted this request apparently came from a Mr Rimine[2] and was seemingly in relation to the appellant’s travelling companion, a Mr Bates. On the strength of this information, the Taihape police searched the appellant’s belongings. They found approximately eight grams of methamphetamine in her handbag, packaged in point bags along with four cellphones containing text messages consistent with drug dealing. In the appellant’s other luggage the…

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 Carroll v R

Details

AGLC: Carroll v R [2012] NZCA 328
Case: [2012] NZCA 328
Decision Date: 25 July 2012

CaseChat Overview and Summary

Elizabeth Shirley Carroll appeals her conviction and sentence, following her conviction on one count of possession of the Class A controlled drug methamphetamine for supply and one count of possession of the Class C controlled drug cannabis for sale. The appellant argues that the evidence of the drugs found in her possession should have been ruled inadmissible because the search was unlawful. She also contends that her sentence was manifestly excessive, that the six month discount allowed by the Judge for personal circumstances was insufficient, and that there was a disparity between her sentence and that imposed by the same Judge on an unrelated offender. The Court of Appeal held that the appeal against conviction was dismissed because the Supreme Court’s decision in Hamed v R did not impugn the Court’s earlier ruling on the admissibility of the drugs found in the appellant’s possession. The appeal against sentence was also dismissed because the Judge’s total sentencing starting point of approximately four years’ imprisonment was not excessive, the discount for personal circumstances was appropriate, and there was no gross and unjustifiable disparity between the sentences. The appeal is dismissed.

Orders