Crighton v R

[2020] NZCA 33

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA783/2018
 [2020] NZCA 33

BETWEEN	LEANNE MAREE CRIGHTON Appellant
AND	THE QUEEN Respondent

Court:	Kós P, French, Miller, Brown and Clifford JJ
Counsel:	A J D Bamford and E J Riddell for Appellant M J Lillico and M L Wong for Respondent
Judgment: (On the papers)	2 March 2020 at 11 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.

BThe sentence of 22 months’ imprisonment is quashed.

C    The appellant is convicted and discharged. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

1. Ms Crighton’s sentence appeal was one of six dealt with by this Court in Zhang v R, the Full Court decision revising guideline sentencing for methamphetamine dealing offences.[1] 

   [1]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. Ms Crighton’s appeal was addressed at [193] to [203] of the judgment.

2. Ms Crighton pleaded guilty to and was convicted on 11 charges of offering to supply methamphetamine, three charges of supplying methamphetamine, one charge of possessing methamphetamine and other minor offending.  On 6 August 2018 she was sentenced in the District Court to 22 months’ imprisonment, with leave to apply for home detention.[2]  She was unable ultimately to qualify for that alternative sentence.  She was released at one half of her sentence served, on or about 24 April 2019, shortly after the hearing of her appeal. 

   [2]R v Crighton [2018] NZDC 16378. 

3. Her sentence expiry date is 29 March 2020, and she is subject to standard and special release conditions until 29 September 2020.  That sentence would make her ineligible for the clean slate scheme under the Criminal Records (Clean Slate) Act 2004.[3]

   [3]Criminal Records (Clean Slate) Act 2004, s 7(1)(b).

4. Applying the new sentencing guidelines defined in Zhang, this Court considered a starting point of two years’ imprisonment was appropriate for the offending concerned.  After taking into account personal considerations, the appropriate end sentence became 12 months’ imprisonment.[4]

   [4]Zhang, above n 1, at [198]–[201].

5. We also noted that a sentence of intensive supervision would likely have been a more appropriate end result given her personal circumstances and rehabilitative prospects.[5]  However, the imposition of that sentence on appeal would in effect re‑punish Ms Crighton, who had already served 11 months’ imprisonment and been subject to post-release conditions for a further five. 

   [5]At [202].

6. While her appeal was allowed, the precise disposition of the appeal required further submissions.  We have now received those submissions.  Defence counsel proposed a sentence of six months’ supervision, to enable Community Corrections to continue to provide support and oversight for Ms Crighton but without further punitive significance.  The Crown supported that submission as a “pragmatic response”. 

7. We take a slightly different view. 

8. Had the sentencing Judge imposed 12 months’ intensive supervision, as this Court considers would have been appropriate, that sentence would have ended on 6 August 2019.  Ms Crighton would be free of supervision and would also have remained eligible under the clean slate scheme. 

9. The sentence proposed by counsel would expire at or shortly before the time her existing release conditions expire.  However, that would still be some 12 months after supervision would have expired if she had been sentenced to 12 months’ intensive supervision in the first place. 

10. In these circumstances we consider the appropriate sentence for Ms Crighton is that she be convicted and discharged without more.[6]  This sentence best resembles the outcome had Ms Crighton been sentenced, with the benefit of the analysis in Zhang, as she should have been. 

Result

[6]Sentencing Act 2002, s 108. 

1. The appeal against sentence is allowed.

2. The sentence of 22 months’ imprisonment is quashed.

3. The appellant is convicted and discharged. 

Solicitors:
Bamford Law, Nelson for Appellant
Crown Law Office, Wellington for Respondent