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Dunn v Police

Dunn v Police

Case [2020] NZHC 316 26 March 2020

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-40

CRI-2019-488-44 [2020] NZHC 316

BETWEEN
LEAH DUNN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 March 2020

Appearances:

D Sayes for the Appellant

C Taylor for the Respondent

Judgment:

26 March 2020

ORAL JUDGMENT OF GORDON J

Solicitors: Crown Solicitor, Whangarei Counsel: D Sayes, Auckland

DUNN v POLICE [2020] NZHC 316 [26 March 2020]

Introduction

[1] Leah Dunn pleaded guilty to 22 charges of possession of methamphetamine for supply,1 and one charge of breach of community work.2 She was sentenced to 22 months’ imprisonment on 18 November 2019 in the District Court.

[2] Ms Dunn appeals her sentence on the grounds that the Judge erred by combining the discounts for the causative link between addiction and offending and for the guilty pleas, thus giving an insufficient discount.

Background facts

[3] Stated shortly, Ms Dunn texted people agreeing to supply methamphetamine 22 times. Each circumstance gave rise to a corresponding charge of possession for supply.

[4] Previously Ms Dunn was sentenced to 140 hours of community work. She only completed one and a half hours, leaving an outstanding total of 138.5 hours. This occasioned the breach of community work charge.

District Court Decision

[5] The Judge, in considering the charges of supplying methamphetamine, calculated that Ms Dunn had agreed to supply, in total, 24.7 grams of methamphetamine to her various associates. Her Honour commented that many of Ms Dunn’s previous offences were for drug-related offending. The Judge acknowledged Ms Dunn’s honesty regarding her self-confessed methamphetamine addiction, which fueled the offending behind the current charges.

[6] Her Honour placed Ms Dunn’s offending in band 2 of Zhang v R, namely commercial quantities between five and 250 grams.3 The Judge went on to examine Zhang, highlighting that in setting a starting point, the Court of Appeal had found the

1      Misuse of Drugs Act 1975 s 6(1)(c). Maximum penalty: life imprisonment.
2      Sentencing Act 2002 s 71(1)(a). Maximum penalty: three months’ imprisonment or a fine not exceeding $1,000.
3      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

quantity of drugs relevant but not the sole determinant. Furthermore, the Judge discussed how addiction could be a personal mitigating feature and that it could be a factor for the Court to consider in Ms Dunn’s case.

[7] The Judge considered a starting point of 30 months appropriate, although no reasons were provided for this. No uplift was applied, but a 25 per cent global discount was given for both Ms Dunn’s guilty plea and her addiction. This rendered an end point of 22.5 months’ imprisonment, which the Judge rounded down to 22 months’ imprisonment.

[8]Ms Dunn was convicted and discharged in respect of community work.

Approach on Appeal

[9] To allow this appeal I must be satisfied, in accordance with s 250 of the Criminal Procedure Act 2011, that an error occurred in imposing the sentence, and that a different sentence…

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 Dunn v Police

Details

AGLC: Dunn v Police [2020] NZHC 316
Case: [2020] NZHC 316
Decision Date: 26 March 2020

CaseChat Overview and Summary

Leah Dunn appeals against her 22-month imprisonment sentence for possession of methamphetamine for supply and a breach of community work. The appeal was heard in the High Court of New Zealand, Whangarei Registry. Ms Dunn argues that the District Court Judge erred by combining the discounts for the causative link between her addiction and offending, and for her guilty pleas, thus giving an insufficient discount. The Crown contends that the sentence was just and that the Judge appropriately applied the discount for the guilty plea and addiction.

The court considered the legal issues of whether the Judge erred in combining the discounts for the addiction and guilty plea, and if so, what the appropriate measure of discount for addiction should be. The court referred to the precedent in Zhang v R, which states that addiction can stand as an independent discount. The court also noted that a discount for addiction should be based on a causative link between the addiction and the offending, and persuasive evidence of addiction to a level that can discharge a civil burden. The court found that there was a causative link between Ms Dunn’s addiction and offending, and that her level of addiction was severe. Therefore, the court considered a 20 per cent discount for addiction to be appropriate.

The court found that Ms Dunn’s guilty plea was entered at the earliest reasonable occasion and hence that a full 25 per cent discount is appropriate. The court held that the appeal should be allowed and that a sentence of 18 months’ imprisonment should be substituted for the sentence under appeal. The court reasoned that the original sentence was manifestly unjust when regard is had to the overall length of the sentence, and the fact that there was effectively no real discount for addiction.

In conclusion, the appeal is allowed and a sentence of 18 months’ imprisonment is substituted for the sentence under appeal. The court found that the Judge erred in combining the discounts for the addiction and guilty plea, and that a 20 per cent discount for addiction was appropriate. The court also found that a full 25 per cent discount for the guilty plea was appropriate.

Orders