Fearnley v The Queen - [2016] NZHC 2395

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2016-442-0015 [2016] NZHC 2395

BETWEEN
NICOLE ASHLEY FEARNLEY

Appellant

AND

THE QUEEN Respondent

Hearing: 4 October 2016

Counsel:

E J Ridell for appellant
J R Crawford for respondent

Judgment:

7 October 2016

RESERVED JUDGMENT OF DOBSON J

[1] On 15 June 2016, following a sentence indication, the appellant (Ms Fearnley) pleaded guilty to one representative charge of offering to supply cannabis and one charge of being in possession of cannabis resin. The sentence indication specified that an end sentence of 20 months’ imprisonment would be imposed.

[2] A pre-sentence report was sought, which indicated that Ms Fearnley would be a good candidate for a sentence of home detention and that there was a suitable address. On that basis, she was sentenced by Judge Ruth to 10 months’ home detention on the offering to supply charge, and one month’s home detention on the possession of cannabis resin charge, both sentences to be served concurrently.1

[3] Ms Fearnley has since received legal advice from a new lawyer. She has brought this appeal against sentence on the basis that she was not advised of the
possibility of disputing the Police summary of facts prior to sentencing. She now

1 R v Fearnley [2016] NZDC 11016.

wishes to cast her offending as less serious than was suggested by the summary of facts, with the result that the end sentence is arguably manifestly excessive.

The sentence indication

[4] Judge Ruth started by recounting the facts of the offending. Ms Fearnley was using a mobile phone to conduct a drug-dealing business, contacting buyers and arranging for the sales of cannabis over a two month period. A code was often used between Ms Fearnley and buyers, but a price and an amount was often decided by text. The Police interpreted her mobile phone records as indicating that Ms Fearnley had offered to supply cannabis on 32 occasions during the two month period of the representative charge.

[5] On 15 January 2016, a search warrant was executed at Ms Fearnley’s house

and cannabis resin was found.

[6] The Judge noted that Ms Fearnley had a few previous convictions for driving matters and accessing a computer for a dishonest purpose. However, there was no relevant criminal history. Ms Fearnley is 21 years old.

[7] The Judge then recorded that both the Crown and defence submissions placed the offending in band two of R v Terewi,2 which includes small-scale commercial dealing. The Crown submitted that the offending falls in the middle of that band, attracting a starting point of two to two and a half years’ imprisonment. Counsel for Ms Fearnley submitted that the starting point should be closer to two years.

[8] In setting the starting point at two years and three months, the Judge took into account as aggravating features the number of offers that were made, the fact that Ms Fearnley had dealt with more than one grade of drug (cannabis and resin), that there was some…

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 Fearnley v The Queen

Details

AGLC: Fearnley v The Queen [2016] NZHC 2395
Case: [2016] NZHC 2395
Decision Date: 7 October 2016

CaseChat Overview and Summary

Nicole Ashley Fearnley, the appellant, appealed against her sentence imposed by Judge Ruth following her guilty plea to charges of offering to supply cannabis and possession of cannabis resin. The appellant argued that she was not advised of the possibility of disputing the Police summary of facts prior to sentencing and sought a less severe characterisation of her offending, arguing that the end sentence was manifestly excessive. The appeal was filed out of time due to delay in instructing a new lawyer, but leave to appeal was granted as the delay was not significant. The appellant claimed that she was not made aware of the opportunity to dispute the Police summary of facts for the purpose of sentencing and denied dealing in ounces of cannabis, whereas the Police’s interpretation of three text exchanges set out in the summary of facts was that they related to transactions for 28 grams (an ounce) of cannabis. The Crown argued that these disputed facts would make no difference to Ms Fearnley’s sentence.

The court considered the appeal under section 250 of the Criminal Procedure Act 2011, which provides that the appeal court must allow the appeal if it is satisfied that there was an error in the sentence imposed on the convictions, and that a different sentence should be imposed. The court found that even without dealing in ounces of cannabis, the Judge placed Ms Fearnley’s offending within a range that was clearly available to him, by comparison with other sentencings referred to. The court held that the starting point of two years and three months is consistent with that level of offending and the sentence imposed was not manifestly excessive and, whilst stern, there is no scope for finding that an error occurred. The appeal was dismissed.

The court did not find any error in the sentence imposed on the convictions, and that a different sentence should be imposed. The sentence imposed was not manifestly excessive, and the appeal was dismissed.

Orders