Fitzgerald v R - [2012] NZCA 558

IN THE COURT OF APPEAL OF NEW ZEALAND

CA520/2012
[2012] NZCA 558

BETWEEN TE MANAWANUI FITZGERALD
Appellant

AND THE QUEEN
Respondent

Hearing: 19 November 2012

Court: White, Miller and Asher JJ

Counsel: P E Dacre for Appellant
P D Marshall for Respondent

Judgment: 4 December 2012 at 11.00 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

Ms Fitzgerald appeals against sentence,[1] saying that the starting point of four years adopted in the District Court for the lead offences, which involved cannabis dealing, was increased by too much – two years and six months – for related offending, which involved offering class A and B drugs and attempting to pervert the course of justice.

The offending

[1]R v Fitzgerald DC Napier CRI-2011-041-2158, 17 July 2012.

There were three principal offenders: Ms Fitzgerald, her partner Gary Tuhi, and her father Thomas Houkamau. Over a seven month period the Police intercepted many communications which established that the three were running a vigorous cannabis dealing operation. Mr Houkamau (who has yet to stand trial) is said to have grown or sourced most of the cannabis, while the other two were responsible for selling it. Over the seven months they sold and offered to sell more than $100,000 worth. On arrest 70 plants were found growing at one of the addresses they used. The cannabis charges involved sale, offering for sale, cultivation, possession for sale and importation of cannabis seed. Ms Fitzgerald and Mr Tuhi pleaded guilty to all of these charges, and to participation in an organised criminal group. There is no challenge to Judge Rea’s starting point of four years imprisonment.
Intercepted text messages revealed that Ms Fitzgerald offered the class A drug LSD for sale on numerous occasions – the summary of facts suggests at least five – and the class B drug ecstasy twice. She pleaded guilty to offering both drugs for supply. The LSD charge was representative. But her instructions to counsel were that she deceived the buyers by actually supplying party pills which she had purchased lawfully some time earlier. The Crown offered no evidence on charges of supplying ecstasy and LSD, accepting that it could not prove that she actually supplied those drugs. The starting point was increased by 12 months for the offering charges.
The Police found two firearms and 10 rounds of ammunition when searching the property of Ms Fitzgerald and Mr Tuhi. She was the only one home, and she alone was charged with unlawful possession of these items. She and Mr Tuhi arranged for a gang prospect to falsely claim ownership, which led to the charge against her being dropped. However, text messages came to light revealing both that Mr Tuhi owned the firearms and that Ms Fitzgerald had played an instrumental part in the attempt to pervert the course of justice. Mr Tuhi ultimately accepted full responsibility for…

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 Fitzgerald v R

Details

AGLC: Fitzgerald v R [2012] NZCA 558
Case: [2012] NZCA 558
Decision Date: 4 December 2012

CaseChat Overview and Summary

The case of Fitzgerald v R concerns an appeal against sentence by the appellant, Te Manawanui Fitzgerald, who was found guilty of various drug-related offences and an attempt to pervert the course of justice. The appeal was heard by the Court of Appeal of New Zealand, with White, Miller, and Asher JJ presiding. The primary issue before the court was whether the sentence imposed by the District Court was manifestly excessive. The appeal was dismissed, and the application for an extension of time to appeal was granted.

The appellant argued that the sentence, which included a starting point of four years for the lead offences and an additional two years and six months for related offences, was too severe. She claimed that the District Court had increased the starting point for the related offences by too much, particularly for the offering to supply charges, where she had intended to sell party pills instead of the controlled drugs, and for the attempt to pervert the course of justice charge, where she claimed that she played a secondary role to her co-offender. The Crown, on the other hand, argued that the sentence was appropriate and not manifestly excessive.

The court found that the District Court judge had allowed for totality when deciding on the uplifts for the related offences. The court also noted that the appellant had received a 25 per cent discount for her guilty pleas and a further six-month reduction for her personal circumstances, which demonstrated prospects of rehabilitation. The court held that the sentence was not manifestly excessive and dismissed the appeal.

In conclusion, the Court of Appeal of New Zealand dismissed the appeal against sentence by Te Manawanui Fitzgerald, finding that the District Court had appropriately considered the totality of the offending, as well as the mitigating factors, when imposing the sentence. The application for an extension of time to appeal was granted.

Orders