Garrity v The Queen - [2011] NZCA 552

IN THE COURT OF APPEAL OF NEW ZEALAND

CA475/2011
[2011] NZCA 552

BETWEEN KATHLEEN ROBYN GARRITY
Appellant

AND THE QUEEN
Respondent

Hearing: 31 October 2011

Court: Harrison, Miller and Asher JJ

Counsel: A Speed for Appellant
K A L Bicknell for Respondent

Judgment: 4 November 2011 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Kathleen Garrity appeals against a sentence of three years and ten months imprisonment imposed upon her by Wylie J in the High Court at Auckland on 15 July 2011 following her pleas of guilty to 21 counts of methamphetamine dealing.[1]
[1] R v Pulete HC Auckland CRI-2008-044-7390, 15 July 2011.
Ms Garrity’s counsel, Mr Speed, submits that the sentence was manifestly excessive; and that an appropriate sentence would have been two years imprisonment or less.

Background

The material facts are not in dispute.
As a result of information gathered from another inquiry, the Police began an investigation in early 2008 into suspected drug dealing inside Paremoremo Prison. Pursuant to formal warrants they intercepted telephone calls between prison inmates and others outside the prison including Ms Garrity.
Evidence emerged that Ms Garrity was acting as an agent for a methamphetamine supply operation orchestrated from within the prison by her partner, Mr Milham, and his associate, Mr Pulete. Ms Garrity was in regular contact with both men by cellphone. On their directions she collected quantities of methamphetamine from various persons and supplied it to others. She also arranged to bank the sale proceeds to Mr Pulete’s credit. Significantly, she assisted in smuggling methamphetamine and other contraband into Paremoremo. Mr Pulete arranged to pay her in cash and in methamphetamine. He also gave her a motor vehicle.
Ms Garrity’s offending occurred over a five week period between 23 July 2008 and 27 August 2008. She was charged with one count of possession of methamphetamine for supply and 20 counts of supplying methamphetamine. She was charged jointly with Messrs Pulete and Milham and others. She entered pleas of guilty to 18 counts at the start of the trial in February 2011. She pleaded guilty to the remaining three counts at the end of the Crown case two months later. Some of her co-accused changed their pleas at that stage also. Wylie J sentenced to Ms Garrity and three of her co-offenders together.
Before Wylie J on sentencing it was common ground that Ms Garrity did not supply more than one gram of methamphetamine on the occasion of each offence. Mr Speed’s submission on her behalf, which the Judge accepted, was that the total amount which Ms Garrity supplied across all offending was about 8.6 grams. The Judge acknowledged that the figure could not be fixed precisely.
Wylie J treated the count of supplying methamphetamine to Mr Pulete as the lead or index offence. In fixing the starting point of four years imprisonment the Judge took account of the totality of Ms Garrity’s offending on the other 20 charges.…

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 Garrity v The Queen

Details

AGLC: Garrity v The Queen [2011] NZCA 552
Case: [2011] NZCA 552
Decision Date: 4 November 2011

CaseChat Overview and Summary

Kathleen Robyn Garrity has appealed against a sentence of three years and ten months imprisonment imposed by Wylie J in the High Court at Auckland following her guilty pleas to 21 counts of methamphetamine dealing. The appeal was heard by Harrison, Miller, and Asher JJ. Ms Garrity's counsel, Mr Speed, argued that the sentence was manifestly excessive and that a more appropriate sentence would have been two years imprisonment or less. The central issue for the court was whether the sentence imposed by Wylie J was appropriate given the nature and extent of Ms Garrity's involvement in the drug supply operation.

The court first examined whether Wylie J had correctly categorised Ms Garrity's offending and determined the appropriate starting point for her sentence. Mr Speed argued that the judge should have treated Ms Garrity's offending as falling within the first band of the Fatu guidelines, which provides for sentences of two to four years for low-level supply of less than five grams of methamphetamine. However, the court found that Wylie J was correct in categorising the offending as falling within the second band, which provides for sentences of three to nine years for commercial quantities of between five and 250 grams of methamphetamine. The court held that when sentencing for multiple offences, the judge must impose a sentence that reflects the overall criminality and culpability of the offender. As Ms Garrity's overall offending warranted a starting point of at least three years imprisonment, the judge's approach was appropriate.

The court also considered Mr Speed's argument that Wylie J should not have increased the starting point by six months to account for the aggravating feature of Ms Garrity smuggling methamphetamine into Paremoremo prison. Mr Speed argued that because Ms Garrity was acting as an agent and had no control over the drugs once they left her hands, it was inappropriate to punish her for this factor. However, the court held that the decisive factor was that Ms Garrity's offending included the serious element of smuggling prohibited drugs into a prison with the knowledge that the likely recipient would use them to obtain a commercial benefit. Finally, the court considered whether Wylie J had failed to give a sufficient discount for Ms Garrity's guilty pleas, remorse, and attempts at rehabilitation. While the court acknowledged that other judges might have made a specific allowance for Ms Garrity's personal circumstances, it was satisfied that Wylie J had made a sufficient allowance for her plea and remorse and that the end sentence of three years and ten months imprisonment was within the appropriate range.

In conclusion, the Court of Appeal dismissed the appeal and upheld the sentence imposed by Wylie J. The court found that Wylie J was correct in categorising Ms Garrity's offending as falling within the second band of the Fatu guidelines, which provides for sentences of three to nine years for commercial quantities of between five and 250 grams of methamphetamine. The court also held that Wylie J was correct in increasing the starting point by six months to account for the aggravating feature of Ms Garrity smuggling methamphetamine into Paremoremo prison. Finally, the court found that Wylie J had made a sufficient allowance for Ms Garrity's guilty pleas, remorse, and attempts at rehabilitation and that the end sentence of three years and ten months imprisonment was within the appropriate range.

Orders