Hartman v The Queen - [2010] NZCA 90

IN THE COURT OF APPEAL OF NEW ZEALAND
CA758/2009
[2010] NZCA 90
BETWEENMICHELLE KAYE HARTMAN

Appellant

ANDTHE QUEEN

Respondent

Hearing:4 March 2010

Court:Randerson, Priestley and MacKenzie JJ
Counsel:C J Tennet for Appellant

M E Ball for Respondent

Judgment:24 March 2010 at 10.30 a.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1]        The appellant pleaded guilty to 17 charges of drug dealing and credit card fraud[1] and was sentenced to an effective term of seven and a half years’ imprisonment by Wild J. She now appeals her sentence as manifestly excessive. The appellant was convicted of three counts of importing the class B controlled drug Gamma-Butyrolactone (GBL – also known as fantasy); one count of possession of GBL (simpliciter); one count of possession of GBL for supply; one count of supplying the class A controlled drug methamphetamine; two counts of supplying the class B controlled drug MDMA (also known as ecstasy); one count of possession of MDMA for supply; one count of conspiracy to cause loss by deception and six counts of dishonest use of a document for pecuniary gain.
[1]      R v Hartman HC Wellington CRI 2008-085-8906, 6 November 2009.
[2]        The grounds of appeal are:
(a)the eight year starting point adopted for the drugs charges was too high;
(b)the two year uplift applied in respect of the fraud charges was too high;
(c)the Judge failed to give credit for the appellant’s personal circumstances; and
(d)a modest discount ought to have been given on compassionate grounds.

[3]        A further ground of appeal on the basis that a 25 per cent allowance for a guilty plea was inadequate was abandoned during the hearing.
The facts
The drugs charges
[4]        The Judge treated the three counts of importing GBL between July and November 2008 as being the most serious. The total quantity imported was 15.5 litres. The appellant had been dealing consistently in GBL in Auckland and Wellington over the period July to November 2008. Some of the GBL was sold to other drug dealers and some was sold directly. The price varied but the total value of the sales was approximately $50,000.
[5]        Wild J accepted there was little evidence of the amounts or values of the methamphetamine sold, but referred to the persistent supply or offer to supply methamphetamine over a five month period. As to the MDMA, the appellant travelled to Wellington in September 2008 and obtained 400 pills. She took them back to Auckland and offered to supply them on ten occasions and actually supplied the drug on four occasions.
The fraud charges
[6]        The appellant stole some 38 different credit cards and, over a seven month period between May and November 2008, used them to pay for the importations of GBL and to fund her“drug-addicted lifestyle”. This included paying for air travel for herself and her associates between Auckland and Wellington to uplift the imports of GBL or to buy drugs in Wellington; accommodation,…

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 Hartman v The Queen

Details

AGLC: Hartman v The Queen [2010] NZCA 90
Case: [2010] NZCA 90
Decision Date: 24 March 2010

CaseChat Overview and Summary

Michelle Kaye Hartman was convicted of multiple drug dealing and credit card fraud charges and was sentenced to seven and a half years' imprisonment by Wild J. Hartman appeals the sentence on the basis that it is manifestly excessive. The appeal was heard by Randerson, Priestley, and MacKenzie JJ. Hartman pleaded guilty to importing Gamma-Butyrolactone (GBL), possessing GBL for supply, supplying methamphetamine and MDMA, possessing MDMA for supply, conspiracy to cause loss by deception and dishonest use of a document for pecuniary gain. The grounds of appeal were that the eight year starting point for the drug charges was too high, the two year uplift for the fraud charges was too high, the Judge failed to give credit for the appellant’s personal circumstances and a modest discount should have been given on compassionate grounds. The appeal was dismissed. The court found that the starting point for the drug offences was not too high, the uplift for the fraud charges was justified and there was no need for a further discount for compassion. The Judge had carefully balanced all relevant factors and took an approach to sentencing that was as compassionate as possible in the circumstances.

Orders