Hilbron v Police

[2012] NZHC 1091

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI2012-404-80 [2012] NZHC 1091

DEBBIE ANN HILBRON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 May 2012

Appearances: J Schlebusch on instructions from J Yi for Appellant

R Savage for Respondent

Judgment:      21 May 2012

ORAL JUDGMENT OF TOOGOOD J

Solicitors:

J Yi, Public Defence Service, Auckland:  [email protected]

R Savage, Meredith Connell, Auckland:  [email protected]

HILBRON V NEW ZEALAND POLICE HC AK CRI2012-404-80 [21 May 2012]

[1]     Debbie Ann Hilbron has appealed against a sentence of one month’s imprisonment imposed on her by Judge Dawson in the District Court at North Shore on 17 February 201, on a charge of possessing methamphetamine.1     On that date Judge Dawson had Ms Hilbron in front of him for sentence on a number of charges to which she had pleaded guilty, the offending having occurred over a range of dates in the preceding months.

[2]      The charges admitted were one charge of theft of petrol; two charges of driving whilst suspended; the third, or subsequent charges; two charges of giving false details as to identification to the Police; one charge of failing to surrender a driver’s licence; one charge of possession of methamphetamine; three charges of possession of utensils for the consumption of cannabis; three charges for possession of cannabis; two charges of driving carelessly and, finally, a charge of being in breach of District Court bail.

[3]      The total effective sentence which the Judge imposed was one of 11 months’ imprisonment, an end result which the Judge reached by sentencing the appellant on each charge as he considered appropriate for that charge, but making the sentences cumulative in some cases in order to achieve the end result of a total effective sentence.

[4]      I note that in respect of the charge which is the subject of the appeal the maximum   penalty,   bearing   in   mind   the   amount   of   0.1   of   a   gram   of methamphetamine,  was  six  months’ imprisonment  and/or  a  fine  not  exceeding

$1,000.

[5]      The  sole  ground  of  appeal  advanced  by  the  appellant  is  that  the  Judge sentenced her on an incorrect summary of facts.  This suggestion arises because in the course of his remarks on sentencing the Judge referred to facts which related to events on 12 August 2011 when the appellant was stopped in a vehicle at Glenfield, was spoken to by the Police and searched.  On that occasion she was found to have been in possession of 2.3 grams of methamphetamine.  The Judge referred to those

facts in the context of looking at the overall offending for which he was dealing with the appellant.

[6]      What has been submitted to be the “correct” summary of facts indicated that the appellant had been found in possession of 0.1 of a gram of methamphetamine on

12 October 2011.  It is submitted that the difference in the amounts referred to in the “correct” summary of facts and the “incorrect” summary of facts is significant.  In the latter case, the amount of 2.3 grams is just under half the 5 gram threshold for presumption of supply.  It is suggested in the written submissions filed in respect of the appeal (not prepared by Mr Schlebusch who has appeared at short notice) that a period of two weeks’ imprisonment, albeit cumulative upon the other sentences, would have been appropriate.

[7]      I am not persuaded, however, that Judge Dawson did sentence on an incorrect basis.

[8]      In paragraph [3] of the sentencing notes the Judge described the offending which occurred on 12 August 2011.  He then went on at paragraph [4] to refer to the offending which resulted in the guilty plea and conviction on a charge of possessing

0.1 of  a  gram,  and  the  Judge  correctly  stated  the  facts  in  relation  to  that.   At paragraph [9]  the  Judge  then  referred  to  the  appellant  having  three  previous convictions for possession of methamphetamine, although it appears that he was mistaken in that regard; in fact, there were two previous convictions for possession of methamphetamine and one of possessing an instrument for the use of methamphetamine.  Nevertheless, one of the two charges of possession referred to by the Judge was the offending which occurred on 12 August 2011 involving 2.3 grams of methamphetamine and was referred to in paragraph [3] of the sentencing notes.

[9]      It is plain that, in examining the conviction history of the appellant, the Judge had regard to the conviction history sheet attached to the pre-sentence report,  That document makes it clear that the offending he had described earlier2 as being having taken  place  on  12 August 2011  included  the  one  for  which  the  appellant  had previously been convicted.  Then, when he turned to imposing sentence the Judge

said,3 in relation to the charge of possession of methamphetamine, it was not a new offence for the appellant and he sentenced her to one month’s imprisonment.  I do not think in those circumstances there can be any doubt that, at the time he came to impose sentence, the Judge was referring back to the offending he had discussed at [4] of the sentencing notes which he said involved 0.1 of a gram.

[10]     Although I accept that the amount of methamphetamine involved in that charge was a relatively small amount, it was the third offence of its kind committed by the appellant within a short period; she had previously been sentenced to other charges of possession of methamphetamine only seven weeks beforehand.  I would have thought, approaching this afresh, that a term of imprisonment of two or three months, even allowing for a guilty plea by the appellant, would have been unexceptional in order to adequately meet the needs of accountability and deterrence. In those circumstances, a sentence of one month’s imprisonment for a third offence was not by any means manifestly excessive.

[11]     As to the cumulative nature of the penalty, when one looks at the scale of the offending overall, a sentence of some 15 to 18 months’ imprisonment may well have been justified as a starting point.  After making an allowance for a guilty plea of the maximum  amount  of  25 percent   (which  would  have  been   generous  in  the circumstances) a sentence effectively of 11 months’ imprisonment was also within the range  available  to  the  Judge,  having regard  to  the nature and  scope of the offending and the appellant’s history.

[12]     For those reasons, I do not consider it can be said that the sentence imposed was manifestly excessive or otherwise in error. The appeal is dismissed.

.............................................

Toogood J