Hillman v The Queen - [2010] NZCA 337

IN THE COURT OF APPEAL OF NEW ZEALAND
CA385/2010
[2010] NZCA 337
BETWEENPAMELA EVELYN HILLMAN

Appellant

ANDTHE QUEEN

Respondent

Hearing:20 July 2010

Court:O'Regan P, Panckhurst and MacKenzie JJ
Counsel:M G Appleby for Appellant

K A L Bicknell for Respondent

Judgment:29 July 2010 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
Introduction
[1]        The appellant appeals against a sentence of two and a half years’ imprisonment imposed in relation to offences of cultivating cannabis and the possession of cannabis oil, and cannabis plant, for the purpose of supply. Such sentence was imposed in relation to all three charges, but on a concurrent basis.
[2]        The essential basis of the appeal is that the sentencing Judge, Judge Radford, erred in not giving substantial weight to the overarching influence and involvement of the appellant’s partner in relation to the offending. On this basis it is said that the sentence is clearly excessive and we were implored to intervene, reduce the term of the prison sentence and then substitute a sentence of home detention.
The factual background
[3]        The summary of facts disclosed that in late April 2009 prison officers intercepted telephone conversations between the appellant and her former partner to whom we will refer as DJ. Although the participants spoke in code, the conversations were interpreted to relate to previous occasions when cannabis oil had been successfully smuggled into the prison and to a further planned smuggling operation. The appellant was instructed to deliver capsules of cannabis oil (not referred to as such) to an older person named “Joe” before the weekend.
[4]        Inquiries established the existence of a man of that name, who was the father of an inmate in the same wing as DJ.
[5]        As a consequence of the intercepted conversations the police obtained and executed a search warrant at the appellant’s home on 4 May 2009. She was present. In her handbag was found a package wrapped in black insulation tape so as to form a cylindrical object capable of internal concealment. When opened the package was found to contain 28 cannabis oil capsules having a total weight of 13.9 grams and 23.9 grams of cannabis.
[6]        In the lounge of the house was an ice-cream container used for the storage of cannabis head. There was further cannabis found in two bowls in the kitchen and in a glass jar in the freezer. The total weight of cannabis plant located was 1.1 kilograms. There was also 840 grams of cannabis leaf, being inferior quality product. In a bedroom there were 67 cannabis plants drying from a wire hung from the ceiling. The police calculated that each plant would yield approximately three ounces of good quality cannabis. They considered that the total cannabis discovered had a potential street value of about $70,000.
[7]        In a bedroom at the address an indoor cannabis growing operation was located. There was 10 small plants, 12 medium sized plants and eight mature…

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 Hillman v The Queen

Details

AGLC: Hillman v The Queen [2010] NZCA 337
Case: [2010] NZCA 337
Decision Date: 29 July 2010

CaseChat Overview and Summary

The case of Hillman v The Queen involved Pamela Evelyn Hillman, the appellant, who appealed against her sentence for cultivating cannabis and possessing cannabis oil and a cannabis plant for the purpose of supply. The sentences were imposed concurrently. The appellant argued that the sentencing judge had erred by not giving substantial weight to the involvement of her partner, DJ, in the offending. She contended that her sentence was excessive and sought a reduction to home detention. The factual background revealed that the appellant had been involved in smuggling cannabis oil into prison and had a significant cannabis growing operation at her home. The police found a substantial amount of cannabis and cannabis oil at her residence. The appellant initially denied the charges but later pleaded guilty. The sentencing judge established a starting point of three years for the cultivation charge and added a year for the cannabis oil charge. The judge then deducted 18 months for mitigating factors such as the guilty pleas, duress, and personal issues. The appeal focused on the argument that the judge did not sufficiently consider DJ's influence on the appellant's actions. However, the Court of Appeal found that the appellant had not followed the proper procedures to dispute the facts in the sentencing process. Furthermore, the Court determined that the sentence was appropriate for the scale of the offending, and dismissed the appeal.

Orders