Irwin v The Queen - [2020] NZCA 181

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA161/2020
[2020] NZCA 181

BETWEEN	MICHAELA PATRICIA IRWIN Appellant
AND	THE QUEEN Respondent

Hearing:	13 May 2020
Court:	Collins, Duffy and Edwards JJ
Counsel:	S J Lance for the Appellant J M Irwin for the Respondent
Judgment:	26 May 2020 at 10.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe appeal against sentence is allowed.
CThe sentence of 2 years, 2 months’ imprisonment is quashed. A sentence of 1 year, 10 months’ imprisonment is substituted, with a special post‑release condition requiring the appellant to attend and participate in any departmental programme that her probation officer may direct. That condition shall expire 6 months after the sentence expiry date.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

On 22 November 2019, the appellant was found guilty of three charges of possession of methamphetamine for supply. She was sentenced by Judge Cathcart in the District Court at Gisborne to 2 years, 2 months’ imprisonment.[1]
[1]R v Campbell [2020] NZDC 3286.
That sentence was reached by adopting a starting point of 2 years, 8 months’ imprisonment, uplifted by 1 month for a prior conviction, and discounted by 7 months for time spent on restrictive bail.
The appellant appeals from that sentence on the basis that the starting point was too high, the discounts for personal mitigating features were too low, and the end‑sentence should have been one of home detention.
The appeal was filed three days out of time. The delay is short and has been adequately explained. We grant the necessary extension.

The offending

The appellant’s offending was uncovered as part of a police operation targeting methamphetamine dealing in Gisborne in 2017 and early 2018. The appellant obtained methamphetamine from the principal offender within the targeted network.
The three charges on which the appellant was found guilty arose out of offending on 23 May 2017, 25 May 2017 and 27 September 2017. The quantities of methamphetamine involved were one, 29 and 28 grams respectively, making a total of 58 grams.

The starting point

The appellant challenges the starting point of 2 years, 8 months’ imprisonment adopted by the Judge. Counsel for the appellant submits that the Judge did not give adequate weight to the appellant’s limited role in the offending, and the starting point should have been 2 years, 6 months’ imprisonment.
We do not see any error in the Judge’s approach. The starting point was set by reference to the guideline judgment in Zhang v R.[2] The Judge made specific mention of the need to ensure that sentencing achieved justice in individual cases, and the new emphasis on role in assessing culpability.[3]
[2]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[3]R v Campbell, above n 1, at [3]–[4] and [8].
The quantity of the methamphetamine placed the offending at the lower end of band two of Zhang which applies…

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 Irwin v The Queen

Details

AGLC: Irwin v The Queen [2020] NZCA 181
Case: [2020] NZCA 181
Decision Date: 26 May 2020 at 10.00 am

CaseChat Overview and Summary

Michaela Patricia Irwin appeals against her sentence for three charges of possession of methamphetamine for supply, imposed by Judge Cathcart in the District Court at Gisborne. Irwin was found guilty of possessing a total of 58 grams of methamphetamine as part of a police operation targeting methamphetamine dealing in Gisborne in 2017 and early 2018. Irwin was sentenced to 2 years, 2 months' imprisonment, with a starting point of 2 years, 8 months' imprisonment uplifted by 1 month for a prior conviction and discounted by 7 months for time spent on restrictive bail. Irwin's appeal against the sentence was filed three days out of time. Irwin argues that the starting point was too high, the discounts for personal mitigating features were too low, and the end-sentence should have been one of home detention. The Court of Appeal grants the extension of time and allows the appeal against the sentence. The starting point was set by reference to the guideline judgment in Zhang v R, and the Court of Appeal found that the starting point was appropriate. The Court of Appeal found that the 1-month uplift for the prior conviction was disproportionate to the 6 months' community detention sentence imposed, and an uplift should not have been applied at all. The Court of Appeal also found that a further discount of approximately 3 months' imprisonment was warranted for personal mitigating factors. The Court of Appeal considers that a short sentence of imprisonment with a special post-release condition requiring the appellant to participate in any departmental programme directed by her probation officer is the sentence which best meets the principles and purposes of sentencing and is the least restrictive sentence in the circumstances.
The application for an extension of time is granted. The appeal against sentence is allowed. The sentence of 2 years, 2 months’ imprisonment is quashed, and a sentence of 1 year, 10 months’ imprisonment is substituted with a special post-release condition requiring the appellant to attend and participate in any departmental programme that her probation officer may direct. That condition shall expire 6 months after the sentence expiry date.

Orders