A The appeal is allowed.
BThe sentence of six months home detention imposed at the second stage of the appellant’s sentencing is quashed. The matter is remitted to the District Court for reconsideration in light of this judgment. The appellant will remain on bail in the meantime.

REASONS OF THE COURT
(Given by Arnold J)

Introduction

The appellant faced two counts of possession of cannabis for supply, three counts for selling cannabis, one count of offering to sell cannabis and one count of receiving. She was discharged on the receiving count under s 347 of the Crimes Act 1961 and entered guilty pleas in relation to the drug offending. Judge Barry sentenced her to home detention. In imposing sentence, the Judge neglected to take account of the fact that the appellant had been remanded in custody for approximately six months prior to trial. The issue on the present appeal concerns the means by which the time served on remand should be taken into account in this context.

Background

The background in relation to the appellant’s drug offending is as follows. On 10 March 2009 the police executed a search warrant at the appellant’s house. They found eight cannabis foils in her room, together with $240 cash, made up of $10 and $20 notes. That gave rise to one charge of possession of cannabis for sale and one charge of sale of cannabis.
On 30 July 2009 the police executed a further search warrant at the appellant’s address. In a chest of drawers by the appellant’s bed the police found a dried cannabis plant head. In an adjoining room they found 30 tinnies hidden in a compartment at the bottom of a dehumidifier. They found a further eight tinfoil packages of cannabis in the pocket of a jacket hanging in the wardrobe. In another room they found 25 tinfoil packages together with $300 in cash. As a consequence the appellant was charged with selling cannabis and possessing cannabis for sale.
Finally, on 14 September 2009, an undercover police officer went to the appellant’s house and knocked on the door. The officer asked the appellant if she could “score” and the appellant sold her two cannabis tinnies. On 30 October 2009, another undercover officer visited the address and asked if she could score. The appellant said that she was out of supplies but was expecting more later in the day. She told the officer that she should come back then. As a consequence of these visits the appellant was charged with selling cannabis and offering to sell cannabis.

Sentencing

To understand the issues in this appeal it is necessary to understand the sequence followed in relation to the sentencing. On…

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 Kidman v R

Details

AGLC: Kidman v R [2011] NZCA 62
Case: [2011] NZCA 62
Decision Date: 10 March 2011

CaseChat Overview and Summary

Christine Lee Kidman appealed against her conviction and sentence in the District Court. She faced multiple charges related to the possession, sale, and offering to sell cannabis, and she pleaded guilty to all charges except for receiving cannabis, which was dismissed under the Crimes Act 1961. The court imposed a sentence of home detention, but the appellant argued that the sentencing judge failed to consider the time she had already spent in custody prior to the trial. The appeal centred on the appropriate way to account for time served in custody when sentencing for drug-related offences.

The court examined whether the sentencing judge should be mandated to deduct time served in custody from a home detention sentence on a "one-for-one" basis, as is the case for imprisonment sentences. The court noted that Parliament had not legislated a specific approach for electronically monitored sentences, unlike for finite sentences of imprisonment. The court also considered that a rigid discount might not always be in the best interests of the convicted person. Instead, the court found that a more evaluative approach, as seen in previous cases, was more appropriate given the rehabilitative nature of home detention. The court held that the sentencing judge retained discretion in determining how to account for time served and that the appellant had not reasonably relied on a specific outcome based on the sentencing indication.

Given that the appellant had already served a significant portion of her sentence and was on bail pending the appeal, the court decided to quash the six-month home detention sentence imposed at the second stage of the sentencing. The matter was remitted to the District Court for reconsideration in light of the court's judgment. The appellant would remain on bail and be entitled to credit for the time already served on home detention, regardless of the new term imposed.

The court allowed the appeal, quashed the six-month home detention sentence imposed at the second stage of the appellant’s sentencing, and remitted the matter to the District Court for reconsideration. The appellant would remain on bail pending the outcome.

Orders