Lundy v The Queen - [2013] NZCA 106

IN THE COURT OF APPEAL OF NEW ZEALAND

CA786/2012
[2013] NZCA 106

BETWEEN DIANE MARIE LUNDY
Appellant

AND THE QUEEN
Respondent

Hearing: 13 March 2013

Court: French, MacKenzie and Mallon JJ

Counsel: V C Nisbet and P A Walker for the Appellant
M H Cooke for the Respondent

Judgment: 15 April 2013 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Ms Lundy appeals against her sentence on drugs charges. She pleaded guilty to those charges and was told by the District Court Judge that if she completed a rehabilitation programme the Court would consider a sentence of supervision. She did not undertake that programme and was then sentenced to 20 months’ imprisonment.[1] She contends that this was manifestly excessive in light of the earlier indication. She also contends that home detention ought to have been given.

Factual background

[1] R v Lundy DC Greymouth CRI-2011-018-664, 24 September 2012.

The charges related to a search of Ms Lundy’s house in July 2011. The police found five grams of methamphetamine (divided into seven bags of one gram and half gram amounts), 50 grams of cannabis (in two one-ounce bags), eight LSD tablets and a methamphetamine pipe. A further 0.25 grams of methamphetamine was hidden internally.
Ms Lundy was initially charged with possession of methamphetamine for supply, possession of cannabis for supply, possession of LSD and possession of a methamphetamine pipe. She spent three weeks in custody but was then released on bail.
Counsel informs us that at an early stage a sentence indication of three and a half years’ imprisonment was given on the charges as they then stood. By a letter dated 12 October 2011, which seems to have been for the purpose of this sentence indication, Ms Lundy told the Judge that she had previously been on the methadone programme for over 10 years. She said that she started using drugs again after the loss of a loved one. She said that her arrest and time in custody helped her to realise that she needed to make some changes. She said she was attending support sessions and believed she was a suitable candidate for home detention.
Following discussions between counsel, a disputed facts hearing took place before Judge Saunders on the charge of possession of methamphetamine for supply. The Judge found that there was no commercial element to that offending. A Judge-alone trial was conducted on the possession of cannabis for supply charge, with Judge Saunders finding that Ms Lundy had rebutted the presumption that the cannabis was for supply. The cannabis charge was replaced with simple possession of cannabis.
Guilty pleas were entered on the four charges (possession of methamphetamine for supply, possession of cannabis, possession of LSD and possession of a methamphetamine pipe) in March 2012. Judge Saunders adjourned the sentencing until 24 September 2012. This was because it was anticipated that Ms Lundy would be viewed as suitable to undertake a residential rehabilitation programme. In…

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 Lundy v The Queen

Details

AGLC: Lundy v The Queen [2013] NZCA 106
Case: [2013] NZCA 106
Decision Date: 15 April 2013

CaseChat Overview and Summary

Diane Marie Lundy appeals against her sentence on drug charges, having pleaded guilty. The District Court Judge indicated that if she completed a rehabilitation programme, a sentence of supervision might be imposed. However, she did not undertake the programme and was sentenced to 20 months’ imprisonment instead. She contends that the sentence was manifestly excessive and that home detention should have been imposed.

The Court of Appeal considered whether the starting point of two years was too high and whether home detention was an appropriate alternative. The Court found that the two-year starting point was appropriate and that the uplift for previous convictions was not warranted. It was also satisfied that there was no error in the Judge’s decision to decline home detention as there was insufficient evidence that she was motivated to address her drug use. The appeal was dismissed.

The Court made no orders regarding costs.

Orders