Magon v Police - [2021] NZHC 447

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000039

[2021] NZHC 447

BETWEEN
HARRIET PATRICIA MAGON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 March 2021

Appearances:

T J Surrey for the Appellant

P A Norman for the Respondent

Judgment:

9 March 2021

JUDGMENT OF NATION J

[1] On 22 October 2020, the appellant, Ms Magon, was sentenced to 23 months’ imprisonment. She appeals that sentence, relying largely on her realisation while in prison that her drug use has been a core factor in her offending. She would like to be granted leave to apply for home detention on the basis that sentence would be served at an appropriate drug rehabilitation centre in Canterbury.

[2] Ms Magon was sentenced to 23 months’ imprisonment on charges of possession of cannabis for supply,1 sale of cannabis to a person over the age of 18 (representative),2 and supply of cannabis to a person under the age of 18 (representative).3

1      Misuse of Drugs Act 1975, s 6(1)(f).
2      Section 6(1)(e).
3      Section 6(1)(d).

MAGON v POLICE [2021] NZHC 447 [9 March 2021]

Facts

[3] These were set out in the summary of facts which was accepted for the sentencing in the District Court.

[4] In June 2020, Central Otago Police were alerted to a significant use of cannabis within a group of high school students. An investigation established Ms Magon was supplying cannabis to students aged between 13 and 17 years.

[5] Generally, to purchase the cannabis, one 14 year old girl would make contact with Ms Magon by text, either on her own behalf or on behalf of other students of a similar age. On other occasions, members within the peer group would make direct or indirect contact with Ms Magon to purchase cannabis. The cannabis was normally sold in $50 bags each containing approximately 2 g.

[6] Text messages and bank records revealed Ms Magon sold cannabis to persons under the age of 18 between February 2020 until the time of her arrest in June 2020. There is evidence of 19 bank transactions showing cannabis being sold to persons under the age of 18. This offending resulted in the representative charge of selling cannabis to persons under the age of 18 years.

[7] Examination of Ms Magon’s bank records revealed that between July 2019 and June 2020 she sold cannabis to persons over the age of 18 on at least 64 occasions. This resulted in the representative charge of supplying cannabis to persons over the age of 18 years.

[8] On 24 June 2020, Police observed Ms Magon alone in her vehicle driving from Canterbury to an address that was known to contain a group of young people, some of whom had been her previous customers. Police executed a search at the address and a search of the vehicle. One pound of cannabis broken into 16 one ounce bags was found.

[9] A search warrant was later executed on Ms Magon’s room…

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 Magon v Police

Details

AGLC: Magon v Police [2021] NZHC 447
Case: [2021] NZHC 447
Decision Date: 9 March 2021

CaseChat Overview and Summary

The case of Magon v Police was heard in the High Court of New Zealand, Dunedin Registry. The appellant, Ms Magon, appealed her sentence of 23 months' imprisonment for charges of possession of cannabis for supply, sale of cannabis to a person over 18, and supply of cannabis to a person under 18. Ms Magon sought leave to apply for home detention on the basis that the sentence would be served at an appropriate drug rehabilitation centre in Canterbury. The primary legal issues for the court to decide were whether the District Court judge erred in the sentence imposed, and if the judge erred in not commuting Ms Magon's sentence to home detention. The court found that there was no error in the way the judge arrived at the end sentence of 23 months' imprisonment, and there was no error in the judge's decision that community detention would not be appropriate. The judge had referred to Ms Magon's minimisation of the seriousness of her offending, the fact she had offended while subject to a community-based sentence and was in breach of that sentence. The court found that Ms Magon had not been a suitable candidate for home detention when she had told Corrections she did not agree to the imposition of such a sentence. Ms Magon pursued her appeal in the hope it could result in her being able to leave prison and be sentenced in substitution to home detention at an appropriate drug treatment centre. However, there was no evidence or information before the court to indicate she would then be suitable for such a sentence or that any residential programme would actually be available for her. The court was satisfied there was no error in the sentence originally imposed, and dismissed Ms Magon's appeal.

Orders