McConnel v R - [2013] NZCA 303

IN THE COURT OF APPEAL OF NEW ZEALAND

CA329/2013
[2013] NZCA 303

BETWEEN	CATHERINE MCCONNEL Appellant
AND	THE QUEEN Respondent

Hearing:	11 July 2013
Court:	Stevens, Heath and Cooper JJ
Counsel:	B Meyer for Appellant D G Johnstone and W N Fotherby for Respondent
Judgment:	16 July 2013 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

Ms McConnel appeals against a sentence imposed by Judge Collins, in the District Court at Auckland, on 3 May 2013. She was sentenced to a term of one year and 11 months imprisonment on one charge of possessing the Class C controlled drug cannabis plant for supply, and one of selling cannabis plant to an undercover police officer.[1]
[1]R v McConnel DC Auckland CRI-2012-004-10250, 3 May 2013 [Sentencing notes].
The appeal is advanced on the ground that the sentencing Judge erred in imposing imprisonment, as opposed to home detention.

Background facts

In May 2012, a Police operation began designed to target the sale of both cannabis plant and tinnies at street level. At about 4.36 pm on 15 May 2012, a police officer (using an assumed name) went to an address in Grey Lynn. He spoke to Ms McConnel, who was behind a steel security gate.
After Ms McConnel introduced herself, the constable asked if he could purchase two cannabis tinnies from her. She agreed. The tinnies were handed over, at a price of $40.
Some days later, police officers executed a search warrant at Ms McConnel’s address. During the search nine tinnies were found in her bedroom.

Personal factors

At the time of sentence Ms McConnel was aged 32 years. She has six previous convictions for drug related offending, the last one of a similar nature being in April 2005 for possession of a cannabis plant for supply.
In an interview with a probation officer, Ms McConnel was recorded as having “expressed minimal regret for her current offending and presented as a person with limited insight into her drug use and illegal lifestyle”. The probation officer also recorded that Ms McConnel had said “I was bored” and needed “something to do”, as an explanation for her offending. The accuracy of those comments was put in issue at the sentencing hearing in the District Court, and before us.
Notwithstanding those comments, the probation officer recommended a sentence combining supervision, community detention and community work. The report indicated that Ms McConnel had a history of drug abuse and accepted that she would need to attend a Community Alcohol and Drug Services assessment and programmes. The probation officer said:
Community detention is recommended as a punitive sentence. Supervision (9 months) is recommended, this will enable Community Probation Service to oversee and support her through her rehabilitative process. Community work is recommended as a reparative (sic) sentence to the community.
Ms McConnel’s criminal history included a failure to answer District Court bail (2012) and two occasions when she had breached community work (2005…

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 McConnel v R

Details

AGLC: McConnel v R [2013] NZCA 303
Case: [2013] NZCA 303
Decision Date: 16 July 2013 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Ms McConnel, the appellant, appealed against the sentence imposed by Judge Collins in the District Court at Auckland. Ms McConnel was sentenced to one year and 11 months imprisonment for possessing a cannabis plant for supply and selling cannabis plant to an undercover police officer. The appeal argued that the sentencing Judge erred in imposing imprisonment instead of home detention. The background facts indicated that Ms McConnel sold cannabis to an undercover police officer and was found with additional cannabis during a subsequent search. The court examined Ms McConnel’s personal factors, including her history of drug-related convictions and minimal remorse. The probation officer recommended a combination of supervision, community detention, and community work. Judge Collins applied the guideline judgment of the Court of Appeal in R v Terewi, considering the commercial nature of the offending, and concluded that a starting point of two years imprisonment was appropriate. The Judge also considered the possibility of home detention but ultimately decided against it due to Ms McConnel’s previous convictions, lack of remorse, and the fact that the offending occurred from her home. The Court of Appeal found no error in the Judge's decision, affirming that the sentence was within the Judge's discretion. The appeal was dismissed, and the sentence of imprisonment was upheld.

Orders