Police v Lang - [2015] NZHC 3107

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-000072 [2015] NZHC 3107

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

JAN FULTON LANG Respondent

Hearing: 8 December 2015

Counsel:

C M Gisler for Appellant
C J Tennet for Respondent

Judgment:

8 December 2015

JUDGMENT OF COLLINS J

Introduction

[1] This judgment explains why I am allowing the Solicitor-General’s appeal against a sentence of a $1500 fine imposed on Ms Lang by Judge Davidson in the Wellington District Court on 8 October 2015. The sentence was imposed in relation to one charge of possession of cannabis for sale or supply and reflected a sentence indication, which Judge Davidson gave Ms Lang on 8 October 2015.1 I am allowing the appeal because I am satisfied Judge Davidson made a significant error in the sentence he imposed and that Ms Lang should now receive a different sentence.

[2] I am quashing the sentence imposed and remitting this case back to the District Court. Ms Lang may wish to seek leave in the District Court to vacate her guilty plea. If Ms Lang’s plea is not changed, pre-sentence reports, including a home
detention report will be required before Ms Lang is re-sentenced.

1 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c). Maximum penalty of eight years’ imprisonment.

NEW ZEALAND POLICE v LANG [2015] NZHC 3107 [8 December 2015]

[3] In giving my reasons I will explain:

(1) the background to Ms Lang’s offending;

(2) Judge Davidson’s decision;

(3) appeal principles for Solicitor-General’s appeals;2

(4) the error in the sentence imposed;

(5)why I am satisfied a different sentence should now be imposed in this case; and

(6) my conclusions.

Background

[4] On 1 June 2014 at about 5.45 am, the police conducted an enquiry on an unrelated matter at Ms Lang’s address in Wellington. When Ms Lang opened her door, the police officer noticed a strong smell of cannabis coming from inside the address. The police undertook a search of the property.

[5] Located in a 10 litre paint container in the living room were 150 zip lock bags of cannabis material weighing approximately 3 grams each. Located in another 10 litre paint container under the first container were six zip lock bags of cannabis head material weighing approximately 28 grams each. In other containers in the living room were approximately another 39 grams of cannabis. In total, 657 grams of cannabis was found in Ms Lang’s possession.

[6] Inside a set of drawers in the living room was a set of digital scales and under the coffee table were boxes of unused zip lock bags. Ms Lang stated that she was the
sole occupant of the address and the cannabis was for her personal use.

2 I will refer collectively to prosecutors’ appeals brought by the Crown with the consent of the
Solicitor-General in this judgment as “Solicitor-General’s appeals”.

Judge Davidson’s decision

[7] Judge Davidson gave Ms Lang a sentence indication on 8 October 2015. He adopted a starting point of 18 months’ imprisonment.…

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 Police v Lang

Details

AGLC: Police v Lang [2015] NZHC 3107
Case: [2015] NZHC 3107
Decision Date: 8 December 2015

CaseChat Overview and Summary

The case of Police v Lang involves a dispute over the sentence imposed on Ms. Lang by Judge Davidson in the Wellington District Court. Ms. Lang was found in possession of 657 grams of cannabis and was convicted of possession for sale or supply under the Misuse of Drugs Act 1975. The dispute pertains to the sentence of $1500 fine imposed on Ms. Lang, which the Solicitor-General appealed on the grounds that it was manifestly inadequate and incorrect in principle.

The primary legal issue before the court was whether the sentence imposed was significantly erroneous and whether a different sentence should be imposed. The court noted that while the quantity of cannabis found justified a starting point of between two to four years' imprisonment, the sentence imposed was manifestly inadequate. The court was of the view that the sentence imposed failed to adequately consider the purposes and principles of the Sentencing Act 2002, such as holding Ms. Lang accountable for the harm done to the community, promoting a sense of responsibility, and deterring others from committing similar offences.

The court allowed the appeal and quashed the sentence imposed. It concluded that a sentence of approximately six months' home detention would have been the most appropriate sentence in the circumstances. The case is remitted back to the District Court for re-sentencing. Ms. Lang may consider applying to vacate her guilty plea. If the guilty plea is not vacated, pre-sentence reports, including a home detention report, will be required before Ms. Lang is re-sentenced.

Orders