R v Duncan - [2012] NZHC 1208

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2010-070-7804 [2012] NZHC 1208

THE QUEEN

v

ALISON JUSTINE DUNCAN

Hearing: 31 May 2012
(Heard at ROTORUA)

Counsel: GC Hollister-Jones for Crown
C Stevenson for Prisoner

Sentence: 31 May 2012

SENTENCING REMARKS OF LANG J

R V ALISON JUSTINE DUNCAN HC TAU CRI-2010-070-7804 [31 May 2012]

[1] Mrs Duncan, you appear for sentence today having pleaded guilty to one charge of supplying the Class A controlled drug methamphetamine. As I am sure you know, that charge carries a maximum sentence of life imprisonment.

Factual background

[2] The factual background to your offending can be described very shortly. You came to the notice of the police because of a much wider investigation that they were conducting into drug-related activities by your husband and others. During the course of this investigation they came across a conversation between you and your husband. The effect of the conversation was that your husband had given you an unknown quantity of methamphetamine for your own use. Rather than using the methamphetamine yourself, you had on-sold it to a third party.

[3] The offence is therefore one of dealing in methamphetamine, although on a very restricted basis.

Sentencing Act 2002

[4] I am sure you know that, in any case involving Class A drug dealing, the courts react with deterrent sentences, usually of a term of imprisonment. That is really the only way in which the courts can hope to make any mark on the scourge that is methamphetamine.

[5] For that reason issues of deterrence and denunciation are to the forefront, as is the need to hold the offender responsible for his or her actions.

[6] The real issue in the present case, as in many, is to determine what sentence is consistent with those imposed in broadly similar cases and to impose the least restrictive outcome appropriate in the circumstances.

[7] The starting point for the sentence to be imposed on you is to be determined having regard to the guideline Court of Appeal judgment in R v Fatu.[1]In that case the Court identified starting points for offending involving methamphetamine. For dealing in methamphetamine of up to five grams, the starting point is usually between two and four years imprisonment.

[1] R v Fatu [2006] 2 NZLR 72

[8] It is possible to go below a starting point of two years imprisonment where there is no commerciality involved but, of course, I must sentence you on the basis that there was a low level of commerciality. I accept, however, that you were at the very bottom end of Band A in Fatu and for that reason I select a starting point of two years imprisonment.

Aggravating factors

[9] There are no aggravating factors that would operate to increase that starting point.

Mitigating factors

[10] You appear for sentence at 44 years of age. You have been involved in a difficult relationship, and I accept that your involvement in using methamphetamine has arisen largely as a…

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 R v Duncan

Details

AGLC: R v Duncan [2012] NZHC 1208
Case: [2012] NZHC 1208
Decision Date: 31 May 2012

CaseChat Overview and Summary

The defendant, Alison Justine Duncan, faced sentencing for supplying methamphetamine, a Class A controlled drug, with the charge carrying a maximum penalty of life imprisonment. The court heard that Duncan was implicated in a broader police investigation into drug-related activities involving her husband and others. During this investigation, a conversation between Duncan and her husband was intercepted, revealing that he had provided her with an unknown quantity of methamphetamine for personal use, which she subsequently on-sold to a third party. The court noted that the offence involved a low level of commerciality, with the quantity of methamphetamine supplied being relatively small.

The central legal issue in the case was determining an appropriate sentence that aligned with previous cases involving similar drug-related offences, particularly focusing on deterrence and denunciation. The starting point for sentencing was established based on the guideline Court of Appeal judgment in R v Fatu, which suggests a starting point of two to four years imprisonment for dealing in methamphetamine of up to five grams. Given Duncan's low level of involvement and the absence of aggravating factors, the court selected a starting point of two years imprisonment. Mitigating factors, such as Duncan's early guilty plea and her separation from the relationship that led to her involvement with methamphetamine, were considered, resulting in a reduction of the sentence by 25%. This led to a proposed sentence of 18 months imprisonment, which could potentially be reduced to home detention given it was less than two years.

The court ultimately decided that a sentence of home detention was appropriate for Duncan, considering her minimal involvement in drug dealing, her separation from the relationship that led to her offending, and her efforts towards rehabilitation. The court imposed a sentence of nine months home detention at a specified address in Tauranga, with conditions including prohibition of alcohol and illicit drug use, compliance with family responsibilities, and regular reporting to a probation officer.

Orders