R v Guthrie - [2008] NZCA 439

IN THE COURT OF APPEAL OF NEW ZEALAND
CA375/2008
[2008] NZCA 439
THE QUEEN
v
GINA GUTHRIE
Hearing:16 October 2008

Court:Arnold, Randerson and Hugh Williams JJ
Counsel:M Pecotic for the Appellant

M D Downs for Crown

Judgment:24 October 2008 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.
BOn the charge of possession for supply a sentence of two years and six months is substituted for the sentence of three years and three months. The concurrent sentence of six months on the charge of possession of pipes is undisturbed.

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REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1]       The appellant Ms Guthrie was found guilty by a jury of drug related offending that occurred in June 2006. She was convicted of one count of possession of methamphetamine for supply and one count of possessing two pipes for the purpose of the commission of an offence against the Misuse of Drugs Act 1975. She was sentenced by Wylie J on 24 June 2008 to an effective term of imprisonment of three years and three months. She now appeals against her sentence.
[2]       The matter is complicated by Ms Guthrie’s subsequent sentencing by Stevens J on 31 July 2008 for other drug related offending which occurred in 2005: HC AK CRI 2007-090-39989. In respect of the 2005 offending, Ms Guthrie was convicted after trial on five charges: three relating to the possession of equipment and materials for the manufacture of methamphetamine; one of possessing methamphetamine; and one of possession of methamphetamine pipes. Ms Guthrie was acquitted on a charge of possession of methamphetamine for supply. At the time Ms Guthrie was sentenced for the 2005 offending, she was already serving the term of imprisonment imposed by Wylie J for the 2006 offending. Taking into account the totality of the offending, Stevens J imposed an effective term of nine months imprisonment cumulative upon the term of three years and three months imprisonment imposed by Wylie J. There is no appeal against the sentence of Stevens J.
[3]       On Ms Guthrie’s behalf, Ms Pecotic submitted that the sentence imposed was manifestly excessive. She relied particularly on the finding by the Judge that there were no personal mitigating circumstances which could properly be taken into account in reducing the sentence. Ms Pecotic submitted there were truly exceptional personal circumstances which should have been taken into account. In her submission, the appropriate sentence was one of home detention.
[4]       The Crown opposed the appeal submitting that the term of imprisonment was appropriate and that the appellant’s personal circumstances were not so unusual as to justify a discount on that account.
Background facts
[5]       Ms Guthrie was searched while visiting the Mt Eden Prison on 13 June 2006. She was found in possession of approximately 4.8 grams of methamphetamine, cash of around $7,500, a set of digital scales and other items of equipment associated with the use of methamphetamine. Her defence at trial was that the methamphetamine was for personal use and…

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 Guthrie

Details

AGLC: R v Guthrie [2008] NZCA 439
Case: [2008] NZCA 439
Decision Date: 24 October 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal of Gina Guthrie against her sentence for drug-related offenses. Guthrie was convicted of possession of methamphetamine for supply and possession of pipes for drug use. The Court of Appeal found that the original sentence of three years and three months for possession for supply was manifestly excessive. The court substituted a sentence of two years and six months imprisonment for the charge of possession for supply, while leaving the concurrent sentence of six months for possession of pipes undisturbed. The appeal court found that while Guthrie's personal circumstances were tragic, they did not justify a significant reduction in her sentence. However, the court did find that her personal circumstances warranted a modest discount from the starting point. The court concluded that a discount of six to nine months was appropriate, resulting in a sentence of two years and six months imprisonment for possession for supply.

Orders