R v Hurring - [2009] NZCA 577

IN THE COURT OF APPEAL OF NEW ZEALAND
CA478/2009
[2009] NZCA 577
THE QUEEN
v
ANGIE LEE HURRING
Hearing:26 November 2009

Court:Arnold, Potter and Heath JJ
Counsel:R G Glover for Appellant

M J Inwood for Crown

Judgment:9 December 2009 at 10 am

JUDGMENT OF THE COURT

AThe appeal against sentence on the charge of supplying the Class A controlled drug methamphetamine is dismissed.
BThe appeal against the sentence imposed on the charge of conspiring to supply the Class A controlled drug methamphetamine is allowed. The sentence imposed of eight years imprisonment is set aside. A sentence of six years imprisonment is imposed. That shall be served concurrently with the sentence imposed on the supply charge.
CThe concurrent sentence of two months imprisonment on the charge of possessing the Class B controlled drug, morphine, and the order that the sum of $3347.00 be forfeited remain.

____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
[1]        Ms Hurring pleaded guilty, in the District Court at Christchurch, to one charge of supplying the Class A controlled drug, methamphetamine, one charge of conspiring to supply that drug and one charge of possessing the Class B controlled drug, morphine. The offending occurred between 20 October 2008 and 3 February 2009.
[2]        On 24 July 2009, Judge Philip Moran sentenced Ms Hurring to an effective term of eight years imprisonment. Sentences of eight years imprisonment were imposed on each methamphetamine charge and two months imprisonment on the morphine charge. All sentences were concurrent. A sum of $3347, seized by the Police, was ordered to be forfeited.
[3]        Ms Hurring appeals against the sentence imposed, on the grounds it is manifestly excessive.
The facts
[4]        Ms Hurring’s offending resulted from the activities of a serving prisoner, Mr Nathan. Mr Nathan was at the apex of a conspiracy to supply methamphetamine in Christchurch. The plan involved sourcing methamphetamine from Auckland and taking it to Christchurch for distribution.
[5]        The sentencing Judge described Ms Hurring as playing “a pivotal role” in the conspiracy. During the period 20 October 2008 to 31 January 2009, she travelled to Auckland on a number of occasions. With cash taken with her, she would purchase, in Auckland, up to ten ounces of methamphetamine at a cost of between $12,000 and $13,000 per ounce. She then acted as a courier to return the drugs to Christchurch, taking responsibility for handing them to a third person whose job was to hold them for a few days, before distribution to dealers.
[6]        Over the period in question, at least seven return air trips were made to Auckland and at least one other by road. There was also one aborted trip, in which Ms Hurring was entrusted to take $100,000 to buy methamphetamine from an Auckland supplier. The supplier became suspicious of Police surveillance. While that transaction did not proceed, it is relevant to the conspiracy charge.
[7]        The quantity of methamphetamine obtained for supply totalled 1960 grams, with a street value of nearly $2,000,000.
Sentencing in the…

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 Hurring

Details

AGLC: R v Hurring [2009] NZCA 577
Case: [2009] NZCA 577
Decision Date: 9 December 2009

CaseChat Overview and Summary

Angie Lee Hurring appealed against her sentence, which was imposed by the District Court at Christchurch, for supplying the Class A controlled drug methamphetamine, conspiring to supply the same drug, and possessing the Class B controlled drug, morphine. The appeal was against the sentence imposed for supplying methamphetamine and conspiring to supply the same drug, claiming it was manifestly excessive. The District Court had imposed an effective term of eight years imprisonment on each methamphetamine charge and two months imprisonment on the morphine charge, with all sentences running concurrently. A sum of $3347, seized by the Police, was also ordered to be forfeited.

The Court of Appeal considered whether the sentence imposed was excessive, particularly in relation to the conspiracy charge. The Court found that the starting point for the sentence of 12 years was justified given the offending involved the purchase and transportation of nearly two kilograms of methamphetamine over a relevant period. The Court also considered the mitigating factors of the offender’s addiction and other relevant personal circumstances, which neutralised any uplift for aggravating factors relating to the offender. However, the Court found that the Judge had erred in imposing a sentence of eight years imprisonment on the conspiracy charge, given its inchoate nature. The Court concluded that a concurrent period of six years imprisonment more aptly reflected Ms Hurring’s culpability for that offence.

The appeal against the sentence imposed on the charge of supplying methamphetamine was dismissed. The appeal against the sentence imposed on the charge of conspiring to supply methamphetamine was allowed. The sentence of eight years imprisonment on that charge was set aside and replaced with a sentence of six years imprisonment. The sentences on the supply and conspiracy charges were to be served concurrently. The concurrent sentence of imprisonment imposed on the Class B offence and the forfeiture order remained in place.

Orders