R v McPherson - [2009] NZCA 487

IN THE COURT OF APPEAL OF NEW ZEALAND
CA403/2009
[2009] NZCA 487
THE QUEEN
v
YVONNE ANNE MCPHERSON
Hearing:12 October 2009

Court:Glazebrook, Potter and Wild JJ
Counsel:M D Downs for Applicant

R Brown for Respondent

Judgment:20 October 2009 at 9.00 am

JUDGMENT OF THE COURT

AThe Solicitor-General’s application for leave to appeal the sentence is granted.

B The sentence of home detention for 11 months is quashed.
C We substitute a sentence of three and a half years imprisonment.
DIn order to commence her sentence of imprisonment, Ms McPherson is to present herself at a time and place, as instructed by the Crown, before 5.00 pm on Wednesday 21 October 2009. Failing such instructions, she is to present herself at the Auckland High Court, Criminal Registry Office, at 10.00 am on Thursday 22 October 2009 to commence her sentence of imprisonment.

____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1]        After a jury had found the respondent guilty of being in possession of, or selling, a total of approximately 40 grams of methamphetamine, Judge Sharp sentenced her to home detention for 11 months. The sentence was imposed in the District Court at Auckland on 26 June 2009.
[2]        The Solicitor-General applies for leave to appeal that sentence. He submits the offending was too serious for any sentence other than imprisonment, as the Judge was obliged to emphasise denunciation and deterrence of Class A drug dealing.
The facts
[3]        Since 10 October 2006 the police, pursuant to an interception warrant, had been intercepting the respondent’s cellphone communications. The Crown summarised the key parts of those communications in a table for the sentencing Judge. The table was also provided to us. We accept it established a pattern of the respondent purchasing quantities of methamphetamine from her supplier, and on-selling smaller quantities of methamphetamine to a range of customers. She purchased up to an ounce (approximately 28 grams) from her supplier and on-sold in various quantities ranging from 14 grams down to half a gram. She offered to on-sell larger amounts – up to an ounce. The Crown put to the sentencing Judge that “a conservative estimate of the total amount sold over the period is about 27 grams”.
[4]        On 13 February 2007 the respondent was stopped at a checkpoint outside Mt Eden Prison. A search of her car uncovered 11.76 grams of methamphetamine, some 20 empty snaplock bags, digital weigh scales, a notebook containing a tick list and a little over $1,200 in cash. The respondent claimed the cash was hers, but gave evidence that the drugs and the drug-dealing paraphernalia must have been “planted” in the boot of her car. The respondent was subsequently charged with possession of methamphetamine for supply, and with selling methamphetamine. The jury’s verdicts of guilty on both counts indicated they rejected her defence that the drugs had been planted in her car, and also her explanation that the intercepted communications were not about controlled drugs.
Sentencing starting point
[5]        Before the Judge…

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 McPherson

Details

AGLC: R v McPherson [2009] NZCA 487
Case: [2009] NZCA 487
Decision Date: 20 October 2009

CaseChat Overview and Summary

The case of R v McPherson is an appeal by the Solicitor-General against the sentencing of Yvonne Anne McPherson, who was convicted of possession and selling of approximately 40 grams of methamphetamine. The sentence of home detention for 11 months, imposed by the District Court, was the subject of the appeal. The appeal was allowed, and the sentence was quashed, replaced with a sentence of three and a half years imprisonment.

The primary legal issue in this appeal was whether the sentence of home detention for 11 months was appropriate for McPherson's drug-dealing conviction, or if the sentence should be increased to imprisonment. The Court needed to determine the appropriate starting point for the sentence, and whether any mitigating or aggravating factors should be considered. The Court also needed to determine whether the sentence of home detention was justified based on the facts of the case.

The Court of Appeal found that the starting point for McPherson's sentence should have been four years imprisonment, as her drug dealing involved more than the 250 grams of illicit drugs prescribed in the guideline case of R v Fatu. The Court found that the mitigating factors, such as McPherson's efforts to rehabilitate herself and her personal circumstances, were not significant enough to warrant a reduction in her sentence. The Court also found that McPherson's previous convictions for drug offending were an aggravating factor that outweighed any potential mitigating factors.

The Court concluded that the sentence of home detention for 11 months was not appropriate, and quashed the sentence. The Court substituted a sentence of three and a half years imprisonment, taking into account the time McPherson had already served under the home detention sentence, and the fact that this was a Crown appeal.

In conclusion, the Court of Appeal allowed the appeal and substituted the sentence of home detention for 11 months with a sentence of three and a half years imprisonment. The Court found that the original sentence was not appropriate given the seriousness of McPherson's drug dealing conviction and her previous convictions for drug offending.

Orders