R v Police HC Auckland CRI 2009-416-30

[2009] NZHC 2587

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-416-000030

UNDER  The Summary Proceedings Act 1957, s116

IN THE MATTER OF     An appeal against sentence

BETWEEN  R

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         16 November 2009

Appearances: LJL Hemi for the Appellant

J E Rielly for the Respondent

Judgment:      16 November 2009

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

LJL Hemi, Rishworth Wall & Mathieson, P O Box 55, Gisborne 4040. Fax: [phone]

J E Rielly, Crown Solicitors, P O Box 609, Napier 4140. Fax: [phone]

R V NEW ZEALAND POLICE HC AK CRI 2009-416-000030 16 November 2009

[1]      This is an appeal against sentence.   The appellant’s primary submission is that the sentence imposed on her is manifestly excessive.

[2]      On 27 October 2009 the appellant pleaded guilty to two charges.  The first was possession of cannabis and the second was possession of a pipe for the purpose of smoking cannabis.

[3]      Judge  Rota  convicted  the  appellant  and  sentenced  her  to  240  hours community work.

[4]      Counsel’s major complaint is that in his sentencing methodology the Judge did not indicate a start point for the community work sentence.  Nor did he factor into such a notional start point a discount for a guilty plea.

[5]      Initially the appellant faced a more serious charge of possession of cannabis for supply.  As a result of negotiations and consideration by the police, however, the charge was reduced to one of simple possession.  The information was amended on

27 October and a plea was entered.  The offending took place in early April 2009. The information for the more serious charge was sworn on 26 May.

[6]      The summary of facts suggests that the quantity of cannabis was sufficiently high to trigger the presumption of supply.   The total weight was 42.6 gms which included a package of cannabis plant and 12 tinnies.  There is a suspicion threading its way through the summary of facts that the appellant or other occupants of the house were operating a tinnie house.

[7]      The appellant was aged 25.  Her only previous conviction related to being an unlicensed driver in 2007 in respect of which she was convicted and discharged.

[8]      Despite counsel’s comments on Judge Rota’s sentencing methodology (and he is right when he observes that no start point or mitigating credit was given), the central issue is whether the end sentence of 240 hours of community work is manifestly excessive.

[9]      Counsel have not been able to produce any authority to suggest the sentence is out of range.  As Mrs Rielly points out in her submissions there is no tariff.  The sentencing Judge was alert to both the quantities involved and the appellant’s guilty pleas.   There is no quarrel by Mr Hemi that a community work sentence is appropriate.

[10]     Given the circumstances, the summary of facts, and the history in the District Court, I do not consider that the end sentence is manifestly excessive.  Accordingly the appeal is dismissed.

…………………

Priestley J