Sherriff v The Queen - [2021] NZHC 3414

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000159

[2021] NZHC 3414

BETWEEN
KELSI ANNE SHERRIFF

Appellant

AND

THE QUEEN

Respondent

Hearing: 13 December 2021

Appearances:

A M S Williams and K Bucher for Appellant J H Whitcombe for Respondent

Judgment:

13 December 2021

ORAL JUDGMENT OF EATON J

Introduction

[1] The appellant, Kelsi Sherriff, was sentenced on 24 November 2021 by Judge Gilbert in the Christchurch District Court to 11 months’ imprisonment.1 She was sentenced on one charge of possession of methamphetamine for supply2 and one representative charge of offering to supply methamphetamine.3 She appeals against that sentence on the basis that the Judge erred by not exercising his discretion to commute the end sentence to one of home detention. That is the sole ground of this appeal.

1      R v Sherriff [2021] NZDC 23118.
2      Misuse of Drugs Act 1975, s 6(1)(f) and (2) – maximum penalty of life imprisonment.
3      Misuse of Drugs Act, s 6(1)(c) and (2)(a) – maximum penalty of life imprisonment.

SHERRIFF v R [2021] NZHC 3414 [13 December 2021]

Facts

[2] The facts are as follows. At 9:06 pm on 1 September 2020, Ms Sherriff was parked in her vehicle at an associate’s address in Belfast, here in Christchurch. Ms Sherriff was sitting in the driver’s seat and her associate in the front passenger seat. As the police approached the vehicle, they observed Ms Sherriff weighing methamphetamine on a set of digital scales as her associate watched. An additional two bags of methamphetamine were observed on Ms Sherriff’s lap. The police invoked search powers under the Search and Surveillance Act 2012.

[3] Ms Sherriff became agitated and uncooperative. She did not comply with police instructions and attempted to swallow the bags of methamphetamine. Police prevented her from doing so. A subsequent search of the vehicle and of Ms Sherriff located 10.96 grams of methamphetamine along with scales, a tick list, $245 in cash, a cell phone (to which she declined to provide the PIN when requested) and a computer tablet. This gave rise to the charge of possession of methamphetamine for supply.

[4] The police then obtained a production order for Ms Sherriff’s cell phone and, through interrogating her text messaging, they found that Ms Sherriff had made multiple offers to supply various people with methamphetamine. In total, she had offered to supply some 18 grams of methamphetamine over the course of about 10 weeks between late June and early September 2020. That was approximately 20 offers.

District Court decision

[5] On 3 September, Ms Sherriff accepted a sentence indication given by Judge Gilbert. The Judge adopted a starting point of two years and nine months’ imprisonment. That starting point reflected Ms Sherriff’s well-documented addiction to methamphetamine, which the Judge accepted was the driver of her offending. He characterised her offending as falling into the “lesser role” in accordance with Zhang v R and as being towards the lower end of band two, albeit…

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 Sherriff v The Queen

Details

AGLC: Sherriff v The Queen [2021] NZHC 3414
Case: [2021] NZHC 3414
Decision Date: 13 December 2021

CaseChat Overview and Summary

The case of Sherriff v The Queen involves an appeal by Kelsi Anne Sherriff against her sentence imposed by the Christchurch District Court. Ms. Sherriff was sentenced to 11 months’ imprisonment for possession of methamphetamine for supply and offering to supply methamphetamine. The central issue in this appeal was whether the District Court Judge erred in not exercising his discretion to commute the end sentence to one of home detention. The High Court was tasked with determining if there was an error in the imposition of the sentence and if a different sentence should be imposed.

The Court found that the District Court Judge erred by placing undue emphasis on the principles of denunciation and deterrence while not adequately considering Ms. Sherriff’s rehabilitative prospects and personal circumstances. The Judge had considered the desirability of keeping offenders in the community but failed to weigh Ms. Sherriff’s rehabilitative potential and the availability of suitable community intervention properly. The Court acknowledged that while Ms. Sherriff had multiple previous convictions, her current and previous convictions were at the lower end of the scale and related to circumstances where she was dealing methamphetamine to sustain her own addiction. Given her commitment to rehabilitation and the support of her parents, the Court concluded that a sentence of home detention would adequately meet the purposes and principles of sentencing.

In conclusion, the appeal was allowed, and the sentence of 11 months’ imprisonment was quashed. The Court imposed a sentence of nine months’ home detention to be served at the Kaiapoi address, with conditions as noted in the pre-sentence report.

Orders