Smeath v The Queen - [2012] NZCA 466

IN THE COURT OF APPEAL OF NEW ZEALAND

CA168/2012
[2012] NZCA 466

BETWEEN SONIA SMEATH
Appellant

AND THE QUEEN
Respondent

Hearing: 8 October 2012

Court: Stevens, Chisholm and Venning JJ

Counsel: N G Cooke for Appellant
F E Cleary for Respondent

Judgment: 11 October 2012 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS

(Given by Chisholm J)

Introduction

On the third day of a trial in the District Court at Auckland involving the appellant and three co-accused, the appellant pleaded guilty to eight charges of importing pseudoephedrine, four of supplying methamphetamine and one of possession of methamphetamine for supply. She was discharged on a further 15 charges.
Judge Gibson sentenced the appellant to a total of three years imprisonment.[1] She now appeals against that sentence on the ground that it is manifestly excessive, with the primary ground of appeal being that the Judge failed to give proper weight to the appellant’s personal circumstances.

The offending

[1] R v Monk DC Auckland CRI-2009-004-24447, 20 February 2012.

The appellant was part of a drug ring that participated in drug offending between December 2008 and October 2009. At the time Damian Monk, the leader of the ring, was the appellant’s de facto partner.
At least 1.4 kilograms of pseudoephedrine was imported into New Zealand and a further 1.5 kilograms was intercepted by Customs. Although substantial quantities of methamphetamine were manufactured in New Zealand, primarily by Mr Monk, the appellant was not involved in that facet of the offending. In relation to the importation of the pseudoephedrine the appellant was directly involved in the remittance of approximately $27,000 to overseas contacts. This represented about 10 per cent of the total remittances. She was also involved in the supply of one to two grams of methamphetamine within New Zealand.

The offender

At the time of sentencing the appellant was 37 years of age with two children, aged 10 and 17 years, both of whom were in her custody. Although the appellant does not have any previous drug related offences she does have some previous convictions, the most serious of which was assault with intent to injure (1996). It is apparent from the probation officer’s report and from a psychiatric report that the appellant had a difficult upbringing and that she was addicted to drugs. The risk of re-offending was considered by the probation officer to be medium. A sentence of imprisonment was recommended.

Sentencing

On the Judge’s analysis the appellant:
[54] ... could be described as a crucial player in the ring but not an instigator or a mastermind or a prime mover or a controller, but somebody necessary to keep the ring operating.

Later the Judge expressed the view that the appellant had a “relatively significant role in the ring”.[2] This categorisation of the appellant’s role has not been challenged.

[2] Also at [54].

Having concluded that the supply of methamphetamine charges fell within band one of R v Fatu[3] (starting point of two to four…

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 Smeath v The Queen

Details

AGLC: Smeath v The Queen [2012] NZCA 466
Case: [2012] NZCA 466
Decision Date: 11 October 2012

CaseChat Overview and Summary

The appeal against sentence was brought by Sonia Smeath, the appellant, against the decision of the District Court which had sentenced her to three years imprisonment for various drug related offences. The appeal was heard by the Court of Appeal of New Zealand, comprising Stevens, Chisholm, and Venning JJ, on 8 October 2012, with judgment given on 11 October 2012. The appellant was represented by N G Cooke, while the respondent was represented by F E Cleary. The central issue before the court was whether the District Court had properly considered the appellant's personal circumstances in determining her sentence, particularly in light of her addiction and the influence of her de facto partner, Damian Monk, over her criminal activities. The appellant argued that the sentence was manifestly excessive and should be reduced, contending that the court had failed to adequately weigh her personal circumstances and that a lesser sentence, such as home detention, would be more appropriate.

The Court of Appeal examined the nature and extent of the appellant's involvement in the drug ring, which involved the importation of pseudoephedrine and the supply of methamphetamine. The court noted that while the appellant played a significant role in the operations, she was not the instigator or controller. The District Court had assessed the appellant's role as "crucial" and applied a four-year starting point for her sentence, adjusted by various discounts for mitigating factors, ultimately resulting in a three-year imprisonment term. The court acknowledged the appellant's difficult upbringing, her addiction to methamphetamine, and the influence of her partner, but concluded that these personal circumstances carried little weight given the serious nature of the drug-related offences. The court also noted that the appellant had taken steps towards rehabilitation, including moving to Hamilton and participating in the Bridge programme. However, the court found that the sentence imposed was neither manifestly excessive nor disproportionate compared to the sentences of the co-offenders. The appeal was ultimately dismissed, affirming the District Court's sentence.

Orders