Smith v R
[2012] NZCA 224
•1 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA781/2011 [2012] NZCA 224 |
| BETWEEN ANGELA KAYE SMITH |
| AND THE QUEEN |
| Hearing: 21 May 2012 |
| Court: Arnold, Ronald Young and Keane JJ |
| Counsel: C M Ruane for Appellant |
| Judgment: 1 June 2012 at 11.30 am |
JUDGMENT OF THE COURT
A The application to extend time to appeal is granted.
B The appeal against sentence is allowed.
CThe sentence of three years, nine months’ imprisonment is quashed and a sentence of two years, 11 months’ imprisonment is substituted.
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REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
On 19 October 2009, the appellant and her co‑accused, Mr Jonathan Jones, entered guilty pleas to charges of manufacturing methamphetamine, conspiracy to manufacture methamphetamine, possession of equipment capable of being used to manufacture methamphetamine and possession of precursor substances. This offending occurred during the period May–August 2008. In addition, the appellant pled guilty to a charge of neglect of her ten year old child. This offending occurred between February–August 2008.
On 31 August 2010 the appellant was sentenced to three years, nine months’ imprisonment;[1] and Mr Jones to five months’ community detention and 300 hours community work plus six months’ supervision.[2] It is the difference in their sentences which forms the basis of this appeal. The appellant says the different sentences have resulted in an unjustified disparity.
[1] R v Smith DC Nelson CRI-2009-042-4781, 31 August 2010.
[2] R v Jones DC Nelson CRI-2008-042-3161, 31 August 2010.
This appeal was filed on 23 November 2011, some 15 months out of time. The appellant has filed an affidavit detailing her instructions to several lawyers to appeal her sentence. Immediately after sentencing she advised her then counsel that she wanted to appeal. When he was unable to act, she tried other lawyers who were also unable to represent her.
In early October 2010 the appellant wrote to the Legal Services Agency advising she wished to appeal and suggested a lawyer. But he also could not act for her. Eventually she was able to instruct a lawyer in early November 2010 and by December 2010 she thought an appeal had been filed.
As it turned out no such appeal had been filed and was not filed until another lawyer did so in November 2011. We are satisfied the appellant understandably thought an appeal had been filed by late 2010, out of time, but only modestly so. Any delay thereafter is not the appellant’s responsibility.
As to the merits, we consider this is a case where leave to extend time should be granted. We therefore do so.
Facts
On 28 August 2008 the police executed a search warrant at the appellant’s address. The police and ESR scientists identified all the necessary chemicals and equipment, within the house and a sleep out, to manufacture methamphetamine. Subsequent analysis of the chemicals showed that methamphetamine had been manufactured at the site. The evidence to support the conspiracy charge was primarily an exchange of text messages between the appellant and Mr Jones.
As to the neglect to the child charge, the appellant’s son, then aged ten years of age, was living at the address where the methamphetamine had been manufactured. Subsequent testing showed that the young boy had been exposed to methamphetamine between late February and late June 2008.
Initially the appellant denied the charges. Then on the first day of her trial by jury (19 October 2009) the appellant changed her pleas to guilty. However, shortly afterwards she made an application to change her pleas back to not guilty. A further delay resulted. Eventually the appellant confirmed her guilty pleas and was, together with Mr Jones, sentenced on 31 August 2010 by Judge McKegg in the District Court. The appellant was on bail throughout this time.
Mr Jones had pleaded guilty on 21 September 2009. However, it seems that after he was charged in August 2008, he had advised the Crown that he accepted he had attempted to manufacture methamphetamine but was uncertain whether in fact he had done so.
His plea to the charges was, therefore, delayed until an ESR analysis was completed that showed methamphetamine had been manufactured. Mr Jones’ sentencing was then further delayed until 2010 because of the appellant’s then wish to change her guilty plea to not guilty. During the two years from charge to sentencing Mr Jones had been on bail. Initially, for approximately three months, this involved a 24 hour curfew. Later, however, these restrictive terms of bail were relaxed and Mr Jones was able to work full time.
District Court sentencing
The Judge in the District Court took a starting sentence for the appellant and Mr Jones of four years’ imprisonment for the drug charges. For Mr Jones he deducted 33 per cent[3] for what he considered to be Mr Jones’ guilty plea at the earliest opportunity.
[3]R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298. This was the appropriate amount for the earliest guilty plea prior to the Supreme Court’s decision in Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Further deductions were made from the start sentence for the fact that Mr Jones had been on stringent terms of bail restricting his conduct and travel for two years without breach, together with what the Judge considered to be the special efforts made by Mr Jones toward rehabilitation. This ultimately reduced the sentence to one year and 11 months’ imprisonment.
The Judge considered that a community based sentence was appropriate for Mr Jones. Rather than impose home detention, which would, he said, interfere with Mr Jones’ employment, he imposed five months’ community detention together with 300 hours community work. The Judge noted that this was a “very lenient” sentence.
The sentencing Judge took a rather different view of the appellant. He increased her start sentence of four years’ imprisonment for the drug offending by six months for the neglect of her child. The appellant does not challenge this start sentence.
The Judge then concluded that the only mitigation was her guilty plea. He therefore reduced her start sentence by nine months (or 17 per cent) to give the final sentence of three years and nine months’ imprisonment.
Discussion
The appellant’s case is that while there were some modest distinguishing features between her case and Mr Jones’ case at sentencing, these features did not justify such a wide disparity between their sentences.
We accept this is a case where the reasonably minded independent observer, aware of all the relevant circumstances looking at the two sentences, would think something had gone wrong with the administration of justice.[4]
[4] R v Lawson [1982] 2 NZLR 219 (CA) at 223.
There were some reasons to distinguish Mr Jones’ personal circumstances from the appellant’s, entitling him to a lesser sentence. Mr Jones had intimated his guilty plea earlier, he had accepted his role in the offending and he did not face the neglect of a child charge. Moreover, Mr Jones had made significant progress with his rehabilitation. However, we are satisfied at sentencing the Judge exaggerated the differences.
The appellant also made efforts toward her rehabilitation. She had tried to remain drug free throughout the two years from charge to sentencing. Tests completed in 2009 showed at that time she was drug free. The appellant had attended drug counselling and other interventions and had received praise from those organisations for her efforts. The pre‑sentence report noted that she seemed motivated to participate in further drug interventions. The appellant had no previous criminal convictions prior to this offending; in contrast Mr Jones had 13 previous convictions, three involving possession of cannabis in 2000 and 2001. Both appellants had been subject to bail conditions during the remand period.
Finally, the appellant had a spinal deformity from birth, which had caused her lifelong pain and severely limited her employment prospects. She had regularly used cannabis as a pain suppressant to deal with this disability. Given this is likely to cause the appellant some difficulty in prison, some allowance for this disability is appropriate.
We consider that Mr Jones’ sentence was unjustifiably light. But the Crown did not challenge that sentence by appeal. We acknowledge that ordinarily a light sentence imposed on one offender would not result in a reduced sentence for a co‑offender.[5] However, in this case we consider the disparity is so great that it cannot be justified. Further, we are satisfied that the factors we have identified in respect of the appellant justify a further reduction in her sentence.[6]
[5] R v Te Whata CA229/05, 23 February 2006 at [30].
[6] See [20]–[21] above.
We reduce the start sentence of four years and six months’ imprisonment by 12 months. From the three years, six months we apply the same (albeit generous) 17 per cent deduction for the appellant’s guilty plea as given by the sentencing Judge. This results in a final sentence of two years, 11 months’ imprisonment, a 10 month reduction from the three year, nine month term imposed in the District Court.
Result
The application to extend time to appeal is granted. We are satisfied that there was an unjustified disparity between the appellant’s sentence and that of her co‑accused. We therefore quash the sentence of three years, nine months’ imprisonment. Instead on the charge of manufacturing methamphetamine the appellant will be sentenced to two years, 11 months’ imprisonment; on the charge of conspiracy to manufacture methamphetamine to two years’ imprisonment; on the charges of possession of equipment and possession of precursor materials, to one year’s imprisonment; and on the charge of neglecting a child to six months’ imprisonment, all concurrent.
Solicitors:
Crown Law Office, Wellington
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