Smith v R - [2012] NZCA 224

IN THE COURT OF APPEAL OF NEW ZEALAND

CA781/2011
[2012] NZCA 224

BETWEEN ANGELA KAYE SMITH
Appellant

AND THE QUEEN
Respondent

Hearing: 21 May 2012

Court: Arnold, Ronald Young and Keane JJ

Counsel: C M Ruane for Appellant
B C L Charmley for Respondent

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…

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 Smith v R

Details

AGLC: Smith v R [2012] NZCA 224
Case: [2012] NZCA 224
Decision Date: 1 June 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against sentence by Angela Kaye Smith against the Crown. Smith was found guilty of manufacturing methamphetamine, conspiracy to manufacture methamphetamine, possession of equipment capable of being used to manufacture methamphetamine and possession of precursor substances, as well as neglect of her child. The disparity between Smith's sentence and that of her co-accused, Jonathan Jones, was the basis of the appeal. Smith was sentenced to three years, nine months' imprisonment, while Jones was sentenced to five months' community detention, 300 hours community work, and six months' supervision. Smith argued that the different sentences resulted in an unjustified disparity.

The legal issues before the court were whether the appellant's application to extend time to appeal should be granted, whether there was an unjustified disparity between the appellant's sentence and that of her co-accused, and if so, what sentence should be substituted. The court found that the appellant had made a good faith effort to appeal her sentence and granted the application to extend time. The court also found that there was an unjustified disparity between the sentences of Smith and Jones, and that the appellant's sentence should be reduced. The court substituted a sentence of two years, 11 months' imprisonment for Smith, a 10-month reduction from the original sentence.

The court found that while there were some modest distinguishing features between Smith's case and Jones's case, these features did not justify such a wide disparity between their sentences. The court found that 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. However, the court found that the sentencing judge exaggerated the differences between the two cases. The court also found that Smith had made efforts toward her rehabilitation, had tried to remain drug-free throughout the two years from charge to sentencing, and had received praise from drug counselling and other intervention organisations for her efforts. The court considered that Smith's sentence was unjustifiably heavy, and that Jones's sentence was unjustifiably light. However, the Crown did not challenge Jones's sentence by appeal. The court found that the factors it had identified in respect of Smith justified a further reduction in her sentence.

Orders