Sudol v Police - [2014] NZHC 1264

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000013 [2014] NZHC 1264

BETWEEN
JESSICA ANNE SUDOL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 June 2014

Appearances:

M A Stevens for Appellant
R D Smith for Respondent

Judgment:

6 June 2014

JUDGMENT OF GENDALL J

Introduction

[1] Jessica Anne Sudol (“Ms Sudol”) appeals against a sentence of 30 months imprisonment imposed on 29 April 2014 by Judge Bouchier in the District Court for one representative count of offering to sell a Class B controlled drug.

[2] The appeal is advanced on two grounds:

(a) The sentence is manifestly excessive.

(b)The Judge erred at law in determining the appropriate sentence by: (i) Failing to give a discount for personal circumstances; and
(ii)The discount for guilty plea was applied before uplift for previous convictions, resulting in a lesser discount than if the
uplift was applied before the discount.

SUDOL v NEW ZEALAND POLICE [2014] NZHC 1264 [6 June 2014]

Background facts

[3] Between 7 October 2013 and 20 December 2013 (“the period”) Ms Sudol, who at age 23 had been diagnosed with ADHD and prescribed Ritalin, was regularly sourcing, using and selling additional doses of Methylphenidate (Ritalin). She offered the drugs on a number of occasions to five people. On one occasion she offered to supply eight cards (80 tablets) for $1,000. During the period Ms Sudol offered to supply in total approximately 491 20 mg tablets, with a value of approximately $4,910 ($10 per pill, or $100 per 10 pills).

[4] Ms Sudol is now aged 28 years. She has a […] year old daughter (“X”) for whom Ms Sudol has primary care. [X] attends the […] early learning centre. Ms Sudol contends that if she is imprisoned, there is no one else available to look after her daughter.

[5] Ms Stevens, her counsel, contends that Ms Sudol experienced a difficult childhood which involved neglect and physical and verbal abuse. She says Ms Sudol is therefore making a concerted effort to ensure her daughter experiences a loving, caring upbringing. The defence suggests that Ms Sudol engaged in this offending in order to ensure she and [X] were able to obtain the necessities of life, such as groceries, and to enable Ms Sudol to purchase birthday and Christmas presents for [X].

[6] As to previous offending, Ms Sudol has an extensive history of criminal and traffic offending.

[7] Included in this history are five convictions involving possession of drugs and drug utensils, and 12 convictions for breaching community based sentences or prison release conditions. This is her first appearance for supply of drugs.

Pre-Sentence Report

[8] In the pre-sentence report before the District Court at sentencing, home detention was recommended. The report reiterated that Ms Sudol says she sold the drugs:

…because she was ‘desperate for money’ to meet expenses for her daughter’s birthday (October) and Christmas. She asserted she had not been selling for long.

[9] The report then goes on to state:

These minimisations and justifications undermine remorse and…

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 Sudol v Police

Details

AGLC: Sudol v Police [2014] NZHC 1264
Case: [2014] NZHC 1264
Decision Date: 6 June 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Jessica Anne Sudol appealed against a 30-month imprisonment sentence imposed by Judge Bouchier in the District Court for offering to sell a Class B controlled drug. The appeal was based on the grounds that the sentence was manifestly excessive and that the judge erred in not considering personal circumstances and applying the guilty plea discount correctly. The court examined the legal issues of sentencing principles and the appropriate application of discounts. The High Court found that while the starting point of three years was appropriate, the court should have applied a further 5% discount for personal circumstances, resulting in a final sentence of two years and three months. The appeal succeeded, and the original sentence was quashed.

Orders