The Queen v Clarke - [2008] NZCA 501

IN THE COURT OF APPEAL OF NEW ZEALAND
CA552/2008
[2008] NZCA 501
THE QUEEN
v
PAULA SUSAN CLARKE
Hearing:20 November 2008

Court:Arnold, Venning and Miller JJ
Counsel:N Cooke for Appellant

N P Chisnall for Crown

Judgment:28 November 2008 at 11.30 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]       The appellant pleaded guilty to supplying a Class B controlled drug, oxycodone, and was sentenced by Judge McGuire to eight months’ imprisonment. She appeals against that sentence.
Background
[2]       On 13 January 2008 the appellant visited her former partner in prison. She had concealed a package containing four oxycodone tablets on her body. Oxycodone is an opiate commonly used for pain relief. It is similar to morphine. The visit was monitored by video camera. A corrections officer observed the appellant passing the package to her partner. The visit was terminated by prison staff and the package recovered. When spoken to by the police the appellant admitted bringing the tablets with her to prison.
The sentence
[3]       The Judge noted the pre-sentence report was not the most flattering. The probation officer considered the appellant showed an ambivalent attitude to her offending. The Judge also noted the appellant said her ex-partner had pressured her and that she had a daughter whose future care was in issue. But the Judge considered that the supply of illegal drugs into prison was regarded as serious. He considered a proper starting point to be one year’s imprisonment. Taking account of mitigating factors including the guilty plea and the appellant’s largely good record he reduced that by a third to arrive at the end sentence of eight months.
Grounds for appeal and discussion
[4]       Mr Cooke (who was not trial counsel) first criticised the summary of facts as being in error in that it referred to:
(a)an allegation relating to the supply of cannabis when the charge was not before the Court;

(b) morphine, when the substance supplied was oxycodone.

[5] Mr Cooke is correct there were errors in the summary of facts, but the Judge was clearly aware of them. The Judge properly sentenced the appellant on the basis of the one count of supply of a Class B controlled drug, oxycodone. He amended the information accordingly. There was no reference in his sentencing notes to the supply of cannabis. There is nothing in this point.
[6] Mr Cooke then submitted that the sentence was manifestly excessive because the appellant received little or no consideration for the fact that she was sentenced as a first offender. That submission does not withstand scrutiny either. The Judge recorded in his sentencing notes counsel’s submission that she had “largely a good record”. He did not take issue with that. The Judge reduced the start point of one year’s imprisonment by one third for mitigating factors. In the absence of significant assistance to the police a discount of one third is the most that could be expected for…

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 The Queen v Clarke

Details

AGLC: The Queen v Clarke [2008] NZCA 501
Case: [2008] NZCA 501
Decision Date: 28 November 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against sentence brought by Paula Susan Clarke, who pleaded guilty to supplying oxycodone, a Class B controlled drug, into a prison. Clarke was sentenced to eight months’ imprisonment by Judge McGuire and appealed against that sentence. The appeal centred on the severity of the sentence and the potential for home detention as an alternative. The Court addressed several points raised by the appellant’s counsel, including errors in the summary of facts, the consideration of Clarke's status as a first offender, the impact of pressure from her former partner, and the appropriateness of home detention as a sentence.

The Court found that while there were errors in the summary of facts, the sentencing judge was aware of these inaccuracies and correctly based the sentence on the charge of supplying oxycodone. Regarding the submission that Clarke's sentence was manifestly excessive due to her status as a first offender, the Court determined that the judge appropriately considered mitigating factors, including Clarke’s largely good record and her early guilty plea, resulting in a reduction from a starting point of one year to eight months. The Court also noted that while Clarke claimed she acted under pressure from her former partner, the pre-sentence report did not support this assertion and that such pressure does not justify a more lenient sentence. Lastly, the Court found that home detention was not appropriate given the need for deterrence in cases involving the supply of drugs into prisons.

The Court concluded that the sentence was not manifestly excessive and dismissed the appeal. The reasoning highlighted the importance of deterrence in sentencing for such offences, and the Court confirmed that the eight-month sentence was appropriate given the circumstances and the precedent set by similar cases.

Orders