The Queen v Farquhar

[2009] NZCA 284

IN THE COURT OF APPEAL OF NEW ZEALAND

CA158/2009
[2009] NZCA 284

THE QUEEN

v

SUZANNE MARGARET FARQUHAR

Hearing:23 June 2009

Court:Baragwanath, Randerson and Miller JJ

Counsel:M J Lillico and M Boyd for Appellant

M E Ball for Crown

Judgment:3 July 2009 at 10.00 a.m.

JUDGMENT OF THE COURT

A        THE APPLICATION FOR AN EXTENSION OF TIME IS GRANTED.

B        THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

[1]       The appellant appeals against her sentence of two years three months imprisonment for two sets of drug offending imposed by Ronald Young J in the High Court.  The appellant had pleaded guilty to all charges. 

[2]       The appellant filed her notice of appeal two months late, stating she had had difficulty finding trial counsel.  The late filing does not prejudice the Crown, and the Crown did not oppose the extension in its submissions.  The extension of time is granted.  

[3]       The first offending on 4 July 2008 involved possession of cannabis for supply, possession of methamphetamine for supply, possession of utensils involved in the use of methamphetamine, and possession of a syringe for cannabis use.  The second offending, between 25 July 2008 and 27 August 2008, concerned offering to sell cannabis and possession of cannabis for supply.

[4]       In respect of the first offending the Police had attended the appellant’s address in the course of a routine inquiry.  Seeing her smoking methamphetamine they conducted a search and found four cannabis tinnies, each containing about one gram of cannabis head material, eight pieces of foil ready for use, 10.8 grams of cannabis head, spotting knives, and a cannabis pipe.  They also found one point bag containing methamphetamine, five empty point bags, a syringe and a methamphetamine pipe.  The plea of guilty to the charges relating to the first offending was entered on 17 October 2008.

[5]       In the meantime, while the appellant was on bail for the first offending, on 25 July 2008 in the course of an undercover investigation by the Police into the sale of controlled drugs a special duties constable approached the appellant and sought to buy controlled drugs.  During the conversation she offered to sell him some cannabis, although this did not occur.  On 27 August 2008 the Police executed a search warrant and located 954 grams of cannabis leaf.  The appellant pleaded guilty to the second set of charges on 2 October 2008.

[6]       Prior to sentence the appellant commenced drug counselling, attending two appointments and, according to the alcohol and drug counsellor, appearing to be motivated to engage in alcohol and drug counselling.

[7]       The pre-sentence report recorded previous convictions for offending in November 2006 and April 2007 which were cannabis-related.  The appellant’s motivation for the offending was economic.

[8]       The High Court adopted a starting sentence of three years imprisonment to take account of both sets of offending including the aggravating feature that the second offending occurred while the appellant was on bail.  Nine months was deducted for the guilty plea, resulting in a sentence of two years three months on the count of possession of cannabis for supply in each set of counts.  The Judge imposed sentences of 12 months in respect of the charge of offering to sell cannabis, and one month for each count of possession of methamphetamine and cannabis paraphernalia.  The sentences were concurrent.

[9]       Mr Lillico challenged the Judge’s opinion that the initial offending warranted starting points of perhaps 18 months imprisonment and the second, taken by itself, a term of some two and a half years.  He submitted that the three year starting sentence for the combined offending was too high.

[10]     We disagree.  It is unnecessary to analyse the Judge’s opinion on the individual counts; what matters is the effective sentence.  Mr Lillico did not dispute that a starting point of two and a half years for the second set of offending was justifiable.  The six months increase to a total of three years was justified having regard to the first set of offending, the appellant’s prior convictions and the fact that the second set of offending occurred while the appellant was on bail.

[11]     Mr Lillico submitted that the 25 per cent reduction for the pleas of guilty to two years and three months was inadequate.  Again, we disagree.  There was a delay with respect to both sets of offending between the appellant being apprehended and charged with the relevant offences and her pleading guilty.  With respect to the first offending, the appellant was charged with the various offences on 8 and 28 July.  She did not plead guilty until 17 October.  With respect to the second offending, the appellant was charged with offering to sell on 27 August and with possession for supply on 4 September.  She pleaded guilty on 2 October.  The 25 per cent reduction was open to the Judge.

[12]     Mr Lillico also contended that the Judge gave insufficient weight to other mitigating factors, being the appellant’s willingness to undergo drug counselling, the community support she enjoys, and the difficulties that her imprisonment causes her teenage son.  He also submitted that she has now sold her home and so has lost the incentive to offend.  However, the Judge did not err by attaching little weight to personal circumstances.  There are cases in which Judges have taken a rehabilitative approach to drug sentencing, but they are uncommon.  Having offended for financial reasons, and while on bail, the appellant could not realistically expect a sentence of that kind.

[13]     We are satisfied that the total sentence was within range and dismiss the appeal.

Solicitors:

Crown Law Office, Wellington