The Queen v Gordon-Smith - [2008] NZCA 33

IN THE COURT OF APPEAL OF NEW ZEALAND
CA648/07
[2008] NZCA 33
THE QUEEN
v
DEBORAH JAN GORDON-SMITH
Hearing:14 February 2008

Court:William Young P, Chambers and Robertson JJ
Counsel:S T Bailey and A J Bailey for Appellant

B M Stanaway for Crown

Judgment:27 February 2008 at 3 pm

JUDGMENT OF THE COURT

A        AN EXTENSION OF TIME FOR APPEALING IS GRANTED.
B        The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       The appellant was found guilty at trial of:
(a)conspiracy to supply a class A controlled drug, namely methamphetamine;
(b)supplying a class B controlled drug, namely ecstasy;
(c)possession of ecstasy for supply; and
(d)supplying a class C controlled drug, namely cannabis.

[2]       On the conspiracy to supply methamphetamine, she was sentenced to six years’ imprisonment. There was a cumulative two years’ imprisonment for the supply of ecstasy. Ms Gordon-Smith was also sentenced to two years’ imprisonment on each of the other two counts, but these terms were concurrent. The effective sentence was eight years’ imprisonment.
[3]       The heart of this appeal was whether a total sentence of eight years for all the offending was within the range available and properly reflective of the appellant’s culpability.
[4]       The application to appeal was filed out of time. The appellant was one of a number who were convicted at trial. Thereafter she had a change of counsel. Other issues arising out of the trial were in a timely way before the Court. There was no opposition to leave being granted and the merits of the matter were accordingly considered.
Background
[5]       Fogarty J said about the facts:
[3]       I am quite satisfied on the evidence I heard while presiding over the trial that you were making a large number of purchases during these deliveries from 13 October through down to at least the end of November. In that sense I have no doubt that the jury came to the correct decision. The difficulty that this sentencing poses, as you have heard from the exchanges I have had with counsel, is to try to work out reliably how much methamphetamine you were purchasing for supply. I have to take into account that although there were numerous meetings between you and Mr Sui we cannot assume that each meeting was a drug purchase. Second, by and large, there is no direct evidence as to how much you were buying each time and then I need to factor in your own usage as a drug addict on methamphetamine.

[6] It is common ground that the appellant was receiving methamphetamine from suppliers who were based in Christchurch (they themselves having been supplied with methamphetamine from others) and that she was on-selling methamphetamine to mid-level dealers and end users directly.
The correct starting point
[7] Mr Bailey noted the decision of this Court in R v Fatu [2006] 2 NZLR 72 with respect to the supply of methamphetamine and emphasised the subsequent gloss thereon in R v Te Rure [2007] NZCA 305

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 Gordon-Smith

Details

AGLC: The Queen v Gordon-Smith [2008] NZCA 33
Case: [2008] NZCA 33
Decision Date: 27 February 2008

CaseChat Overview and Summary

The case of The Queen v Deborah Jan Gordon-Smith involved the appellant appealing against her conviction and sentence. The appellant was found guilty of conspiracy to supply methamphetamine, supplying ecstasy, possession of ecstasy for supply, and supplying cannabis. She was sentenced to six years for the conspiracy to supply methamphetamine, with a cumulative two years for the supply of ecstasy, and two years for each of the other two counts, but these terms were concurrent. The total effective sentence was eight years imprisonment. The appeal focused on whether the total sentence of eight years was within the appropriate range and properly reflective of the appellant's culpability.

The legal issues before the court were whether the trial judge had erred in not applying a discount to the Fatu sentencing bands for the conspiracy charge and whether the total sentence imposed was within the judge's discretion and properly reflected the totality of the offending and the circumstances of the offender. The court considered these issues in light of relevant case law and sentencing principles.

The Court of Appeal found that while the appellant was entitled to some discount for the conspiracy charge, the discount would have been minimal given the advanced stage of the conspiracy. The court further held that the overall sentence imposed was within the trial judge's discretion and appropriately reflected the totality of the offending. The court noted that the appellant was involved in a significant commercial operation and that the sentence, while at the higher end of the available range, was not manifestly excessive. The appeal was therefore dismissed.

The court granted an extension of time for the appeal and dismissed the appeal against conviction and sentence.

Orders