The Queen v Hair - [2009] NZCA 214

IN THE COURT OF APPEAL OF NEW ZEALAND
CA723/2008
[2009] NZCA 214
THE QUEEN
v
MAREE ELIZABETH HAIR
Hearing:6 May 2009

Court:Glazebrook, Potter and Asher JJ
Counsel:D S Niven for Appellant

B D Tantrum and S Earl for Crown

Judgment:28 May 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
_________________________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Introduction
[1] The appellant was found guilty following trial on four drug related offences involving the Class A drug methamphetamine:
(a)Conspiring with others to manufacture methamphetamine (Count 2 in the indictment);
(b)Supplying methamphetamine (Count 15);
(c)Offering to supply methamphetamine (Count 17);
(d)Conspiring with others to supply methamphetamine (Count 69).

[2] She was sentenced to seven years’ imprisonment on the lead offence and appeals against that sentence on the ground that it is manifestly excessive because:
(a)The starting point for the lead offence (Count 2) was set too high due to the level of supply of ContacNT being overstated;
(b)The totality of the appellant’s offending was set too high and does not properly reflect the lack of commerciality in her dealings; and
(c)No credit was given for significant mitigating factors and, as a result, the sentence does not truly reflect parity between co-offenders.

Background facts
[3]       The offending of Ms Hair and her six co-offenders was detected during the course of a police investigation known as “Operation Twickers”, carried out from June to October 2005. The Crown’s case was that the precursor substance ContacNT was supplied, primarily by a Mr Tang to a Mr Marsh, and moved by him through intermediaries, including the appellant Ms Hair and a Ms Teo, to methamphetamine cooks. Finished methamphetamine was channelled back to Mr Marsh through Ms Hair and Ms Teo.
[4]       ContacNT supplied to Ms Hair by Mr Marsh was on-supplied by her to a methamphetamine cook referred to as “Mitchell”. In sentencing the Judge proceeded on the basis of a Crown memorandum showing in the order of 1500 packets of ContacNT supplied by Ms Hair. Evidence given at trial as to the possible methamphetamine yield from that amount of ContacNT provided the basis for the Crown’s submission that the yield would be between 669 grams and 1 kilogram of methamphetamine.
[5]       The convictions on the charges of supplying, offering to supply and conspiracy to supply methamphetamine all resulted from intercepted text and cellphone communications and audio surveillance. In the case of Ms Hair, the supply of methamphetamine involved one gram of methamphetamine and the offer to supply involved ten grams of methamphetamine.
[6]       The conspiracy to supply charge arose out of subsequent police surveillance in late May 2006 after Ms Hair had been arrested and released on bail for the offending arising out of Operation Twickers. It involved the supply of commercial quantities (in grams) of methamphetamine.
Sentence appealed
[7]       On 21 August 2008, Andrews J, the trial Judge, sentenced Ms Hair and five of the other offenders convicted of various drug related offences following trial.…

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 Hair

Details

AGLC: The Queen v Hair [2009] NZCA 214
Case: [2009] NZCA 214
Decision Date: 28 May 2009

CaseChat Overview and Summary

The appellant, Maree Elizabeth Hair, was found guilty on four drug-related offences involving the Class A drug methamphetamine and sentenced to seven years' imprisonment on the lead offence. Hair appeals the sentence on the basis that it is manifestly excessive due to several perceived errors in the sentencing process. The first issue is whether the starting point for the lead offence was set too high because the level of supply of ContacNT was overstated. The second issue is whether the totality of Hair's offending was set too high and does not properly reflect the lack of commerciality in her dealings. The third issue is whether the sentence failed to give credit for significant mitigating factors, resulting in a lack of parity between co-offenders.

The Court of Appeal found that the adjustment in the quantity of ContacNT from 1500 to 1200 packets does not impact upon the initial starting point taken by the Judge, as the Crown submitted. The Court held that the Judge accurately reflected the level of Hair's offending and carefully distinguished between the level of culpability of Hair in the conspiracy compared to that of other co-offenders. The Court found that the uplift of twelve months' imprisonment, given Hair's subsequent offending while on bail, was modest. The Court held that it was open to the Judge to impose a cumulative sentence or to apply an uplift of, say, two years and then to have allowed a discount of, say, one year for mitigating factors. However, in applying the uplift of one year, Andrews J clearly stated that she was considering the offending as a whole.

The appeal is dismissed, and the sentence of seven years' imprisonment on the lead offence is upheld.

Orders