The Queen v Johnston - [2006] NZCA 87

IN THE COURT OF APPEAL OF NEW ZEALAND
CA448/05
THE QUEEN
v
CUSHLA JOHNSTON
Court:Hammond, Chambers and Robertson JJ
Counsel:P J Kaye for Appellant

S B Edwards for Crown

Judgment (On the Papers): 16 May 2006

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS
(Given by Chambers J)
Possession of precursor substances
[1]       On 22 December 2004, police executed a search warrant at an address in Papakura. At that time, Cushla Johnston, the appellant, and Graeme Vowels were present. Police searched Ms Johnston and found in her pocket a hypodermic needle of the kind used by drug users for injecting illicit drugs. When asked for an explanation, Ms Johnston told the police that she had found the needle outside a supermarket and had picked it up for safe-keeping.
[2]       The police found in a cooler bag six bottles of chemicals, including hydrochloric acid and toluene. Those chemicals are prohibited precursor substances listed in Part 2 of the Fourth Schedule of the Misuse of Drugs Act 1975; they are predominantly used to extract the base precursor substance, pseudoephedrine, as part of the process of manufacturing methamphetamine. The police also found in a bag of children’s clothing two plastic soft drink bottles containing two-layer liquids, which were believed to be the by-product of the extraction of pseudoephedrine from cold and flu tablets. Ms Johnston was asked about these. She said that she had obtained the bag of children’s clothing from a clothing bin and that the soft drink bottles must have been there all along.
[3]       The police charged Ms Johnston and Mr Vowels with three counts under s 12A of the Misuse of Drugs Act. These counts related to the accused having in their possession precursor substances, namely pseudoephedrine, hydrochloric acid, and toluene, in each case with the intention that the substance be used in, or for, the commission of an offence against s 6(1)(b) of the Misuse of Drugs Act, namely the production or manufacture of any controlled drug. In addition, Ms Johnston was charged under s 13 of the Misuse of Drugs Act with having in her possession a hypodermic needle for the purpose of the commission of an offence under s 7 of the Misuse of Drugs Act, namely the use of any controlled drug.
[4]       Ms Johnston pleaded not guilty to those four charges. A District Court jury found her guilty on all charges. Judge Blackie, the trial judge, sentenced Ms Johnston to concurrent sentences of 18 months’ imprisonment in respect of each of the charges involving the precursor substances. On the needle charge, he imposed a sentence of six months’ imprisonment (concurrent). The total sentence was therefore 18 months’ imprisonment. He declined leave to apply for home detention.
Issue on the appeal
[5]       There is only one issue on the appeal: was that sentence of imprisonment manifestly excessive?
[6]       This appeal has been heard on the papers under s 392B of the Crimes Act 1961. The relevant materials, including written submissions, have been considered by…

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 Johnston

Details

AGLC: The Queen v Johnston [2006] NZCA 87
Case: [2006] NZCA 87
Decision Date: 16 May 2006

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Cushla Johnston was heard and determined. The appellant, Cushla Johnston, had been found guilty by a jury in the District Court of several drug-related charges, including possession of precursor substances with intent to manufacture a controlled drug. Johnston appealed against her sentence, arguing that it was manifestly excessive. The appeal was dismissed by the Court of Appeal.

The key legal issue before the Court of Appeal was whether the sentence imposed by the trial judge was manifestly excessive. The trial judge, Judge Blackie, had sentenced Johnston to 18 months’ imprisonment, which was the concurrent total for four drug-related charges. The appeal was heard on the papers, and the court considered the written submissions and previous case law. The Court of Appeal determined that the sentence was within an appropriate range and that the judge had properly considered both aggravating and mitigating factors in arriving at the sentence.

Judge Blackie identified two aggravating factors: the premeditated nature of the offending and Johnston's prior history of drug-related convictions. However, the judge also considered mitigating factors, such as Johnston's unhappy childhood, her abusive relationship with her co-offender, and the fact that she appeared to be drug-free at the time of sentencing. The Court of Appeal found that the sentence was justified by the seriousness of the offending and the need for deterrence. Additionally, the Court of Appeal upheld the trial judge's decision not to grant leave to apply for home detention, finding that it was appropriate given the nature of the offending.

No further orders were made by the Court of Appeal, and the sentence of 18 months’ imprisonment was upheld. The Court of Appeal found that the trial judge had properly considered all relevant factors and that the sentence was not manifestly excessive.

Orders