The Queen v Maria Marino

[2002] NZCA 30

IN THE COURT OF APPEAL OF NEW ZEALAND CA425/01

THE QUEEN

V

MARIA MARINO

Coram:	Gault J Keith J Blanchard J
Counsel:	P F Gorringe for Appellant A Markham for Crown
Judgment (on the papers):	12 March 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offences and sentence

1. The appellant was convicted on a plea of guilty of the following offences:

   [a]        Possession of cannabis oil for supply

   [b]        Supplying cannabis oil

   [c]        Possession of cannabis plants for sale

   [d]        Selling cannabis plants

The appellant was sentenced on 26 November 2001 in the District Court at Hamilton to 18 months imprisonment.

Relevant facts

1. For about one and a half to two weeks the appellant commercially supplied cannabis from her home.  She sold caps of cannabis oil and tinnies of cannabis.  The Judge accepted her uncontested claim that she did not sell to people under the age of 30.  In the appellant’s home the police discovered 40 capsules of cannabis oil, which she was selling at $20 each, and 219 g of cannabis plant, which was to be turned into tinnies.  11 tinnies had already been made up for sale.  The appellant’s total profit was $900.

Grounds of appeal

1. The appeal is only against the Judge’s decision under s21D(4) of the Criminal Justice Act 1985 to decline leave to the appellant to apply under s103 of that Act to a District Prisons Board for release to home detention.  It is submitted that leave should have been granted because:

• She has five children of school age;

• She has no previous drug convictions and only one prior criminal conviction which is of no present relevance; and

• She was assessed by the Probation Officer as suitable for rehabilitation.

Reasons

1. This is an appeal from the exercise of a discretion and the Judge has not been shown to have erred in principle or to have been clearly wrong.  We indeed agree with the sentencing Judge that it would be wrong to allow the appellant to serve part of her sentence in her home which was the very place from which she ran the cannabis business and that the need to impose a deterrent penalty outweighed the impact of her imprisonment on her family.  The offending was serious, falling within the second category identified in R v Terewi [1999] 3 NZLR 62. There was an additional aggravating feature in the supply of a class B drug. Her husband, also living in the house, has multiple convictions for cannabis offending.

Decision

1. The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington