The Queen v McLiesh - [2009] NZCA 308

IN THE COURT OF APPEAL OF NEW ZEALAND
CA348/2009
[2009] NZCA 308
THE QUEEN
v
LEEZANNE MCLIESH
Hearing:14 July 2009

Court:Chambers, Randerson and Keane JJ
Counsel:N C Wintour for Appellant

J M Jelas for Crown

Judgment:17 July 2009 at 10 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of imprisonment for two years three months imposed on the charge of supplying methamphetamine is quashed and a sentence of 18 months imprisonment is substituted.
CThe concurrent sentences on the remaining charges are undisturbed.

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REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1]       After a sentencing indication, the appellant pleaded guilty to a series of charges under the Misuse of Drugs Act 1975. She was sentenced on 10 June 2009 by Judge David Harvey in the District Court to a term of imprisonment of two years three months. She now appeals against that sentence on the ground that it was manifestly excessive and on the ground that the Judge did not impose a sentence of home detention which, the appellant contends, was impliedly indicated by the Judge at the time of the sentencing indication.
Background facts
[2]       The sentencing indication was given on 22 April 2009 in respect of two indictable charges: one of supplying methamphetamine and one of simple possession of methamphetamine. At the time of the sentencing indication, the appellant was also facing additional charges laid summarily which arose from the same incident as the indictable charges. Although the Judge was informed of these charges, there was no evidence before the Court of the details of them and they do not appear to have been considered as part of the sentencing indication.
[3]       The brief record of the sentencing indication was expressed in the following terms:
[1] Starting point of three years. Adjustment for personal mitigation and guilty plea two years, three months. Other matters may be revealed by the pre-sentence report which could bring the matter into home detention territory but that is the indication at the moment Mr Anderson.
[2] On the basis, Mr Anderson, that the charges are of an historical nature, well not quite historical but getting a bit old, and that she has family responsibilities, I would grant her bail.
[3] There is a possibility too that, although I have indicated imprisonment, that may well change. I think that I can step away from a rigorous approach to s 13.

[4] As a result of the sentencing indication, the appellant pleaded guilty the same day to the indictable charges. At the sentencing hearing on 10 June 2009, the appellant also pleaded guilty to five summary charges.
[5] All the charges arose from an incident on 31 December 2007 when the appellant’s motor vehicle was stopped by the police in the early hours of the morning. Located in the vehicle were 28 point bags, three of which were found to contain methamphetamine powder residue. Also located were three point bags containing a total of .279 grams of crystal methamphetamine,…

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 McLiesh

Details

AGLC: The Queen v McLiesh [2009] NZCA 308
Case: [2009] NZCA 308
Decision Date: 17 July 2009

CaseChat Overview and Summary

In the matter of The Queen v Leezanne McLiesh, the appellant sought to appeal her sentence, contending that it was manifestly excessive and that the judge had failed to impose a sentence of home detention as impliedly indicated during the sentencing indication. The appellant was sentenced to a term of imprisonment of two years and three months by Judge David Harvey in the District Court on 10 June 2009. The appellant pleaded guilty to a series of charges under the Misuse of Drugs Act 1975, including supplying methamphetamine and simple possession of methamphetamine, as well as additional charges laid summarily. The court was required to determine whether the sentence was manifestly excessive and whether the judge had erred in not imposing a sentence of home detention.

The court found that the sentence of two years and three months was manifestly excessive. The court noted that the actual quantity of methamphetamine found in the appellant's possession was only .279 grams, and it was difficult to assess the period of time over which the appellant may have been dealing prior to her arrest. The court considered a starting point towards the lower end of Band 1 in R v Fatu, which should not have exceeded two or perhaps two and a half years. The court accepted the Crown's submission that a reduction of 25 per cent was justified for the guilty plea, resulting in a sentence of 18 months imprisonment.

The court also considered whether the judge had erred in not imposing a sentence of home detention. The court found that the judge was right to give weight to the factors of denunciation and deterrence and that a sentence of imprisonment was appropriate. The court noted that the appellant had shown no evidence of remorse or insight into her offending and that the probation officer's assessment that she was at a low risk of reoffending was treated with some circumspection. The court found that the judge had not erred in declining home detention.

The appeal against sentence is allowed. The sentence of imprisonment for two years three months imposed on the charge of supplying methamphetamine is quashed and a sentence of 18 months imprisonment is substituted. The concurrent sentences on the remaining charges are undisturbed.

Orders