The Queen v Smith - [2008] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND
CA639/07
CA640/07
[2008] NZCA 175
THE QUEEN
v
SCOTT JASON SMITH
LEE-ELLA PAULINE SMITH
Hearing:26 May 2008

Court:William Young P, Randerson and Harrison JJ
Counsel:G A Hay for Appellants

S B Edwards for Crown

Judgment:20 June 2008 at 9 am

JUDGMENT OF THE COURT

A The appeal is allowed.
B The sentences for both Scott Jason Smith and Lee-Ella Pauline Smith on the counts of manufacturing methamphetamine are quashed and sentences of six and three years respectively are substituted.
CThe concurrent sentences on the remaining charges are undisturbed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1] The Solicitor-General appeals against sentences of imprisonment imposed on the respondents by Panckhurst J for drug related offending to which they had pleaded guilty.
[2] Scott Jason Smith was sentenced to four years and eight months imprisonment on the following charges:
(a)Two counts of manufacturing the Class A controlled drug methamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1975;
(b)Two counts of possession of equipment for the manufacture of methamphetamine contrary to s 12A(2)(a) of the Misuse of Drugs Acts 1975;
(c)Two counts of possession of precursor substances for the manufacture of methamphetamine contrary to s 12A(2)(b) of the Misuse of Drugs Act 1975; and
(d)One count of failing to answer bail in the District Court contrary to s 37(a) of the Bail Act 2000.

[3]       Mr Smith’s wife, the respondent Lee-Ella Pauline Smith, was sentenced to two years and four months imprisonment on charges which were the same save that she faced only one count each of possession of equipment and precursor substances.
[4]       The Judge adopted a starting point of seven years imprisonment for Mr Smith but allowed a one-third credit of two years and four months for an early guilty plea to arrive at a sentence of four years and eight months on the manufacturing charges. Concurrent sentences were imposed on the other charges.
[5]       The Judge assessed Mrs Smith’s culpability as about half that of her husband. After allowing a one-third credit for her guilty plea, the Judge arrived at the sentence of two years and four months imprisonment on the manufacturing charges. Concurrent sentences were imposed on the other charges.
[6]       For the purposes of this appeal, the Solicitor-General does not challenge:
(a)The discounts for the pleas of guilty.
(b)The Judge’s assessment of the relative culpability of Mr and Mrs Smith.
(c)The Judge’s decision not to impose minimum periods of imprisonment.
(d)The concurrent sentences on the other charges.

[7]       The essence of the Solicitor-General’s appeal is a submission that the sentence was manifestly inadequate because the Judge adopted a starting point which was too low.
The Facts
[8]       The charges followed the discovery of four separate clandestine methamphetamine laboratories on property associated with the respondents between 16 August 2007 and 1 October 2007.
16 August – Hutcheson Street
[9]       On 16 August, the police executed a search warrant at an address on Hutcheson Street in…

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 Smith

Details

AGLC: The Queen v Smith [2008] NZCA 175
Case: [2008] NZCA 175
Decision Date: 20 June 2008

CaseChat Overview and Summary

The appeal in The Queen v Smith involved the sentences imposed on Scott Jason Smith and Lee-Ella Pauline Smith, who were convicted of multiple drug-related offences. The respondents were sentenced to four years and eight months and two years and four months respectively for manufacturing methamphetamine and related charges. The appeal was brought by the Solicitor-General on the grounds that the sentences were manifestly inadequate because the starting point adopted by the sentencing judge was too low. The Court of Appeal agreed with the Solicitor-General that the starting point of seven years was too low and quashed the original sentences, substituting sentences of six and three years for Mr and Mrs Smith respectively on the manufacturing charges. The concurrent sentences on the remaining charges were left undisturbed.

The key issue before the Court was whether the starting point adopted by the sentencing judge was appropriate given the nature and extent of the offending. The Court found that the starting point of seven years was too low and resulted in a manifestly inadequate sentence. The Court accepted that the quantity of methamphetamine manufactured was likely to have been in excess of 200 grams and that a starting point towards the upper end of the range was justified. The Court also found that the respondents' personal circumstances did not warrant a merciful approach to sentencing, as deterrence was the predominant factor. The Court concluded that the starting point should have been a minimum of nine years, leading to sentences of six and three years for Mr and Mrs Smith respectively.

Orders