Vaine v R - [2011] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND

CA833/2010
[2011] NZCA 283

BETWEEN LEAH JEANETTE VAINE
Appellant

AND THE QUEEN
Respondent

Hearing: 13 June 2011

Court: Wild, Keane and Miller JJ

Counsel: K L McHugh for Appellant
K Laurenson for Respondent

Judgment: 21 June 2011 at 12.30 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed and the sentence of two years, four months imprisonment (almost seven months of which has been served) is quashed.
BA sentence of three months home detention is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

On 18 November 2010 Leah Vaine was sentenced in the District Court, Invercargill, to imprisonment for two years, four months, having pleaded on arraignment to possession on 10 March 2010 of the class C controlled drug, cannabis, for the purpose of sale. Ms Vaine appeals her sentence as manifestly excessive on a single ground. She takes issue with the discount the Judge gave her for plea.
Ms Vaine accepts that her offence warranted the starting point Judge Phillips took, two and a half years imprisonment. That same starting point had been taken when her niece, Rachee Matehe, with whom she was charged jointly, was sentenced in the High Court on 3 August 2010.[1]
[1] R v Matehe HC Invercargill CRI-2010-025-000904, 3 August 2010.
She accepts that the Judge was entitled to add six months because of her previous related convictions. In May 2003, for possession of cannabis for supply, she was sentenced to 100 hours community work. In February 2010, for cultivating and possessing cannabis, she was sentenced to a further 80 hours community work and six months supervision.
Ms Vaine was sentenced, however, just two days after the Supreme Court issued its decision in R v Hessell.[2] The Judge held that even if she had until then been entitled to a full one‑third discount, according to this Court's decision that was set aside,[3] that was no longer so. Even if her plea was entered at the earliest opportunity, he said, given the strength of the prosecution case, the greatest discount she was entitled to was 20 percent.
[2] R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
[3] R v Hessell NZCA 450, [2010] 2 NZLR 298.
On this appeal Ms Vaine contends that, though the Supreme Court's decision could, in law, have been given retrospective effect, in her case that was unfair. She had entered her plea after a delay because her original counsel had not advised her adequately as to plea or at all. Though she pleaded on arraignment on 29 July 2010 she was not sentenced until 18 November. On arraignment she had applied to have the credit for plea settled before sentence, but the Judge decided that issue on sentence and that worked against her. She ought, she contends, to have been allowed a full one-third discount.
The magnitude of the discount the Judge gave Ms Vaine was crucial. The 20 percent discount he gave…

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 Vaine v R

Details

AGLC: Vaine v R [2011] NZCA 283
Case: [2011] NZCA 283
Decision Date: 21 June 2011

CaseChat Overview and Summary

Leah Jeanette Vaine appealed against her sentence imposed by the District Court, Invercargill, in which she was found guilty of possessing cannabis for the purpose of sale. The Court of Appeal allowed the appeal and substituted a sentence of three months home detention for the original sentence of two years, four months imprisonment. The appeal was based on the ground that the sentence was manifestly excessive, specifically regarding the discount given for the plea. Ms Vaine argued that the District Court Judge erred in not granting her a full one-third discount for her plea, instead only allowing a 20% discount.

The Court of Appeal found that while the District Court Judge did not make any error of law in applying the Supreme Court's principles on discount for plea, the decision was inconsistent with other Court decisions made after the Supreme Court's decision. The Court of Appeal considered that Ms Vaine's plea, though late, was entered at the first reasonable opportunity, and therefore, she should be granted a full one-third discount. The Court of Appeal substituted a sentence of home detention for the original sentence of imprisonment, considering it would be more beneficial for Ms Vaine's rehabilitation and reintegration into her family.

The final orders were that Ms Vaine's sentence of imprisonment should be quashed, and a sentence of home detention for three months should be imposed, with specific conditions to be met during the term of the sentence.

Orders