Wallace v The Queen - [2020] NZHC 2156

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2020-483-007

[2020] NZHC 2156

BETWEEN
ELETISE NATASHA WALLACE

Appellant

AND

THE QUEEN

Respondent

Hearing: 19 August 2020

Counsel:

B A Crowley and T W Luders for appellant J Mara for respondent

Judgment:

24 August 2020

RESERVED JUDGMENT OF DOBSON J

[1] The appellant (Ms Wallace) was sentenced by Judge Crayton in the District Court at Whanganui on 17 May 2019 to a term of five years and four months’ imprisonment for drug dealing and possession and dishonesty offences.1 She has brought this appeal arguing that a lesser term of imprisonment should have been imposed.

[2] The relevant events span a relatively lengthy period. The most recent delay is in pursuit of the present appeal. An appeal was originally filed in the Court of Appeal, but that appeal was abandoned when counsel accepted that a first appeal from the District Court sentencing was required to be in this Court. The notice of appeal to the High Court was inevitably out of time so leave is required to extend the time for doing so. No objection to an extension of time was raised and, in the absence of any prejudice to the position of the respondent, it is appropriate to grant leave and I do so.

1 R v Wallace [2019] NZDC 9288.

WALLACE v R [2020] NZHC 2156 [24 August 2020]

The offending

[3] The offending occurred in two separate periods. The first (group one) occurred between 26 October 2016 and 9 February 2017. It involved:

· three representative charges of offering to supply methamphetamine (81 grams of methamphetamine with 128 offers to sell);

· one representative charge of offering to supply the class C controlled drug cannabis (offers to supply a total of 543 grams);

· two charges of possession of a utensil for methamphetamine consumption;

· one charge of possession of methamphetamine; and

· nine charges of obtaining by deception (causing loss of $9,118.83).

[4] Ms Wallace was on bail for the group one offending when a second set of offences (group two) occurred, between 11 August 2017 and 22 September 2017. These included:

· one charge of offering to supply methamphetamine (19 offers to supply a total of 9.2 grams);

· three charges of offering to supply class B controlled drugs morphine, Ritalin and Zopiclone; and

· three charges of offering to supply class C controlled drugs Diazepam, cannabis and dihydrocodeine (14 offers to supply 51 grams of cannabis, three offers to supply 32 tablets of Diazepam).

[5] Ms Wallace sought and was given a sentence indication on 28 February 2018. Having pleaded guilty, sentencing was deferred to afford Ms Wallace an opportunity to complete a drug rehabilitation programme in the Salvation Army Bridge programme. That involved her location being electronically monitored. She

participated in the Bridge programme from 19 June 2018 to 15 August 2018. During that time, she was suspected of breaching the terms of her electronically monitored bail,…

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 Wallace v The Queen

Details

AGLC: Wallace v The Queen [2020] NZHC 2156
Case: [2020] NZHC 2156
Decision Date: 24 August 2020

CaseChat Overview and Summary

The appellant, Eletise Natasha Wallace, appealed against the sentence imposed by the District Court at Whanganui, seeking a reduced term of imprisonment for drug dealing and possession and dishonesty offences. The sentencing judge had imposed a term of five years and four months’ imprisonment. The appeal was heard on 19 August 2020, with B A Crowley and T W Luders representing the appellant and J Mara representing the respondent. The judgment was delivered by Dobson J on 24 August 2020. Leave was granted to extend the time for filing the notice of appeal as no objection was raised by the respondent and there was no prejudice to their position.

The legal issues in the case centred on whether the sentence imposed was manifestly excessive, and if there was any error in the sentencing analysis, particularly in relation to the consideration of Ms Wallace's addiction, rehabilitative efforts, and the impact of the sentence on her family. The court needed to determine if a lesser sentence was warranted given the personal mitigating circumstances and the evidence presented in support of the appeal.

Dobson J considered the treatment report from the Salvation Army Bridge programme, which showed that Ms Wallace abstained from methamphetamine consumption during her participation in the programme, despite using cannabis. While the report suggested a more positive rehabilitative prospect, the court found that the causal link between Ms Wallace's addiction and her offending was not sufficiently established. The court also noted that Ms Wallace's absconding for six months negated any rehabilitative progress. The impact of the sentence on her family was acknowledged by the court but not deemed sufficient to warrant a discrete discount. The appeal was dismissed as the sentence was not found to be manifestly excessive.

The final orders of the court were that the appeal was dismissed, and the sentence of five years and four months’ imprisonment, imposed by the District Court, was upheld.

Orders