Wheeler v R - [2017] NZCA 193

IN THE COURT OF APPEAL OF NEW ZEALAND

CA393/2016
[2017] NZCA 193

BETWEEN	RUTH ADELE WHEELER Appellant
AND	THE QUEEN Respondent

Hearing:	11 May 2017
Court:	Cooper, Mallon and Wylie JJ
Counsel:	N Levy for Appellant J E Mildenhall for Respondent
Judgment:	19 May 2017 at 12 pm

JUDGMENT OF THE COURT

A The application for leave to adduce further evidence is granted.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

The appellant, Ms Wheeler, pleaded guilty to three representative charges — supplying methamphetamine, possession of methamphetamine for supply and offering to supply methamphetamine. She was convicted and sentenced on 14 July 2016 to three years and eight months’ imprisonment by Judge Cooper in the District Court at Rotorua.[1]
[1]R v Wheeler [2016] NZDC 16424.
Ms Wheeler appeals the sentence. She argues that it is manifestly excessive.
Ms Wheeler also seeks leave to adduce fresh evidence in support of her appeal — namely an assessment completed by a psychologist for the ACC in August 2016. The Crown did not oppose this application and leave is granted.

Factual background

On 13 April 2015, Ms Wheeler was released from custody, having served a sentence of three years and two months’ imprisonment for selling methamphetamine, possession of methamphetamine for supply and conspiring to deal in methamphetamine.
The charges in respect of which Ms Wheeler was sentenced by Judge Cooper relate to the period between 23 July and 13 August 2015 when she was on parole for the earlier offending. She was part of a methamphetamine dealing operation run by a senior Black Power member, K. The police intercepted communications that revealed 71 separate incidences where methamphetamine had been supplied or offered for supply by Ms Wheeler.
Ms Wheeler pleaded guilty to each of the three charges on the first day of the trial.

District Court sentencing

Judge Cooper, in his sentencing notes, accepted that Ms Wheeler’s offending fell within the lower end of band two identified in R v Fatu.[2]He noted that:
(a)she had supplied methamphetamine in amounts ranging from 0.1 to 1 gram;
(b)there were numerous individual transactions;
(c)she had received an estimated 12 grams from K;
(d)some of the methamphetamine was for her own use; and
(e)she was essentially dealing to support her own addiction.

He noted, as a “stand out aggravating feature”, that Ms Wheeler had previous convictions for the very same type of offending.[3] He adopted a starting point of three years and six months’ imprisonment. He uplifted that starting point by six months given Ms Wheeler’s previous convictions and the fact that her offending occurred while she was still on parole. He gave her a reduction of four months (approximately 8.3 per cent) for her guilty pleas. As already noted, the end sentence imposed was one of three years and eight months’ imprisonment.

Analysis

[2]R v Fatu [2006] 2 NZLR 72 (CA).

[3]R v Wheeler, above n 1, at [15].

Ms Levy, for Ms Wheeler,…

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 Wheeler v R

Details

AGLC: Wheeler v R [2017] NZCA 193
Case: [2017] NZCA 193
Decision Date: 19 May 2017 at 12 pm

CaseChat Overview and Summary

Ruth Adele Wheeler appealed against the sentence imposed on her for supplying, possessing for supply, and offering to supply methamphetamine, contending that it was manifestly excessive. The Court of Appeal granted Ms Wheeler leave to present fresh evidence in the form of a psychological assessment conducted by the Accident Compensation Corporation (ACC) in August 2016, which the Crown did not oppose. Ms Wheeler had previously been convicted and imprisoned for similar offences, and had been released on parole when she committed the current offences between 23 July and 13 August 2015. The District Court Judge accepted Ms Wheeler's offending fell within the lower end of band two identified in R v Fatu, and adopted a starting point of three years and six months’ imprisonment, uplifted by six months due to Ms Wheeler’s previous convictions and the fact that her offending occurred while she was still on parole. Ms Wheeler's appeal was based on the argument that the District Court Judge failed to take into account her personal circumstances, which made a sentence of imprisonment more punitive for her. However, the Court of Appeal found that the District Court Judge had considered Ms Wheeler's personal circumstances, and that the sentence imposed was not unduly harsh. The appeal against sentence was dismissed.

Orders