The Queen v Hutchings [2006] NZCA 70 (28 April 2006)

Last Updated: 9 May 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA436/05
CA103/06

THE QUEEN



v



SUSAN SHIRLEY HUTCHINGS

Hearing: 10 April 2006

Court: Glazebrook, Williams and Ronald Young JJ

Counsel: N G Cooke for Appellant
K Raftery for Crown

Judgment: 28 April 2006

JUDGMENT OF THE COURT

The application for an extension of time to appeal against conviction is granted but the appeals against conviction and sentence are dismissed.
____________________________________________________________________

REASONS

(Given by Glazebrook J)

Introduction

[1]

On 5 October 2005, Ms Hutchings pleaded guilty to two counts of possession of cannabis for supply or sale and two counts of possession of methamphetamine for supply. On 11 November 2005, Ms Hutchings was sentenced by Lang J to three years and seven months imprisonment. Ms Hutchings appeals against that sentence and also seeks an extension of time to appeal against her conviction.

Facts

[2]	On 2 May 2004, the police went to Ms Hutchings’ house at her request after her house had been invaded by a group of masked men. Ms Hutchings admitted to the police that she had cannabis in the house and showed them 32 grams of high grade cannabis head material held in a safe.
[3]	The police invoked the statutory search powers under the Misuse of Drugs Act 1976 and searched the rest of the house. More cannabis was found, the total weight being 191.5 grams. Methamphetamine (1.86 grams) was located in two places in the house. The police also found $950 in cash as well as further evidence of drug dealing and use, such as snaplock bags, electronic scales and pipes.
[4]	On 16 May 2004, the police executed a search warrant at Ms Hutchings’ house. While the police were speaking to Ms Hutchings they noticed cannabis on a coffee table. They again invoked the statutory search powers under the Misuse of Drugs Act. This search located 38.4 grams of cannabis and 2.76 grams of methamphetamine. The second search also revealed a ledger book on the floor of the lounge containing a "tick list" of transactions, electronic scales, pipes for smoking methamphetamine and $3,450 in cash.

Sentencing remarks

[5]

The Judge considered that the lead charge in this case was the 16 May charge. He took as a starting point three years on that charge. He increased that by 18 months to take into account the totality of the offending, including that Ms Hutchings had been prepared to deal in methamphetamine on two occasions, that she was on bail on the second occasion, that there were significant amounts of cash involved, that the "tick list" showed that supply may have been to a number of people and that there were also cannabis charges.

[6]

As to mitigating factors, the Judge proceeded on the assumption that, although Ms Hutchings was initially introduced to drugs by her boarder, she later became fully involved and was prepared to continue that involvement even after her arrest on the first occasion. The Judge did take into account Ms Hutchings’ previously good character, her remorse and the fact that her "somewhat fragile and submissive personality" may have provided an explanation for her being introduced to dealing in drugs. He also gave credit for the guilty plea, although not as great a credit as would otherwise have been available had the guilty plea been entered earlier. All of those factors resulted in a discount of 20%, leaving a final sentence of three years and seven months imprisonment on the lead charge. Concurrent sentences were imposed on the other charges.

Ms Hutchings’ affidavit

[7]	Ms Hutchings has filed an affidavit, dated 28 March 2006, in support of her appeal. In that affidavit she says that she should not have pleaded guilty to the charges as the drugs concerned were not hers. She annexed and confirmed the contents of an affidavit, sworn on 1 February 2006, which accompanied a complaint about her counsel, Mr Harder, made to the Auckland District Law Society. In the February affidavit she explained that she had been represented (on legal aid) by Mr Comesky through the depositions. She had then instructed Mr Harder as a private client and had paid him $15,000, which she understood was to cover the costs of trial. Further payments were, however, required by him in the course of the preparation for trial.
[8]	Ms Hutchings says that she explained to Mr Harder that she was only guilty of possession of cannabis and methamphetamine and was not guilty of the supply charges. She says:
11.	I told Mr Harder that James [the boarder] had told me he was trying to set up a second hand business. It became apparent early on in the peace [sic] that James was not setting up a second hand shop at all. I became increasingly concerned with the number and type of people who were visiting my home address. These people were gang members and associates.
12.	I told Mr Harder that James had asked me to keep a record of some figures for him and I agreed to do this to discover what was going on. As a result of this it became apparent to me that James was dealing in methamphetamine. I kept a record of the transactions at his request.
13.	The volume of people and type, namely gang associates, that were turning up at my home address concerned me and I asked James to move from my house.
14.	I told Mr Harder that James agreed to move out of the house, provided that his mother could move in, which would allow him to move into the house his mother had just rented.
15.	Mr Harder was informed that shortly after James had moved out of my house, he still had free and frequent access to my home. I told Mr Harder the majority of James’ personal belongings were still in my house in the downstairs bedrooms.
16.	I also told Mr Harder that the drugs found in my house that resulted in my arrest in May 2004, were not for the purposes of supply. I told Mr Harder that the cannabis was mine and that the methamphetamine belonged to James. When James was with me I did smoke methamphetamine on the couple of occasions he offered it to me. A small amount of methamphetamine found in the coffee table drawer was mine.
17.	Approximately two weeks after the first home invasion, the police arrived at my home address with a search warrant. This warrant was for my computer. I told Mr Harder that they had found some marijuana and that again, they had searched the house for drugs.
18.	The police had found a bag which James had left the day before and I had stashed behind the couch until I could return it to him. This bag was found to contain methamphetamine.
[9]	She deposed that she had told Mr Harder of an "off the record" discussion she had had with a detective about the boarder’s drug dealing, although she had made it clear to the detective that she would not give evidence against the boarder as she feared reprisals.
[10]	Ms Hutchings then set out the procedural history of the matter. After describing how there had been an adjournment of the trial because Mr Harder had to travel to Canada to see his mother who was seriously ill, she described what led to her guilty plea:
34.	I did not see Mr Harder for some time after that. It would have been approximately two or three weeks after his return from Canada and his attitude towards my case had changed. He continually pressured me to plead guilty and said that if I did not, I would be found guilty at trial and receive a much harsher sentence than I would if I pleaded guilty.
35.	I reiterated to Mr Harder time and time again that I was not guilty and wanted to defend the charges, however his pressure was relentless.
36.	Throughout this whole time I was repeatedly asking Mr Harder to obtain information on my behalf from the police. I asked him to obtain information with respect to an interview with a police officer on the night of my arrest.
37.	This seemed important to me and to my defence as this officer had made comments that he was aware James had been staying at my house for a few months. Despite my continued requests to Mr Harder, I still have not received any information or documentation regarding this interview.
38.	Finally, after continued pressure by Mr Harder, coupled with the information I had requested not being forthcoming, I succumbed and on the 5th October 2005 call over, I changed my plea to guilty on the four counts I was facing.
[11]	Ms Hutchings also deals in her affidavit with certain aspects of Mr Harder’s submissions made on sentencing.

Ms Hutchings’ submissions

[12]	On behalf of Ms Hutchings, Mr Cooke submitted that Ms Hutchings has a defence to the indictment. She has consistently maintained that defence and it is in the interests of justice that she be allowed to present her defence to a jury. She pleaded guilty, in Mr Cooke’s submission, because of a mistake as to the true nature of her jeopardy and pressure from her then counsel.
[13]	As to sentence, Mr Cooke accepted that the three year starting point for the lead charge was within range and that the 18 month addition was also within range. He, however, submitted that, if Ms Hutchings had received advice to plead guilty earlier, then the discount received would have been greater.

Crown’s submissions

[14]	Mr Raftery, for the Crown, submitted that Ms Hutchings’ difficulty in appealing her conviction lies in the fact that she pleaded guilty at a time when she was represented by counsel experienced in criminal practice. While a conviction appeal can be successful in such circumstances, the test is whether there has been a miscarriage of justice. In the Crown’s submission, the matters attested to in Ms Hutchings’ affidavit did not meet this threshold.
[15]	Mr Raftery noted that Ms Hutchings asserted in her affidavit that there were disputed facts in relation to the sentencing. A disputed facts hearing had been set down for 10 October 2005 but, at the defence request, it was abandoned and sentencing went ahead on 11 November on the basis of the summary of facts.
[16]	The Crown also submitted that, even had Ms Hutchings’ guilty plea been made earlier, the 20% discount would likely have been the same, given that the guilty plea would not have been entered until all of the pre-trial applications had been disposed of.

Discussion

[17]	The Crown does not oppose Ms Hutchings’ application for an extension of time to appeal her conviction. We consider it appropriate to grant the extension given that there was an extant sentence appeal and Ms Hutchings’ proposed appeal against conviction relates to complaints against her then counsel.
[18]	In this case Ms Hutchings entered guilty pleas to the four charges. When an accused has pleaded guilty, this Court will only entertain an appeal where there is evidence of a miscarriage of justice. This Court has generally accepted that a miscarriage of justice may have occurred where the guilty plea has been induced by a wrong ruling (typically where the Judge has ruled a defence not open), where the accused did not appreciate the nature of the charge or did not intend to plead guilty to that charge or where the accused could not, in law, have been guilty of the charge. Where there has been an informed decision to plead guilty and the accused understood the merits of the position the conviction cannot be impugned – see the discussion in Adams on Criminal Law (Looseleaf 1992-) at para CA385.17
[19]	We do not consider that there has been a miscarriage of justice in this case. It appears from Ms Hutchings’ affidavit (see the relevant extracts at [10] above) that all Mr Harder did was to advise Ms Hutchings strongly that she should plead guilty. This was on the basis that her conviction was very likely and, if she went to trial, she would get no credit for a guilty plea. We do not consider this advice can be faulted.
[20]	Ms Hutchings had admitted to Mr Harder that she had played a role in her boarder’s methamphetamine activities by recording his deals – see at para 12 of her affidavit, quoted at [8] above. Mr Harder could legitimately have taken the view that her explanation as to why she undertook that role was not credible and that her role in recording the deals made her a party to the offending. Ms Hutchings also admitted to Mr Harder that she had smoked methamphetamine and that some of the methamphetamine found was hers. He could legitimately have taken the view that this would further complicate any defence.
[21]	Mr Harder would also have been fully entitled to take into account the fact that both searches occurred after the boarder had left and that a jury may well have been sceptical about the assertion that the methamphetamine, the cash and the dealing paraphernalia on both occasions (and particularly the second occasion) belonged to him. She had, despite methamphetamine allegedly belonging to the boarder having been found on the occasion of the first search, been prepared to have a bag belonging to him in the house – see para 18 of Ms Hutchings’ affidavit (at [8] above). We understand too from Mr Raftery that the bag contained correspondence addressed to Ms Hutchings which would clearly have thrown major doubt on her assertion that the bag belonged to the boarder.
[22]	In summary, Ms Hutchings pleaded guilty on the basis of competent advice. She does not assert that she did not understand that advice or that she was under any misapprehension as to the nature of the charges she was pleading to. The evidence against her was very strong and, on her own admission, she had helped the boarder record his drug deals.
[23]	As to sentence, Mr Cooke accepted (rightly we consider) that the three years plus 18 months was within the range available for the lead charge, before an allowance for mitigating factors. His alternative submission was that the advice to plead guilty should have been given earlier. There is nothing to indicate, however, that Ms Hutchings would have accepted such advice. Indeed, the fact of filing the conviction appeal would suggest that she would not have done so.

Result

[24]	Ms Hutchings’ application for extension of time to appeal against her conviction is granted but the appeal is dismissed. The sentence appeal is likewise dismissed.

Solicitors:
Crown Law Office, Wellington