Mansell v R [2011] NZCA 322 (14 July 2011)

Last Updated: 20 July 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA14/2011 [2011] NZCA 322

BETWEEN ALLAN JOSEPH MANSELL Appellant

AND THE QUEEN Respondent

Hearing: 11 July 2011

Court: Randerson, Potter and Ronald Young JJ

Counsel: No appearance by or on behalf of the Appellant J E Mildenhall for Respondent

Judgment: 14 July 2011 at 3 p.m.

JUDGMENT OF THE COURT

The application for extension of time to appeal is dismissed.

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REASONS OF THE COURT

(Given by Potter J)

Introduction

[1] Following trial by jury in the District Court at Wellington on 26 October 2010 the appellant was found guilty of a charge of possession of utensils for the purpose of the commission of an offence against the Misuse of Drugs Act 1975, namely smoking cannabis.
[2] On 6 December 2010 he was sentenced by Judge Becroft to 100 hours of community work.[1]
[3] By notice of appeal dated 11 January 2011 Mr Mansell appeals against his sentence on the ground that the length of the sentence is excessive. He also seeks extension of the time for filing the appeal stating that he lodged an appeal on 5 January 2011 but was given the wrong form.
[4] The appellant was formerly represented by Mr I D Hay who advised the Legal Services Agency on 26 May 2011 that he would not be representing Mr Mansell on the appeal. We formally grant Mr Hay leave to withdraw as counsel.
[5] Mr Mansell did not appear at the appeal hearing on Monday 11 July 2011. We are satisfied that he was notified by letter from the Registry of the date and time of the appeal hearing.

Factual background

[6] On 20 January 2010 the appellant set up a table and a camp stove, placed a small amount of cannabis on the heated stove and inhaled the smoke from the heated cannabis through a cut-up milk bottle in broad daylight next door to the front entrance of the Wellington Central Police Station. He was inevitably detected, investigated, arrested and charged, and conviction followed his jury trial.

Sentencing

[7] Judge Becroft referred to the indication he gave at the end of the trial of 100 hours of community work. He noted the Crown submission that this was an appropriate sentence and that Mr Hay, counsel for the appellant, had no significant objection to it. He also noted that the appellant has four previous convictions for possession of cannabis or cannabis related offending. He sentenced the appellant to 100 hours of community work and ordered forfeiture of all the utensils.

Evaluation

[8] The sentence imposed was clearly within the range available to the sentencing Judge. We note that of the four previous convictions for cannabis-related offending to which the Judge referred, while three of these date back some time, the most recent relates to offending in June 2009 for which the appellant was sentenced by way of a fine on 19 January 2010, on the day prior to this offending.

Result

[9] The appeal is without merit. The application for extension of time to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Mansell DC Wellington CRI-2010-085-463, 6 December 2010.