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High Court of New Zealand Decisions |
Last Updated: 12 October 2016
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2016-442-0015 [2016] NZHC 2395
BETWEEN
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NICOLE ASHLEY FEARNLEY
Appellant
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AND
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THE QUEEN Respondent
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Hearing:
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4 October 2016
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Counsel:
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E J Ridell for appellant
J R Crawford for respondent
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Judgment:
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7 October 2016
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RESERVED JUDGMENT OF DOBSON J
[1] On 15 June 2016, following a sentence indication, the
appellant (Ms Fearnley) pleaded guilty to one representative
charge of
offering to supply cannabis and one charge of being in possession of cannabis
resin. The sentence indication specified
that an end sentence of 20
months’ imprisonment would be imposed.
[2] A pre-sentence report was sought, which indicated that Ms Fearnley
would be a good candidate for a sentence of home detention
and that there was a
suitable address. On that basis, she was sentenced by Judge Ruth to 10
months’ home detention on the
offering to supply charge, and one
month’s home detention on the possession of cannabis resin charge, both
sentences to be
served concurrently.1
[3] Ms Fearnley has since received legal advice from a new lawyer. She has brought this appeal against sentence on the basis that she was not advised of the
possibility of disputing the Police summary of facts prior to
sentencing. She now
1 R v Fearnley [2016] NZDC 11016.
wishes to cast her offending as less serious than was suggested by the
summary of facts, with the result that the end sentence is
arguably manifestly
excessive.
The sentence indication
[4] Judge Ruth started by recounting the facts of the offending. Ms
Fearnley was using a mobile phone to conduct a drug-dealing
business, contacting
buyers and arranging for the sales of cannabis over a two month period. A code
was often used between Ms Fearnley
and buyers, but a price and an amount was
often decided by text. The Police interpreted her mobile phone records as
indicating that
Ms Fearnley had offered to supply cannabis on 32 occasions
during the two month period of the representative charge.
[5] On 15 January 2016, a search warrant was executed at Ms
Fearnley’s house
and cannabis resin was found.
[6] The Judge noted that Ms Fearnley had a few previous convictions for
driving matters and accessing a computer for a dishonest
purpose. However,
there was no relevant criminal history. Ms Fearnley is 21 years
old.
[7] The Judge then recorded that both the Crown and defence submissions
placed the offending in band two of R v Terewi,2 which
includes small-scale commercial dealing. The Crown submitted that the offending
falls in the middle of that band, attracting
a starting point of two to two and
a half years’ imprisonment. Counsel for Ms Fearnley submitted that the
starting point should
be closer to two years.
[8] In setting the starting point at two years and three months, the
Judge took into account as aggravating features the number
of offers that were
made, the fact that Ms Fearnley had dealt with more than one grade of drug
(cannabis and resin), that there was
some commerciality (albeit at a relatively
low level) and that the offending was pre-meditated.
[9] Finally, the Judge reduced the sentence by 25 per cent to take into
account
Ms Fearnley’s early guilty plea.
2 R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).
Leave to appeal out of time
[10] The appeal was filed out of time. Ms Fearnley says this is because
there was some delay in instructing a new lawyer for
the appeal. The Crown does
not oppose a grant of leave in this case.
[11] The delay is not significant. I therefore grant leave for the
appeal to be filed out of time.
Contested facts
[12] In an affidavit in support of her appeal, Ms Fearnley deposed that
she did not consider a copy of the summary of facts
before argument on
the sentencing indication. She thinks that the copy she saw did not have
amounts endorsed, which represented
the interpretation by the Police of the
quantities of cannabis involved in the text communications that were reproduced.
The summary
of facts set out intercepted text communications from 10 examples of
the 32 occasions on which the Police interpreted her mobile
phone communications
as involving offers to supply cannabis. Beside each set of text exchanges, the
preparer of the summary of facts
noted the amount of cannabis, and the number of
the occasion (between one and 32) the Police treated the exchanges as related
to.
[13] The Crown did not dispute Ms Fearnley’s claim that a
version of the summary of facts had been produced without
those amounts
endorsed, but nor was there any acknowledgement that a version other than that
provided to the Judge at the time of
the sentencing indication had been
prepared.
[14] Ms Fearnley also deposed that she was not made aware of the opportunity to dispute the Police summary of facts for the purpose of sentencing. She now denies that she dealt in ounces of cannabis, whereas the Police’s interpretation of three text exchanges set out in the summary of facts was that they related to transactions for
28 grams (an ounce) of cannabis. Ms Fearnley says that those texts were actually references to multiple amounts of cannabis worth $50 (three grams). Ms Fearnley does accept that she discussed buying and sharing an ounce with others.
[15] Ms Riddell’s written submissions in support of the appeal
referred to Saggers v R.3 In that case, the Court of Appeal
concluded that the facts in issue could not be resolved in that Court, and the
matter was sent back
to the High Court for a disputed facts hearing and
resentencing. However, Ms Riddell did not raise that prospect in oral argument,
and rather urged that I allow Ms Fearnley’s appeal on the basis that a
more benign view should be taken of the seriousness
of the
offending.
[16] The Crown submits that these disputed facts would make no difference to Ms Fearnley’s sentence. The summary of facts includes 10 examples of offers to supply, whereas the representative charge alleged 32 occasions. Excluding any references to ounces in the summary of facts, and taking only the amounts in the
10 examples, Ms Fearnley offered to supply approximately 60 grams of
cannabis, sold in amounts of one to three grams. The
largest
transaction suggested Ms Fearnley was “going halves” in $380 (one
ounce).
[17] Ms Riddell also criticised a Police calculation that the scale of
dealing in the instanced transactions amounted to $1,130,
if it was inferred
that comprised the profit to Ms Fearnley. Ms Riddell ventured the view that
after accounting for the cost of
purchasing the cannabis, the profit content
would be approximately $400.
Sentence appeal
[18] The appeal is governed by s 250 of the Criminal Procedure Act 2011,
which provides that I must allow the appeal if I am satisfied
that there was an
error in the sentence imposed on the convictions, and that a different
sentence should be imposed.
[19] The Court of Appeal confirmed in Tutakangahau v R that the
appellate court is concerned with whether a different sentence ought to be
imposed or whether the end sentence is within
the range of available
sentences.4
[20] It was submitted for Ms Fearnley that a starting point of 18 to
21 months was
3 Saggers v R [2012] NZCA 591.
4 Tutakangahau v R [2016] NZCA 279 at [26]–[36].
more appropriate in this case, comparing her offending to that in R v
Rihari.5 In that case, Ms Rihari was found in possession of six
tinnies, which she admitted were made from four cannabis plants growing behind
her house. She told the Police that she sold $400 to $500 worth of cannabis
over the previous two months. A 12 month starting point
was adopted.
[21] Ms Fearnley also relies on R v Dudley, where R v Rihari
and a series of similar cases were considered.6 The range of
starting points in those cases was between 12 months and two and a half years.
The offending in those cases was similar
in many respects to the offending in
the present case: they tended to involve cannabis sold in small amounts (usually
tinnies).
[22] The Crown refers to R v Morunga, R v Heremaia, R v
Paewhaenua and R v
Kite.7 In Morunga, the defendant was found with
18 tinnies totalling just under
19 grams of cannabis. A starting point of 18 months’ imprisonment was
adopted. In Heremaia, the defendant sold four tinnies to undercover
Police on two occasions. A starting point of two years’ imprisonment was
adopted.
A starting point of two years was also adopted in Paewhaenua,
where the defendant was found with nine tinnies and cash and admitted to selling
tinnies regularly over a month. In R v Kite, the defendant was involved
in selling tinnies over a couple of months and 30 grams was found at his
address. A 20 month starting
point was adopted.
[23] Even without dealing in ounces of cannabis, I am satisfied that the Judge placed Ms Fearnley’s offending within a range that was clearly available to him, by comparison with other sentencings I was referred to. I do not accept Ms Fearnley’s submission that the offending is similar to that in Rihari, where $400 to $500 worth of cannabis was sold. Ms Fearnley has not contested the reconstruction that she offered to supply some 60 grams of cannabis over two months. That takes into account only some of the admitted offending. The Judge accepted that the level of
commerciality was low, but the starting point of two years and three
months is
5 R v Rihari HC Whangarei SO5102, 23 September 2005.
6 R v Dudley HC Wellington CRI-2011-019-215, 31 May 2011.
7 R v Morunga [2013] NZHC 1935; R v Heremaia HC Whangarei CRI-2008-088-4116, 25 March
2009; R v Paewhaenua HC Whangarei CRI-2006-088-4670, 30 March 2007 and R v Kite
HC Auckland CRI-2006-092-17251, 10 August 2007.
consistent with that level of offending. In particular, Ms Fearnley’s
offending was at a similar level to that in R v Paki,8 which
is cited in Dudley. There, the Court of Appeal upheld a starting point
of two years and two months for dealing small amounts of cannabis over
a
six month period. Ms Paki was found to be in possession of 15 tinnies,
a small amount of cannabis material, some money
and a tick list.
[24] The starting point was not outside the range available to the Judge,
even taking into account that Ms Fearnley may not have
dealt in ounces of
cannabis. For that reason, I am satisfied that the sentence imposed was not
manifestly excessive and, whilst
stern, there is no scope for finding that an
error occurred.
[25] The appeal is dismissed.
Dobson J
Solicitors/Counsel:
E J Riddell, Nelson for appellant
Crown Solicitor, Nelson for
respondent
8 R v Paki CA165/05, 5 September 2005.
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