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Fearnley v R [2016] NZHC 2395 (7 October 2016)

Last Updated: 12 October 2016


IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY



CRI-2016-442-0015 [2016] NZHC 2395

BETWEEN
NICOLE ASHLEY FEARNLEY
Appellant
AND
THE QUEEN Respondent


Hearing:
4 October 2016
Counsel:
E J Ridell for appellant
J R Crawford for respondent
Judgment:
7 October 2016




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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