Kidman v R Ca

• Jurisdiction: New Zealand
• Judge: Arnold J
• Judgment Date: 10 March 2011
• Neutral Citation: [2011] NZCA 62
• Docket Number: CA576/2010
• Court: Court of Appeal
• Date: 10 March 2011

Between

Christine Lee Kidman

Appellant

and

The Queen

Respondent

[2011] NZCA 62

Court:

Arnold, Gendall and Allan JJ

CA576/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against sentence of home detention — appellant discharged on one count of receiving cannabis and pleaded guilty to possession of cannabis for supply, selling and offering to sell cannabis — appellant been remanded in custody for the six months prior to trial — sentencing Judge neglected to take time spent in custody into account when sentencing the appellant to home detention — whether time served on remand where defendant was electronically monitored should have been taken into account in the circumstances and, if so, how.

Counsel:

B J Hunt for Appellant

K Laurenson for Respondent

• A The appeal is allowed.

• B The sentence of six months home detention imposed at the second stage of the appellant's sentencing is quashed. The matter is remitted to the District Court for reconsideration in light of this judgment. The appellant will remain on bail in the meantime.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Arnold J)

Introduction

1 The appellant faced two counts of possession of cannabis for supply, three counts for selling cannabis, one count of offering to sell cannabis and one count of receiving. She was discharged on the receiving count under s 347 of the Crimes Act 1961 and entered guilty pleas in relation to the drug offending. Judge Barry sentenced her to home detention. In imposing sentence, the Judge neglected to take account of the fact that the appellant had been remanded in custody for approximately six months prior to trial. The issue on the present appeal concerns the means by which the time served on remand should be taken into account in this context.

Background

2 The background in relation to the appellant's drug offending is as follows. On 10 March 2009 the police executed a search warrant at the appellant's house. They found eight cannabis foils in her room, together with $240 cash, made up of $10 and $20 notes. That gave rise to one charge of possession of cannabis for sale and one charge of sale of cannabis.

3 On 30 July 2009 the police executed a further search warrant at the appellant's address. In a chest of drawers by the appellant's bed the police found a dried cannabis plant head. In an adjoining room they found 30 tinnies hidden in a compartment at the bottom of a dehumidifier. They found a further eight tinfoil packages of cannabis in the pocket of a jacket hanging in the wardrobe. In another room they found 25 tinfoil packages together with $300 in cash. As a consequence the appellant was charged with selling cannabis and possessing cannabis for sale.

4 Finally, on 14 September 2009, an undercover police officer went to the appellant's house and knocked on the door. The officer asked the appellant if she could “score” and the appellant sold her two cannabis tinnies. On 30 October 2009, another undercover officer visited the address and asked if she could score. The appellant said that she was out of supplies but was expecting more later in the day. She told the officer that she should come back then. As a consequence of these visits the appellant was charged with selling cannabis and offering to sell cannabis.

Sentencing

5 To understand the issues in this appeal it is necessary to understand the sequence followed in relation to the sentencing. On 15 March 2010 the appellant sought a sentencing indication. Judge Barry indicated a starting point of two and a half years imprisonment. 1 This was on the basis that the offending fell within category 2 of R v Terewi, 2 that is, it was low level commercial dealing. The Judge gave a generous credit for the appellant's guilty pleas, which led to an end sentence of 22 months imprisonment.

6 Judge Barry acknowledged that this opened up the possibility of a sentence of home detention. He said: 3

Whether or not such a sentence would be appropriate is beyond the scope of this indication and would be grounded in the information from a probation report and appendices considering [the] suitability of nominated addresses, if any, consents of house-holders and a further consideration of the propriety of entering into such a sentence for such offending. While I accept that there is authority suggesting it could be inappropriate, where offending arises from the nominated place of detention, I would not rule it out unilaterally and neither would I intend to give any indication that such could be the outcome after an acceptance of any indication.

7 Following this, on 11 May 2010, Judge Barry sentenced the appellant to four months two weeks home detention on four of the seven counts. 4 Sentencing on the remaining two counts was adjourned so that the appellant could commence a rehabilitation programme and come back before the Court for sentence after that, which would enable the Judge to assess the appellant's progress. In respect of the four counts, the Judge took a starting point of 12 months imprisonment and then reduced it by 25 per cent for the appellant's guilty pleas, which left a sentence of nine months imprisonment. Judge Barry then converted that to four and a half months home detention.

8 On 16 August 2010, having completed the four and a half months home detention, the appellant returned to Court for sentencing on the remaining two counts. 5 Judge Barry considered that the appellant was making progress in her rehabilitation. He took a starting point of 18 months, reduced that to 13 months for the guilty plea, rounded that down to 12 months and then imposed six months home detention. This was cumulative, so that the total term of home detention was ten and a half months.

9 On 29 September 2010 the appellant's counsel informed Judge Barry that he had failed to take into account the time that the appellant had served in custody prior to trial. The Judge issued a minute in which he indicated that he would have taken time served into account had it been brought to his attention and would have reduced the second sentence of home detention to four and...