Bell v Police

[2014] NZHC 3052

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-488-000006 [2014] NZHC 3052

BETWEEN

NORMAN JOHN BELL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 December 2014
Appearances:	R Vigor-Brown for Appellant M A Jarman-Taylor for Respondent
Judgment:	2 December 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 2 December 2014 at 3.45 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Whangarei

Copy to:            R Vigor-Brown, Whangarei

BELL v NEW ZEALAND POLICE [2014] NZHC 3052 [2 December 2014]

[1]      Norman John Bell pleaded guilty to possession of a Class B controlled drug ephedrine, possession of methamphetamine and  possession of cannabis.   On 28

January 2014 Mr Bell was sentenced by Judge K B de Ridder in the District Court at Whangarei to four and a half years’ imprisonment for possession of the ephedrine, two months in respect of the cannabis, and four months in respect of the methamphetamine.   In reaching the sentence the Judge took a starting point of six years and gave an allowance of 25 per cent for the early guilty plea.

[2]      Mr Bell was a passenger in a car that was stopped on the Northern Motorway for speeding.  The police ascertained that Mr Bell had a warrant to arrest for unpaid fines.    He was arrested.   A preliminary search disclosed he had a glass methamphetamine pipe.  When searched in more detail at the police station Mr Bell was found in possession of a black package containing white powder, which was analysed and found to contain 490.1 grams of ephedrine.  He also had $20,062 in his possession.  Mr Bell also had keys to a Subaru motor vehicle on him.  The police located Mr Bell’s Subaru and on searching it found 33 grams of cannabis, four needles and syringes, a bottle labelled morphine sulphate, 92 pills or capsules consisting of nine different types of pills and several large bags containing methamphetamine. The total weight of the methamphetamine was 11.171 grams.

[3]      The summary of facts, which was accepted for the purposes of sentence, stated that the ephedrine when used to manufacture methamphetamine returned between 60 to 80 per cent depending on the manufacture. This meant that 490 grams of ephedrine would return between 300 to 400 grams of methamphetamine.

[4]      Mr Bell filed his own appeal.  When the matter was before Woolford J on 7

August  2014  the AVL  link  by  which  Mr  Bell  was  to  present  his  appeal  was unavailable for technical reasons.  The appeal had to be adjourned.  The Judge noted that Mr Bell challenged counsel’s representation in the District Court, drew  Mr Bell’s attention to r 8.7 of the Criminal Procedure Rules 2012 and the need to waive privilege and made directions for the hearing of the appeal.

[5]      In his affidavit Mr Bell complained at the reference in the summary of facts to the conversion rate of 60 – 80 per cent, said Mr Fairley had only seen him briefly and had not advanced remorse on his behalf.

[6]      After the appellant signed a waiver of privilege on 26 August 2014 the Crown arranged for Mr Fairley to file an affidavit.   Mr Fairley was able to confirm the number of attendances and the time spent with Mr Bell from his time records.  He spent a proper amount of time with Mr Bell.   As to the complaint regarding the acceptance of the summary of facts Mr Bell actually signed and dated the agreed summary of facts recording the conversion rate.

[7]      Next, there is no evidence that Mr Bell would have been entitled to any further discount for remorse in any event.  The pre-sentence report referred to him having written a letter to Higher Ground and his plans to become involved with the church.  Mr Fairley’s written sentencing submissions referred to Mr Bell’s desire to do something about his addiction problem.  An additional discount for remorse over and above the discount for the guilty plea will only be available in circumstances where the remorse is truly exceptional.  None of that is apparent in the present case.

[8]      Mr Vigor-Brown has now been assigned as counsel for Mr Bell.  The Court directed Mr Bell be produced before it in Whangarei on 2 December 2014 for the purpose of the appeal hearing.   Mr Vigor-Brown, however, advised that he was instructed by Mr Bell that Mr Bell did not wish to be moved from the Tongariro/Rangipo Prison where he is currently situated to a prison near Whangarei due to medical reasons.  Also Mr Vigor-Brown noted legal aid would not fund his travel  expenses  to  and  from Whangarei.    For  that  reason  at  Mr Vigor-Brown’s request the appeal has been conducted by AVL link.   However, again there were issues with the AVL link.  The appeal proceeded by way of telephone link.  I thank Mr Vigor-Brown for his attendance on behalf of Mr Bell.

[9]      In addition to addressing the Court by way of the telephone link Mr Vigor- Brown had filed detailed written submissions.  Mr Vigor-Brown does not pursue the issue of the appellant’s former counsel competence on the appeal.  He was right not to do so. There was no merit in it.

[10]     Mr Vigor-Brown identified the issue on the appeal was whether the starting point taken for the possession of supply of the ephedrine of six years was too high so that, even taking account of the discount for the guilty plea, the overall sentence was manifestly excessive.

[11]     Mr Vigor-Brown notes that in an affidavit the Crown filed for the purposes of the appeal, Mr Bogun, a forensic scientist, says that the conversion rate of ephedrine to methamphetamine is 50 to 75 per cent.  Applying that conversion rate to the 490 grams of ephedrine found on Mr Bell would lead to between 245 to 367 grams of methamphetamine.  Mr Vigor-Brown submitted the Court should take the lower of

those two figures and that the appropriate band in R v Fatu1  would be band 2,

namely between three years to nine years imprisonment as a start point.  Mr Vigor- Brown also referred to the case of R v Wang.2     In that case the Court of Appeal seemed to take a conversion rate of between 50 to 70 per cent.

[12]     In short, as Mr Vigor-Brown advanced it, the appellant’s case is predicated fairly and  squarely on  R  v  Wallace3   on  the basis  this  was  a case of  a smaller operation.  He submits that a starting point of four and a half years’ imprisonment would be “fair and appropriate” and acknowledged an uplift of six months for the other  offending  and  three  months  for  Mr  Bell’s  previous  record.    After  taking account of the  guilty plea allowance of 25 per cent  that would lead to an end sentence of 47 months, or three years, 11 months’ imprisonment.

[13]     The Court must allow the appeal if there is an error in the sentence and a different sentence should be imposed.  Otherwise, it must dismiss the appeal.  The issue is whether the sentence imposed of four and a half years’ imprisonment is in error as manifestly unjust. As noted, the focus is on the starting point.

[14]     In R v Wang4  the Court of Appeal considered a Solicitor-General appeal against a sentence of four years, six months’ imprisonment on a charge of possessing

pseudoephedrine  for  the  purpose of  supply.   The Court  considered  that,  having

1      R v Fatu [2006] 2 NZLR 72.

2      R v Wang [2014] NZCA 409.

3      R v Wallace [1999] 3 NZLR 159.

4      R v Wang [2014] NZCA 409.

regard to Mr Wang’s involvement in the offending a starting point of eight years’ imprisonment should have been adopted.   Further the one year allowance for Mr Wang’s previous good character was contrary to principle.  Mr Wang’s offending was much more serious then than Mr Bell’s.  However, sentencing is not a mathematical exercise.  It is an exercise of judgment.

[15]     Importantly in the course of the decision the Court went on to state:5

The decision of this Court  in  R v  Wallace is the leading Class B drug offending.  It is convenient to set out the three categories of offending identified:

“[30]     The  cases  reflect  a  considerable range  in  the  seriousness  of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for the principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14- year maximum penalty will have little direct relevance to the total offending.

[31]     Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range of five to eight years.

[32]     For  smaller  operations,  but  representing  commercial  dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise. ”

[22]      Plainly circumstances will vary from case to case and there is a need for flexibility in the application of these sentencing guidelines.   This is particularly so where the bands are expressed with epithet-based descriptors rather than quantities as in R v Fatu. Quite apart from the nature and size of the transaction, the role of the offender will be an important consideration.

In the context of Class B controlled drugs this Court said in R v Wallace, on the topic of roles:

“There is little difference to be drawn between manufacturers and importers. Both introduce the drug to the market. Their interdependence with wholesale distributors means that the true instigator might fill any of these roles or indeed might stand remote simply manipulating others. Instigators, masterminds, prime-movers or controllers are at the top level and when convicted must attract sentences at the upper end of the relevant range. Participants in distribution at lower levels should be dealt with proportionately to their culpability as assessed by the sentence. ”

5      At [21]–[22] (footnotes omitted).

[16]     I am not able to accept Mr Vigor-Brown’s submission that the quantity of the

ephedrine in this case puts Mr Bell in the category of a “smaller operation”.

[17]     In the present case I consider there are two relevant features of the offending which must influence the offending for Mr Bell.  First the significant quantity of the ephedrine found in his possession.   Even taking the lower conversion figures that could lead to the production of 245 g of methamphetamine, a significant amount. Possession of that amount would support a start point approaching the higher end of band 2 in Fatu.

[18]     Next, the cash located with Mr Bell of just over $20,000 not only supports the inference of substantial commerciality but also the fact he was entrusted with sums of that amount reflects his role in the offending.

[19]     For those reasons, having regard to the bands in Wallace Mr Bell’s offending could be properly categorised as commercial drug dealing on a substantial scale, although perhaps not involving massive quantities of drugs or prolonged dealing. That would support a starting point in the range of five to eight years.  The six years taken by the Judge for a starting point was open to him.

[20]     Properly no challenge is taken with the discounts or further allowances.   In the circumstances of this case, given the strength of the Crown case, the discount of

25 per cent for the guilty plea could be seen as generous.

[21]     It follows that the end sentence imposed on Mr Bell of four and a half years’ imprisonment (without a minimum period) for the totality of the offending was available to the Judge.  There is no error.  It is not a manifestly excessive sentence.

The appeal is dismissed.

Venning J