Carroll v R
[2012] NZCA 328
•25 July 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA866/2011 [2012] NZCA 328 |
| BETWEEN ELIZABETH SHIRLEY CARROLL |
| AND THE QUEEN |
| Hearing: 2 July 2012 |
| Court: Wild, Heath and Keane JJ |
| Counsel: N Levy for Appellant |
| Judgment: 25 July 2012 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal, which is against both conviction and sentence, is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
Ms Carroll appeals both against her conviction and her sentence. In a trial in the Wellington District Court in August 2011 the jury found Ms Carroll guilty of one count of possession of the Class A controlled drug methamphetamine for supply, and one count of possession of the Class C controlled drug cannabis for sale. On 7 October last Judge Susan Thomas sentenced Ms Carroll to three and a half years’ imprisonment.[1]
[1] R v Carroll DC Wellington CRI-2009-085-8754, 7 October 2011.
Ms Carroll argued her conviction appeal herself. Her single point was that the evidence of the drugs found in her possession when her belongings were searched ought to have been ruled inadmissible because the search was unlawful.
Ms Levy argued the appeal against sentence. She advanced three grounds:
(a)the sentence was manifestly excessive, because the Judge’s sentencing starting point of four years’ imprisonment was too high;
(b)the six month discount allowed by the Judge for personal circumstances was insufficient; and/or
(c)disparity with a sentence imposed by the same Judge in an unrelated case about three weeks later.
Factual background
The appellant was travelling back in her car from Auckland to Wellington on the night of 30 June 2008. She had gone to Auckland to visit the grave of her partner who died in January 2008, and to visit his family. Her travelling companion drove off in her car leaving her stranded at a service station at Waiouru. He headed back the way they had come, and shortly afterwards crashed the car on the Desert Road.
The appellant’s handbag and luggage were recovered from the car by the Taihape police at the crash scene, looked at only superficially, and placed in safe custody. When she sought to uplift her belongings the following day, the appellant was told that she would need to speak to the police officer in charge. She took no further steps to recover her belongings which remained in police custody.
Some six months later, in January 2009, the Taihape Police received a request from a detective in the Wellington Police again to search the personal belongings that had been taken from the crashed car. The information that prompted this request apparently came from a Mr Rimine[2] and was seemingly in relation to the appellant’s travelling companion, a Mr Bates. On the strength of this information, the Taihape police searched the appellant’s belongings. They found approximately eight grams of methamphetamine in her handbag, packaged in point bags along with four cellphones containing text messages consistent with drug dealing. In the appellant’s other luggage the police found the cannabis, numerous snaplock bags, a set of digital scales and other drug paraphernalia such as straws and scoops for measuring the drugs. In her wallet there was $490, mainly in $20 notes.
Appeal against conviction
[2] This is the Mr Rimine whose sentence is cited in fn 12 at [32] and following.
As we mentioned, Ms Carroll challenged her conviction on the basis that the evidence of the finding of drugs in her belongings should have been ruled out. She acknowledged that this Court had, pre-trial, upheld a ruling of Judge Barry ruling the evidence admissible.[3]
[3]This Court’s ruling is Carroll v R [2011] NZCA 174. The earlier ruling of Judge Barry was R v Carroll DC Wellington CRI-2009-085-8754, 6 October 2010.
Ms Carroll’s point was that the Supreme Court’s subsequent decision in Hamed v R[4] rendered this Court’s earlier ruling incorrect. Ms Carroll did not explain why, or otherwise amplify that submission.
[4] Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.
We are not aware of anything in the five separate judgments delivered in Hamed that impugns this Court’s earlier ruling on the admissibility of the drugs found in the appellant’s possession. The Crown accepted that the January 2009 search of the appellant’s belongings was unlawful. This Court’s decision upheld the balancing exercise undertaken by Judge Barry pursuant to s 30 of the Evidence Act 2006. Hamed does not require a reopening of that s 30 analysis.
We dismiss the appeal against conviction.
Appeal against sentence
Sentencing starting point too high?
On a totality basis, the Judge considered a sentencing starting point of “four years appropriate”.[5]
[5] At [22] of sentencing notes.
The total quantity of methamphetamine found in the appellant’s belongings was 7.87 grams. So the Judge correctly placed the methamphetamine offending in R v Fatu[6] band 2, covering possession of five to 250 grams and sentencing starting points in the range three to nine years’ imprisonment.
[6] R v Fatu [2006] 2 NZLR 72 (CA).
143 grams of cannabis was also found in the appellant’s belongings. Again, the Judge correctly placed that in category 2 of R v Terewi.[7]That category covers possession of cannabis for small scale commercial purposes with sentencing starting points of two to four years.
[7] R v Terewi [1999] 3 NZLR 62 (CA).
In no way can the Judge’s total sentencing starting point of approximately four years’ imprisonment be said to be excessive. On the contrary, we regard it as exactly right.
We reject Ms Levy’s submission that the Judge erred, when fixing her sentencing starting point, in not allowing that any of the methamphetamine could have been for the appellant’s personal use. The Judge specifically referred to Mr Tennet’s submission for the appellant at sentencing that “the drugs were for [Ms Carroll’s] personal use”. The Judge pointed out that the appellant had not run her defence on that basis, so there was no evidence before the jury to that effect.[8] Earlier in her sentencing remarks, the Judge had summarised the alcohol and drug assessment as containing statements by the appellant that her use “varied hugely but [she] did use it to help manage [her] grief” although her use “has reduced markedly over the last couple of years”.[9]
[8] At [15] of sentencing notes.
[9] At [5] of sentencing notes.
There is nothing in this first ground of appeal, which was not at the forefront of Ms Levy’s submissions.
Inadequate allowance for personal circumstances
Judge Thomas had the following materials when she sentenced the appellant:
(a)an assessment of the appellant for alcohol and drugs dated 10 September 2011, prepared by Te Hautai Consultancy;
(b)a full pre-sentence report dated 5 October 2011;
(c)a letter from the appellant’s doctor dated 5 October 2011;
(d)a letter from the appellant’s employer also dated 5 October 2011;
(e)references from the appellant’s two daughters dated 29 September and 7 October 2011; and
(f)a reference from a longstanding friend of the appellant (undated).
Ms Levy urged on us the picture that emerged from these materials. It was of a 61 year old woman appearing for the first time in Court. She had raised three children, all now adult and living overseas. From her two daughters there were highly supportive and complimentary references. There was an equally supportive reference from a woman who had been a close friend of the appellant for some 30 years.
These three people all recounted noticing a fundamental change in the appellant from around the time her partner had died in January 2008. Her eldest daughter put it succinctly: “… it all went downhill from there”.
Her youngest daughter explained:
I first noticed changes to her character not long before her partner passed away in January 2008. First she stopped contact with her family, and then she decided to sell our family home which she had fought tooth and nail to keep over the years. These changes really became apparent after my father’s funeral in June 2008 and I realised then how seriously my mother needed help. We consulted various drug advisory [groups] but those that we spoke to said that it was up to the individual to admit that they have a problem and [seek] help. I honestly felt that not only did I lose my father that year but my mother as well. My suspicion about [her] condition was confirmed when I discovered that she’d managed to spend all the money (approximately $200K) that she had made on the sale of our family home in 8-10 months.
Her longstanding friend wrote of feeling “a real sense of desperation” when, after not hearing from the appellant for about two years, she spoke to her and the appellant told her that since her partner’s death “she did not know what to do with her life and that life was not worth living anymore”.
The appellant’s doctor of 20 years opined:
In retrospect I think that Elizabeth has likely been depressed since the trauma of losing her partner. She generally presents as a private person and it has taken time for her to be able to express her feelings of grief and loss.
The spokesperson of her employer, a national NGO, stated:
In the last year, she has gradually disclosed to the full extent her drug use, and has sought to overcome this independent of any formal programme. This is remarkable. Her behaviour has reflected a marked improvement, and we have not witnessed any episodes that would indicate she was involved in drug use any longer. She has also given up smoking cigarettes.
It appears that she is deeply ashamed of what has happened in respect to these charges, and has the support of her family.
These are all positive endorsements of the appellant, or at least are supportive of her. In her sentencing remarks the Judge referred to each of these references, in a way which we consider was both perceptive and fair.[10]
[10]The Judge’s sentencing remarks [9]–[13] cover, in turn, the daughters’ references, the doctor’s letter, the employer’s letter and, lastly, the friend’s reference.
Perhaps less helpful to the appellant were the pre-sentence report and the assessment from the clinician at the Te Hautai Consultancy. Points made in the pre-sentence report were:
(a)The Report Writer spoke with Ms [Carroll’s] Employer and her eldest daughter. They spoke of how “out of character” the offending appeared to be for Ms [Carroll]. Both parties, whilst accepting that Ms Carroll chose to purchase and use a Class A drug on a regular basis over a significant period of time, also spoke of the influence they believe the death of her partner had on the choices Ms [Carroll] made. Whilst this may have been a valid component in Ms [Carroll’s] decision to use illegal substances after the death of her partner in 2008, it is noted that she first used Methamphetamine in 2003 and again in 2005, for significant periods of time.
(b)Ms [Carroll] was assessed using departmental tools which (through self reporting) identified she does not have a harmful pattern of drinking or use of illegal drugs.
(c)It is considered necessary for [Ms Carroll] to engage in appropriate interventions to address her lengthy use of illegal drugs and to challenge her belief that purchasing and using illegal drugs such as Methamphetamine is acceptable.
(d)Ms [Carroll] is assessed as being at medium risk of reoffending …
The drug assessment included the following:
(a)Ms Carroll acknowledged she was selling the methamphetamine to help support her own habit. … There is also the clear connection between her substance use and offending behaviour. …
(b)Ms Carroll acknowledged she had difficulties with seeking the support of others to assist her with her problems, and having used methamphetamine to alleviate her emotional pain. Her maladaptive coping strategies and peer associations were contributing factors in her continued use of methamphetamine; they placed her at further risk of this continuing.
(c)Ms Carroll said she would like to address her personal issues and abstain from future methamphetamine use. …
The Judge’s sentencing remarks also captured the essence of the pre-sentence report and drug assessment, noting that the former recommended imprisonment given the seriousness of the offending.
In fixing her sentencing starting point of four years’ imprisonment, the Judge noted the market values of the methamphetamine (between $8,000 to $10,000) and the cannabis (somewhere around $1,000). She added:
[21] … There was the text messaging, suggesting your involvement in supply and of course the other items found in your possession which are evidence of commercial dealing in drugs, that is the empty and used point bags, the scales, the straws and plastic scoops, the cellphones, the torch burner and the glass pestles.
Then the Judge dealt with the mitigating factors in this way:
[23] The mitigating factors relevant to you are your previous good character. You have no criminal convictions. I take into account the references submitted on your behalf today. I know that you struggled with the loss of your partner but I do not assess the personal circumstances associated with that to fall within the category of being “so overwhelming” in terms of Jarden.[11] I give you a reduction in the starting point of six months to reflect mitigating factors, taking it to an end sentence of three years and six months’ imprisonment.
[11] R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
Had personal grief and resulting depression tipped the appellant into methamphetamine use, and into selling methamphetamine to support that use, for the first time in 2008, then the discount of one year contended for by Ms Levy may have been appropriate. But that was not the position. The salient points which, in combination, rule out a discount more generous than the six months allowed by the Judge are these:
(a)The appellant had been a regular methamphetamine user from 2003. That is, from the time her relationship with her partner began.
(b)Yet the appellant defended the charges on the basis that the drugs were not in her possession, but had been planted in her belongings by Mr Bates.
(c)At sentence her counsel (Mr Tennet) submitted to the Judge that the drugs were for the appellant’s personal use.
(d)Yet, as we have noted, the appellant had acknowledged to the clinician who assessed her for drug addiction that she was selling methamphetamine to help support her own habit.
Having given this ground of appeal anxious consideration, we find it is not made out and dismiss it.
Disparity with unrelated sentence?
The unrelated sentence relied upon by Ms Levy was imposed by Judge Thomas about three weeks later on a Mr Rimine.[12] Mr Rimine and his offending are essentially unrelated. The connections are: sentence imposed about three weeks later; same sentencing Judge; essentially the same offending; drug dependence as a result of death of a partner also advanced in mitigation. As we pointed out in [6] above, it also appears that it was information supplied by Mr Rimine that caused the police to make the January 2009 search of the appellant’s belongings. That, at least, is the appellant’s belief.
[12] R v Rimine DC Wellington CRI-2009-032-4901, 28 October 2011.
Ms Preston accepted that a disparity argument could be based on similar offending by an unrelated offender: R v Wimmer.[13]
[13] R v Wimmer CA408/90, 7 February 1991.
The test for intervention on the ground of a sentencing disparity is well established. The difference has to be so gross and unjustifiable that it will “tend to bring the administration of justice into disrepute: R v Lawson.[14]
[14] R v Lawson [1982] 2 NZLR 219 at 223.
Mr Rimine was found in possession of 18.2 grams of methamphetamine of about the same purity as the present appellant. In short, a little over twice the quantity Ms Carroll had. Although he had pleaded guilty also to a charge of supplying methamphetamine, the Crown did not seek any sentencing increase for that additional charge. That is unusual, but reflected that the Crown had little or no evidence of actual sale. As with the present appellant, Mr Rimine possessed plenty of drug dealing paraphernalia. Whereas the present appellant had $490 in cash, Mr Rimine had $39,000. But Mr Rimine’s claim that that was part of a larger sum he had received from legitimate business was put aside by Judge Thomas to be addressed on another day.
In both cases the Judge’s sentencing starting point on a totality basis was four years’ imprisonment. For Mr Rimine, that was all for the methamphetamine. For the present appellant an unquantified part was for the cannabis.
The present appellant had a clean criminal record. Mr Rimine did not, but he did not have any previous convictions for drug dealing. Both offenders got slight discounts for personal circumstances. In Mr Rimine’s case it seemed to be largely for his very late (on the morning of trial) guilty plea.
We reiterate that this ground of appeal must point up a gross disparity. Ms Preston is right to submit that minute dissection of the component parts of the sentences being compared is inappropriate.
Having made a broad comparison of the present appellant’s sentence with that imposed on Mr Rimine, we conclude that the Lawson test is not met. We also dismiss this ground of appeal.
Result
None of the three grounds of appeal has succeeded. The appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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