Conway v The Queen

[2005] NZCA 58

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 275/04

THE QUEEN

v

DANIEL PAUL CONWAY

Hearing:17 February 2005

Court:Chambers, Williams and Salmon JJ

Counsel:P S Neutze for Appellant

M T Davies for Crown

Judgment:23 March 2005 

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

REASONS

(Given by Williams J)

Issue

[1]       On 1 June 2004 Harrison J sentenced the appellant, Mr Conway, to 2½ years imprisonment following his pleading guilty in the District Court to one charge of possessing the Class A controlled drug, methamphetamine, for the purpose of supply.

[2]       He now appeals to this Court on the basis the sentence is manifestly excessive.

Facts

[3]       The summary of facts filed in the District Court and transferred to the High Court when Mr Conway was remitted for sentence said that on 17 July 2003 Mr Conway and another were stopped for a routine speed check on the North-Western Motorway in Auckland.  As the constable was checking, cannabis was smelt.  As a result a warrantless search was executed under the Misuse of Drugs Act 1975 s 18(2).  The search discovered four point bags containing methamphetamine on Mr Conway.  Originally, the summary of facts said that on the way to the police station Mr Conway “admitted that the methamphetamine was for selling on behalf of an associate and that he usually received $100 per bag”.

[4]       Mr Neutze, counsel for Mr Conway on the appeal, also initially acted for him in the District Court.  In that capacity he discussed the summary of facts with the Police and negotiated a change to the passage cited.  It was to read that Mr Conway “admitted that the methamphetamine was for selling on behalf of an associate and that he would receive $100 a bag”.

[5]       Unfortunately, Mr Neutze was not able to appear when Mr Conway’s plea was entered or when he was sentenced.  By oversight of counsel who did appear, the summary of facts remained unamended and Harrison J sentenced on that version.

[6]       When the matter came before this Court, Mr Neutze asked that the agreed amendment be inserted in the summary of facts.  Mr Davies, for the Crown, accepted the substituted words were those agreed between counsel and the Police in the District Court as the basis on which the plea would be entered.  Accordingly the summary of facts was amended at this hearing by consent.

[7]       Importantly, of course, the amendment deleted any suggestion of past dealing in methamphetamine by Mr Conway and confined his admission for what he was to receive for the four point bags in his possession.

Judgment under appeal

[8]       It is clear that, as might be expected, Harrison J was significantly influenced in his approach to sentencing by the way in which the summary of facts was formerly worded.  Indeed, he repeated the original wording.  Then, after noting the reclassification of methamphetamine as a Class A controlled drug and community concern relating (at [5]) to the “flood-tide of the drug in the community and its deeply pernicious and addictive qualities” the Judge referred to this Court’s decision in R v Wallace [1999] 3 NZLR 159 to the effect that those in the third category outlined in that case warranted starting points for sentencing of up to five years. The Judge then continued by saying (at [7]) that Mr Conway’s “plea of guilty to this charge and your admission to the police officer leaves me with no choice but to treat you as being involved in commercial dealing”. That led him to choose a starting point of four years imprisonment (at [8]) in reliance on Wallace and the decision in R v Stewart HC Hamilton CRI-2003-019-19303 10 February 2004.  In that latter case Mr Stewart sold two point bags of methamphetamine to an undercover police officer for $100 each, the two sales being about a fortnight apart.  Randerson J took four years imprisonment as an appropriate starting point and reduced that to 2½ years for the plea of guilty, co-operation with the police and other mitigating factors.

[9]       Harrison J then set that starting point against Mr Conway’s personal circumstances.  He held there were no aggravating factors despite Mr Conway’s fairly considerable list of previous convictions.  Mitigating factors were the plea of guilty and Mr Conway’s co-operation with the police.  The Judge took account of the fact that, had it not been for Mr Conway’s admission to the police officer about his level of dealing, he may have been charged with no more than simple possession of methamphetamine.  After taking a “depressing” probation report into account and Mr Conway’s personal attributes, the Judge gave him the “most substantial discount that is available”, 18 months, and sentenced him to a term of 2½ years imprisonment.

Submissions

[10]     Mr Neutze’s submissions included a deal of material relating to this appeal said to come from Mr Conway’s video statements.  That included the weight of methamphetamine in the four point bags and Mr Conway’s explanation for the offending.  None of that was in the material before us (nor, it would seem from the absence of any reference to it in the sentencing notes, was it before Harrison J).  This underlines, once again, the importance of prosecution and defence agreeing on a statement of facts on which a plea is entered so sentencing Judges can be aware of all aspects of the background to which counsel wish to draw their attention.  Failure to agree on a statement of facts causes repeated problems in sentencing, particularly in drug dealing cases where the weight, purity and value of drugs found and the extent of previous dealing are often matters of contention.

[11]     While we are content to assume that Mr Neutze’s précis of the matters mentioned was accurate, given the lack of an agreed statement of facts setting out those matters, little weight can be placed on them.

[12]     Mr Neutze submitted that Mr Conway’s offending as disclosed in the amended summary of facts was so minimal as to be virtually below the third category of offending in R v Wallace (at [32]). He submitted this was no more than an individual procuring drugs for friends. That was no more than technical supply and, had Harrison J sentenced on the amended statement of facts, he would have concluded that Mr Conway was no more than an occasional recreational drug-user who procured four points of methamphetamine to share with friends. There was no commerciality beyond that.

[13]     As to personal circumstances, Mr Neutze submitted Mr Conway accepted his guilt and was remorseful.  He again made the point that, without the admission, Mr Conway would have been charged with no more than simple possession.  He said Mr Conway wanted to plead guilty at the first opportunity and in any event did so prior to depositions.  He submitted imprisonment for no more than two years would have been appropriate.

[14]     Mr Davies submitted that the sentence was not manifestly excessive even on the amended summary of facts.  It remained commercial dealing though at the lower end of the scale.  Even social and non-commercial supply of methamphetamine has drawn prison sentences with a starting point of 2½ years (R v T (CA255/01) CA255/01 30 October 2001)  Mr Davies made the point that T was prior to reclassification of methamphetamine.  Mr Davies also pointed out the offending occurred whilst the appellant was serving a community sentence for weapons and dishonesty offences.

Discussion

[15]     Since Harrison J sentenced Mr Conway, and indeed since the argument on this appeal, this Court has delivered its decision in R v Arthur CA382/04 17 March 2005.  We have reviewed this case against Arthur and the other cases referred to in the schedule to that judgment.  Having undertaken that analysis, we are satisfied that Harrison J’s sentence of two and a half years imprisonment was not manifestly excessive.  We would, however, have reached that result by a slightly different route from that which appealed to the Judge.

[16]     In terms of Arthur, the proposed supply in this case was low level supply: at [18]. The starting range for low level supply is two to four years imprisonment: at [21]. It would be unrealistic to have separate sentencing bands or sentencing ranges for possession for supply cases. The fact a supply might not in fact have occurred at the time of apprehension would simply be a factor to be taken into account when fixing the appropriate starting point. In some cases, the fact that supply had not actually occurred may be a factor in favour of lowering the starting point. Sometimes, however, depending on circumstances, it may have no effect on starting point.

[17]     In this case, we consider the starting point should have been three years’ imprisonment.  In fixing that figure, we have taken into account:

a)The methamphetamine was clearly to be sold.  This was not a social supply, as in Arthur.

b)Mr Conway has, by his own admission, been a user of illegal drugs, including methamphetamine, for some years.  In terms of s 7(f) of the Sentencing Act, we consider a higher penalty is needed in his case by way of deterrence.  We also note in that regard that he has sixteen previous convictions, including two relating to drugs, the latter of which was imposed in June 2003.  He was sentenced to 220 hours community work on that occasion with a final warning, yet committed the offence now under consideration just over a month later and well before he had completed the sentence.

c)No reduction should be made because supply had not yet taken place.  The terms of the admission suggest the sale or sales had already been arranged, as the amount to be received for each bag was fixed.

[18]     We consider a starting point of three years to be in line with Arthur.  Mr Arthur’s offending involved the supply of a similar amount of methamphetamine to four teenagers, an aggravating feature not present here.  On the other hand, Mr Conway’s offending had a commercial element and Mr Conway’s background suggested a much greater need for deterrence that Mr Arthur’s.

[19]     The only mitigating feature here was the guilty plea.  A six month discount for that would not have been inappropriate.  No one could have quibbled with nine months.  There was no defence to the charge:  a finding of guilty of possession of methamphetamine for supply was virtually inevitable given Mr Conway’s admission.  We are by no means convinced, having read the probation report, that Mr Conway is truly motivated to leave the drug world behind.

[20]     For these reasons, we consider that the sentence imposed by Harrison J was within appropriate sentencing discretion.

Solicitors:

Crown Law Office, Wellington