Crutchley v R
[2015] NZCA 473
•6 October 2015 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA128/2015 [2015] NZCA 473 |
| BETWEEN | CALVIN GRANT CRUTCHLEY |
| AND | THE QUEEN |
| Hearing: | 24 September 2015 |
Court: | Harrison, Dobson and Gilbert JJ |
Counsel: | R E Webby for Appellant |
Judgment: | 6 October 2015 at 11.30 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of five years’ imprisonment is quashed. On the charge of possession of cannabis for supply, a sentence of four years’ imprisonment is substituted. On the charge of unlawful possession of a firearm, a concurrent sentence of 12 months’ imprisonment is substituted.
CThe sentence of five years’ imprisonment for possession of utensils is quashed. A sentence of three months’ imprisonment is substituted.
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REASONS OF THE COURT
(Given by Dobson J)
Introduction
Mr Crutchley was found guilty at trial on a charge of possession of cannabis for supply, with various quantities packaged in 32 and 10 gram bags, plus in greater bulk, totalling almost one kilogram.
A cut down .22 calibre rifle was also found, and Mr Crutchley was convicted of being unlawfully in possession of a pistol, which is how the weapon was classified. Mr Crutchley was also found in possession of more than $11,000 in cash, and electronic scales were located in the vicinity of the cannabis. However, Mr Crutchley was found not guilty on a further charge of supplying cannabis.
The District Court sentence
On 20 February 2015, Mr Crutchley was sentenced to five years’ imprisonment on the conviction for possession of cannabis for supply, with a concurrent sentence of three years’ imprisonment on his conviction for possession of the pistol.[1] Mr Crutchley appealed against those sentences on the basis that they were manifestly excessive.
[1]R v Crutchley [2015] NZDC 2667.
A co-offender, Mr Elder, had earlier pleaded guilty to, and been sentenced on, charges of possession of cannabis for supply, sale of cannabis and possession of a pistol.[2] On the basis that he had spent three months in custody on the charges he faced, he was sentenced by Judge Field to 18 months’ intensive supervision and 200 hours of community work.
[2]R v Elder DC Auckland CRI-2014-070-602, 9 April 2014.
On sentencing Mr Crutchley, Judge Ingram treated the offending as somewhere between category two and category three of the categories set out in the guideline judgment in R v Terewi.[3] The Judge identified a starting point for the possession for supply offence at a minimum of three years’ imprisonment.
[3]R v Terewi [1999] 3 NZLR 62 (CA).
On the basis that concurrent sentences would be imposed, the Judge considered a minimum uplift of 12 months would be justified for the conviction for unlawful possession of the pistol.
The Judge reviewed Mr Crutchley’s relevant prior convictions in some detail. These included 17 convictions for offences under the Misuse of Drugs Act 1975 and four convictions for offences under the Arms Act 1983. The Judge treated it as:[4]
… a pretty impressive record for being involved in drugs and firearms, the very things that come before me today.
[4]R v Crutchley, above n 1, at [10].
The Judge considered a further uplift of 12 months was appropriate to take account of Mr Crutchley’s long record of drug offending. The Judge considered there were no mitigating circumstances and accordingly imposed a sentence of five years’ imprisonment on the conviction for possession of cannabis for supply and three years’ imprisonment on the firearms conviction.
The Judge was mindful of the sentence that had been imposed on the co-offender, Mr Elder. He considered it difficult to achieve parity, given that Mr Elder had been dealt with as a first offender and was sentenced after spending some three and a half months in custody.
Arguments on appeal
Ms Webby relied on s 8(e) of the Sentencing Act 2002 to argue that the general desirability of consistency between sentences should apply, and that disparity can lead to a reduction of a sentence on appeal if the extent of disparity cannot be justified. She submitted that Mr Crutchley’s end sentence of five years’ imprisonment would appear to an independent, objective observer as so grossly and unjustifiably disparate, when compared to Mr Elder’s 18 months’ intensive supervision and 200 hours’ community work, as to be a miscarriage of justice.[5] Ms Webby argued that Mr Elder’s offending was in fact more serious because he was convicted of supplying cannabis. His status as a first offender could not justify the disparity if the three and a half months in custody was treated as the equivalent of a prison sentence of seven months when compared with Mr Crutchley’s starting point for the possession of cannabis offending of three years. Ms Webby submitted that a sentence five times more severe could not be justified, so there was a gross disparity.
[5]Citing Singh v R [2013] NZCA 245 at [4].
Acknowledging that the issue is whether the final sentence was manifestly excessive, Ms Webby advanced the appeal by criticisms of its component parts. She submitted that the circumstances of possession for supply of about one kilogram of cannabis, with no proven selling involved, placed this offending at the lower end of category two from Terewi, which should have attracted a starting point of two, instead of three, years.
Ms Webby also criticised the uplift of 12 months for the conviction for unlawful possession of a pistol. She argued that, irrespective of an appropriate sentence if this conviction stood alone, on application of the totality principle the uplift ought not to have been more than six months.
Ms Webby also submitted that the uplift for previous offending was unjustifiably high. In part, this submission rested on her reconstructing the sentencing process as involving an uplift for prior convictions of two years, which would constitute 66 per cent of the starting point of three years.
Decision
Mr Elder was treated extraordinarily leniently. This is not a situation in which the extent of the difference in sentences could, of itself, justify intervening on Mr Crutchley’s appeal. The Court can attribute to the notional independent observer an appreciation that Mr Elder was treated exceptionally leniently, and the expectation of parity must be tempered by that fact.
At sentencing, the Crown sought a starting point of between two and a half years and three years on the conviction for possession for supply of cannabis.
On the appeal, Mr Downs argued that that range was consistent with High Court sentencing decisions that could have been put to the sentencing Judge.[6] The presence of scales, the packaging in numerous bags inferentially for sale to others, and the substantial sum of at least partially unexplained cash, justified attributing a commercial element to his offending.
[6]He cited R v Heeney HC Wellington CRI-2008-085-7157, 3 July 2009 – approximately one kilogram of cannabis with a commercial element justified a starting point of at least two and a half years; and R v Litt HC Hamilton CRI-2011-024-326, 25 August 2011 – starting point of three years’ imprisonment for possession for sale of cannabis weighing just over one kilogram.
In reviewing sentences for possession of cannabis for supply, this Court recognised in R v Bryant that the range may be quite narrow, and that features particular to individual cases make comparisons difficult.[7] Mr Bryant had been convicted of possession for supply of approximately five kilograms of cannabis and his starting point of three years was considered in light of earlier appellate decisions where 4.8 kilograms had attracted a starting point of two years and 10 months, and 3.5 kilograms had attracted a starting point of two years and six months.[8] In Bryant, a starting point of three years was reduced to two years and six months’ imprisonment.
[7]R v Bryant [2009] NZCA 287 at [20]–[25].
[8]R v Rakatau [2007] NZCA 21 and R v Gray [2009] NZCA 31.
We are satisfied that a starting point of two and a half years’ imprisonment would have been adequate. The offending is properly characterised as being at the lower end of category two, there being no indication that the commerciality of the operation was particularly sophisticated or large-scale.
The Crown submission on sentencing had been for a nine month uplift for the Arms Act conviction. On appeal, Mr Downs characterised the possession of the cut down firearm together with the substantial quantity of cannabis as more serious, justifying an uplift of between 12 and 18 months.
Unlawful possession of a firearm, where it has been adapted so as to be more easily hidden or disguised, in combination with drug dealing is serious offending. However, a starting point of three and a half years for that totality of offending, when compared with similar cases, borders on excessive. In R v Moore, the defendant had been found in possession of 1.3 kilograms of dried cannabis and a number of plants, as well as packaging used for selling cannabis, and a sawn-off shotgun.[9] Before taking into account any aggravating or mitigating factors personal to the defendant, a sentence of two years and nine months was adopted, which included an uplift of six months for the firearms conviction. In the present case, an uplift of six months would bring the starting point to three years, which appropriately reflects the totality of offending.
[9]R v Moore [2013] NZHC 1427.
Ms Webby characterised the Judge as having adopted an overall starting point of three years, then uplifted that by two years on account of previous convictions. She criticised an uplift for 66 per cent as disproportionate and excessive. We agree with Mr Downs that the Judge’s consideration of an uplift for prior convictions did not proceed as Ms Webby contended. Rather, the Judge had arrived at four years via a starting point of three years for the possession of cannabis for supply, adding a further 12 months for the unlawful possession of a firearm.[10]
[10]R v Crutchley, above n 1, at [15].
From the combined sentence of four years, there had been a 25 per cent uplift for the prior convictions to reach the end sentence of five years’ imprisonment. Mr Downs argued that a 25 per cent uplift on that approach is not excessive. This Court has previously said that no rules can be prescribed for calculating an uplift that is appropriate in all cases.[11] On appeal, a court must assess the appropriateness of any uplift in the context of deciding whether the end sentence is manifestly excessive.
[11]Ripia v R [2011] NZCA 101 at [10].
Mr Crutchley was imprisoned in 2010 and 2012 for offences under the Misuse of Drugs Act, and in 2010 and 2011 for offences under the Arms Act. The pattern of his offending involving drugs and firearms has persisted to a worrying extent which justifies an uplift. However, from a combined starting point of three years, an additional uplift of 12 months on account of the extent and pattern of the prior offending could not be criticised.
On that analysis, an adequate sentence is four years’ imprisonment. Once regard is also had to the legitimate consideration in addressing the extent of disparity between Messrs Crutchley and Elder, we are satisfied that the total sentence imposed of five years was manifestly excessive.
Result
We accordingly allow the appeal and quash the sentence of five years’ imprisonment. We substitute sentences on the charge of possession of cannabis for supply of four years’ imprisonment, and on the charge of unlawful possession of a firearm of 12 months’ imprisonment, to be served concurrently.
Although not squarely a part of the appeal, Ms Webby raised a concern that Mr Crutchley’s criminal record shows that he was sentenced to a term of five years’ imprisonment for a lesser offence, entered at the same time, for possession of utensils. However, Ms Webby advised of a discussion with Judge Ingram to the effect that a concurrent sentence of three months’ imprisonment was to be imposed on that conviction.[12] Mr Downs agreed that the record appeared to be wrong. We accordingly include as an aspect of the determination of the appeal a quashing of the sentence notionally entered on Mr Crutchley’s criminal record for possession of utensils, and substitute a concurrent sentence of three months’ imprisonment.
[12]See R v Crutchley [2015] NZDC 4473 at [5].
Solicitors:
Adams Law, Tauranga for Appellant
Crown Law Office, Wellington for Respondent
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