Davies v The Queen
[2019] NZHC 1017
•13 May 2019
IN THE COURT MARTIAL APPEAL COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2019-485-150 [2019] NZHC 1017
BETWEEN MORGAN ROBERT GEORGE DAVIES
Appellant
AND
THE QUEEN
Respondent
CIV-2019-485-151
BETWEEN
CAMERON ALAN FAIRBANK
AppellantAND
THE QUEEN
Respondent
Hearing: 1 May 2019 Court:
Counsel:
Churchman J
Judge J R Billington QC Judge D McGregor
O S Winter for AC Davis
P L Murray for AC Fairbank
LTCOL J E Kennedy-Good and LT J K Rowe for CrownJudgment:
13 May 2019
JUDGMENT OF THE FULL COURT
Davies v R; Fairbank v R [2019] NZHC 1017 [13 May 2019]
Table of Contents
Introduction........................................................................................................... [1]
Conviction appeal................................................................................................. [10]
Elements of the Offences..................................................................................... [57]
Sentence appeals.................................................................................................. [76]
Sentencing in the military jurisdiction................................................................. [80]
Leading case of McCartin v R [88]
Imprisonment versus detention [93]
AC Davies’ sentence appeal................................................................................. [95]
Comparison with R v McCartin [97]
Analysis [103]
Imprisonment as opposed to detention [113] AC Fairbank’s sentence appeal................................................................................. [129]
Result................................................................................................................. [145]
Introduction
[1] On 20 February 2019, the appellants, Aircraftsman Morgan Davies (AC Davies) and Aircraftsman Cameron Fairbank (AC Fairbank) were found guilty in the Court Martial of New Zealand of offences against the Misuse of Drugs Act 1975. These civil offences were brought into the military jurisdiction through s 74(1) of the Armed Forces Discipline Act 1971 (AFDA).
[2]AC Davies pleaded guilty to the following offences:
(a)five charges of offering to supply a Class B controlled drug;1
(b)one charge of supplying a Class B controlled drug;2
(c)two charges of consuming a Class B controlled drug;3 and
(d)two charges of consuming Class C controlled drugs.4
1 Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(b); maximum penalty 14 years’ imprisonment.
2 Sections 6(1)(c) and (2)(b); maximum penalty 14 years’ imprisonment.
3 Sections 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment and a fine of $500.
4 Sections 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment and a fine of $500.
[3]Following a defended hearing, AC Davies was also found guilty of:
(a)one charge of offering to supply a Class A controlled drug;5 and
(b)one charge of consuming a Class A controlled drug.6
[4] After adopting a starting point of 21 months’ imprisonment, reduced to 16 months for mitigating factors, the Court imposed on AC Davies an end sentence of 12 months’ detention and dismissal from Her Majesty’s Service.
[5] AC Davies appeals both his conviction for the charges to which he pleaded not guilty and his sentence. He appeals on the basis that:
(a)the verdict on charge one was not a verdict which a properly directed Court Martial could reasonably have come to on the evidence and is inconsistent with the verdict of not guilty in respect of charge 10 against AC Fairbank;
(b)the verdict on charge 12 was not a verdict which a properly directed Court Martial could reasonably have come to on the evidence; and
(c)the sentence imposed on him was manifestly excessive.
[6] The Crown opposes the appeals of AC Davies. In respect of the conviction, the Crown submits that the guilty verdicts were available to properly directed Military members on the evidence. In terms of sentence, however, it is submitted that imprisonment was the least restrictive outcome available to meet the principles and purposes of sentencing. While the Court Martial was correct to adopt a starting point of 21 months’ imprisonment, the Crown submits it erred by imposing a final sentence of 12 months’ detention.
[7]AC Fairbank pleaded guilty to the following offences:
5 Sections 6(1)(c) and (2)(a); maximum penalty life imprisonment.
6 Sections 7(1)(a) and (2)(b); maximum penalty six months’ imprisonment and a fine of $1,000.
(a)two charges of offering to procure a Class B controlled drug;7 and
(b)one charge of offering to supply a Class B controlled drug.8
[8] AC Fairbank was sentenced to 18 weeks’ detention (from a starting point of 26 weeks) and was also dismissed from Her Majesty’s Service. The dismissal aspect of his sentence is not challenged. The appeal is only against the duration of the detention, on the basis that it was manifestly excessive.
[9] In respect of AC Fairbank’s appeal, the Crown opposes it on the grounds that the starting point adopted was lenient when compared to relevant sentencing levels for Class B offending and anything less than four months’ detention would have resulted in the sentence being manifestly inadequate. The Crown does not seek any increase in the sentence.
Conviction appeal
[10]We will deal separately with the conviction appeal and then the sentence appeals.
[11] An appeal against conviction in the military jurisdiction is brought under s 9A of the Court Martial Appeals Act 1953 which provides:
9A Determination of appeals against conviction
(1)On an appeal to the Court against conviction, the Court must—
(a) allow the appeal if it considers that—
(i)the finding of the Court Martial should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(ii)the finding of the Court Martial involves a wrong decision on a question of law; or
(iii)there was, on any ground, a miscarriage of justice; or
(iv)the trial was a nullity; or
(b) dismiss the appeal in any other case.
7 Sections 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment and a fine of $500.
8 Sections 6(1)(c) and (2)(b); maximum penalty 14 years’ imprisonment.
(2)However, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred even though it considers that the point raised in the appeal might be decided in favour of the appellant.
(3)If the Court allows an appeal, the Court—
(a)may squash the conviction; and
(b)may do any of the following:
(i)direct a judgment and finding of acquittal to be entered; or
(ii)direct a new trial; or
(iii)make any other order that justice requires.
[12]The first charge to which AC Davies pleaded not guilty was:
Committing a civil offence contrary to AFDA s 74(1) namely offering to supply a Class A controlled drug contrary to section 6(1)(c) and (2)(a) of the Misuse of Drugs Act 1975.
In that he, at an unknown location, on 01 October 2016, offered to supply Methamphetamine, a Class A controlled drug, to C1052344 AC CA Fairbank.
[13]The second charge to which he pleaded not guilty was:
Committing a civil offence contrary to AFDA s 74(1) namely consuming a Class A controlled drug contrary to section 7(1)(a) and (2)(a) of the Misuse of Drugs Act 1975.
In that he, at Wellington on 04 March 2017, consumed Methamphetamine a Class A controlled drug.
[14] The issue at trial was whether, in each case, the controlled drug was the Class A drug methamphetamine and not some other controlled substance, possibly a Class B controlled drug.
[15] The prosecution sought to prove that the drug in question was the Class A drug methamphetamine on the basis of text message conversations recorded on AC Davies’ mobile phone where he described a drug as “speed” and that, when using the word “speed”, he meant the Class A drug methamphetamine.
[16]The text messages on which the prosecution relied in each case are set out below:
First Charge: Davies; Second Charge: Fairbank
| Date | Time | From | Attributed To | To | Attributed To | Text (SMS) Content |
| 01/10/2016 | 11:06:53 pm | 64276614121 | AC Fairbank | 64278144522 | AC Davies | Hey gorgeous? Any chance of you supplying me with some drugs next weekend? Speed mdma whatever next weekend? |
| 01/10/2016 | 11:12:44 pm | 64278144522 | AC Davies | 64276614121 | AC Fairbank | Haha yeah bro should be sweet, no mdma but movies can do |
| 01/10/2016 | 11:13:34 pm | 64276614121 | AC Fairbank | 64278144522 | AC Davies | Movies? |
| 01/10/2016 | 11:13:47 pm | 64278144522 | AC Davies | 64276614121 | AC Fairbank | Haha yeah bro speed |
| 01/10/2016 | 11:13:34 pm | 64276614121 | AC Fairbank | 64278144522 | AC Davies | Sweet bro just let us know I’ll let you know in the next day or so |
| 01/10/2016 | 11:13:47 pm | 64278144522 | AC Davies | 64276614121 | AC Fairbank | Safe g just tell me how much you want, 100 per gram |
Twelfth, Thirteenth, Fourteenth and Fifteenth Charges: Davies
| Date | Time | From | Attributed To | To | Attributed To | Text (SMS) Content |
| 08/03/2017 | 12:26:19 pm | 64224064388 | Hamlin | 64278144522 | AC Davies | Yuss that’s good you will, of course you will I didn’t even notice?! Why couldn’t you talk? |
| 08/03/2017 | 12:40:01 pm | 64278144522 | AC Davies | 64224064388 | Hamlin | Haha because I was so out the gate I didn’t even know what was going on half the night. I sat down for 2 hours somewhere at homegrown wondering what the fuck was going on, it was crazy, fun, but kinda worrying haha |
| 08/03/2017 | 12:44:30 pm | 64224064388 | Hamlin | 64278144522 | AC Davies | What the heck!!!! Hahaha what kinda drugs were you on?!? That’s scary but good to know you were safe! |
| 08/03/2017 | 12:46:16 pm | 64278144522 | AC Davies | 64224064388 | Hamlin | Haha uhh a lot of different ones. Speed, ket, mdma, mdmc. What a combo tho holy shit. It was nuts but I was okay haha held it together better than the others, they were fuuuucked |
[17] The prosecution alleged that, where AC Davies and the other parties to the text messages used the word “speed,” that related specifically to the Class A drug methamphetamine at a price of $100 per gram. In relation to the charge of consumption on 4 March 2017, where AC Davies described his attendance at a function called “Homegrown” and described the drugs he used as being “speed, ket, mdma and mdmc”, the reference to “speed” was a description of the Class A drug methamphetamine.
[18] Apart from this evidence, the only other direct evidence of consumption of drugs by AC Davies was in relation to the search of his room by Flight Sergeant (FS) Griffiths on 5 October 2017.
[19] In carrying out the search of the room in the presence of AC Davies, FS Griffiths located a number of items, including a tin which had empty plastic bags in it containing MDMA. AC Davies, on questioning, admitted it had contained MDMA, a party drug which was consumed by swallowing, digesting or snorting. Those plastic bags were later sent to the ESR for examination and were found to contain traces of MDMA and the Class A drug methamphetamine.
[20] In addition to the plastic bags, the search also revealed the presence of one small red capsule, a glass spoon, a straw, a cut-off section of a straw, razorblades and a set of electronic scales.
[21] It was the case for the Crown that this search revealed evidence of both the use of, and dealing in drugs by, AC Davies.
[22] Subsequent to that search, AC Davies’ mobile phone was searched and the text messages which are relevant to the charge were located.
[23] AC Davies was subsequently interviewed but there was no probative evidence given at the interview, so it was not played to the Court Martial.
[24] In support of the prosecution case, the Crown called Petty Officer (PO) Reynolds of the Royal Naval Reserve, currently a police officer serving as a Detective Sergeant attached to the National Organised Crime Group based in Auckland. PO Reynolds has approximately 11 years of dedicated drug squad work and is currently the officer-in- charge of the Asia Organised Crime Group. He was accepted as being an expert in relation to illicit drugs and drug related offending.
[25] PO Reynolds was called to give evidence in relation to the language used in the texts. It was his evidence that he felt confident in distinguishing between the various class of drugs in conversations recorded in text messages.
[26] In relation to the Class B drug MDMA, he said he had heard it commonly described as a “party drug”, also as eccies, ecstasy, lollies and various other terminology for that drug.
[27] He also noted that ecstasy could be MDMA or other ranges of drugs from Class A to Class C. However, a common class of ecstasy is a Class B controlled drug. In that form, it is normally consumed as a tablet though it may come in a powdered form.
[28] In relation to the other paraphernalia found in AC Davies’ room, PO Reynolds confirmed that straws such as those located were commonly used for snorting powdered drugs.
[29]As to the tablet form of MDMA, in his opinion, he said the price varied between
$30-$60. The red tablet found in AC Davies’ room was similar to other tablets he had seen containing MDMA. Such a tablet would cost in the order of $40.
[30] In relation to the scales in AC Davies’ room, PO Reynolds gave evidence that scales were often used as it was necessary to be very accurate when measuring and selling methamphetamine in “point bags”, which are 0.1 of a gram.
[31] Specifically, in relation to the methamphetamine, PO Reynolds told the Court Martial that it is a Class A drug usually found as a crystalline substance, generally white or whitish and usually in plastic snap-lock bags. It comes in various purities, normally in New Zealand quite high, up to 80 or 90 per cent. Often, in its purest form, it is referred to as “P” or “Ice”. Ice is a term generally used overseas rather than in New Zealand. Common terms in New Zealand are “meth”, “P”, “bird”, “whiz” and “gear”.
[32] PO Reynolds’s evidence was that methamphetamine is usually taken either intravenously, orally or ingested by smoking. When smoked, it is usually put in an old smoking pipe and the vapor is ingested. The long-handled spoon, such as that found in the search, is often used to take the product out of the plastic bag.
[33] With regard to dealing with methamphetamine at street level, it is usually sold in “point bags”, which is a small plastic zip-lock type bag with a gram of methamphetamine in it. The smaller bags found in AC Davies’ room fitted the description of those which are often found to contain 0.1 gram of methamphetamine.
[34] As to value, PO Reynolds said that it changes a lot, but the guide is generally $100 for 0.1 gram and $1,000 for a gram. He did acknowledge that prices vary. In particular, the price would decrease as the purity of the drug decreases when cut. The cutting of drugs is often achieved by the use of razorblades where small quantities are involved.
[35] PO Reynolds was specifically asked about the use of the word “speed”. His evidence was that speed is basically a very cut down form of methamphetamine. It was relatively popular probably 15 to 20 years ago, but not a lot of it has been around in recent years. He did say it is still around. Speed itself, he told the Court Martial, is a very weak form of methamphetamine. It is probably as weak as 10 per cent in purity in a diluted form. It is generally sold as a powder or sometimes in capsules.
[36] PO Reynolds was asked specifically to refer to the text messages sent and received by AC Davies. In relation to those, he told the Court Martial that where AC Fairbank asked AC Davies if he had any drugs such as speed, MDMA or whatever, Davies replied “Yes, no MDMA but “Movies” can do”. He said that he had not encountered the use of the word “Movies” before as a code.
[37] As to that conversation, and the price of $100 a gram, he told the Court Martial he had not had a lot of recent experience himself in relation to dealings with speed and had accordingly reached out to the National Drug Investigation Bureau for pricing, but they could not assist. Speed is known for its low purity and his colleagues within the Police and other informants told him that $100 for a gram of speed is quite normal and the going rate. Speed, he said, was the cut down form of methamphetamine, a Class A controlled drug. In contrast, in relation to current trends, the price for MDMA would be more likely $250 for an MDMA product in powdered form and significantly greater for pure methamphetamine.
[38] Concerning the conversation where AC Fairbanks has asked AC Davies if it is MD and was quoted a price of $150-$160, PO Reynolds’ evidence was that would be consistent with four MD tablets at $40 each which in his experience was the correct price range.
[39] PO Reynolds gave evidence on a number of other charges before the Court. Specifically, in relation to the second defended charge faced by AC Davies of the consumption of methamphetamine on 4 March, PO Reynolds referred to the text message in which AC Davies had said he had consumed “speed” “ket”, “MDMA” and “MDMC”. He told the Court that speed, as previously mentioned, is generally sold in a powder form or capsules and is a very cut down version of methamphetamine and a Class A controlled drug. “Ket”, he said, is ketamine, a legitimate drug used to sedate and give pain relief. When used illicitly though, it is able to give a euphoric effect. MDMA is a Class B controlled drug and MDMC, also known as methylone, is a psychiatric drug which gives a very similar effect to MDMA and is also a Class B controlled drug.
[40] When cross-examined by defence counsel Mr Winter, it was put to him that a Class B controlled drug amphetamine might also be known as speed. PO Reynolds said
he had not heard it so described. Specifically, he said that his understanding was that, in the drug community, amphetamine was called amphetamine and he was not aware of any other names for it. Specifically, he said he did not have a lot of experience with people using amphetamine or instances of slang being used to describe that drug. He did confirm to Mr Winter that, if someone is referring to “speed”, then that is a reference to methamphetamine, but he did agree that when people are referring to certain drugs, they may not know exactly what the drug contains. In particular they may not know what class of drug it is.
[41] In relation to the conversations where the parties to the text messages referred to “speedy race cars”, PO Reynolds said he did not believe that was a reference to methamphetamine as the price of $40 was consistent with MDMA and not methamphetamine. Thus, where AC Davies was using the words “speedy race cars”, that was not a description of methamphetamine.
[42] When questioned further about pricing, PO Reynolds agreed that you could not buy a pure form of methamphetamine for $100 per gram, that being far too cheap. A price of $100 per gram made it most unlikely that it was a pure form of methamphetamine that was being discussed. Although he does not have personal direct experience, he said the advice he had was that the current rate for speed is $100 a gram.
[43] PO Reynolds said that $100 per gram was not indicative of any other form of drug subject to the Court Martial. Specifically, when asked if he were able to tell the Court Martial whether $100 per gram is indicative of any other form of drug. He replied: “Certainly no other ones mentioned here today. It doesn’t fit in with MDMA, it doesn’t fit in with meth. I mean, no.”
[44] PO Reynolds told the Court Martial that, where it is alleged that speed is a street name, there may be considerable uncertainty on the part of people discussing the drug as to what they were actually purchasing.
[45] It was the evidence of PO Reynolds on which the Crown relied to prove that the use of the word “speed” proved that the drug either being offered for sale or consumed by AC Davies was the Class A drug methamphetamine.
[46] This matter became the subject of further evidence when the Crown called the ESR forensic scientist, Mr Stewart Mark Edwards.
[47] Mr Edwards confirmed that, on analysis, the sealed plastic bags contained residues of white powder and two of those showed traces of methamphetamine. A third sealed plastic bag contained traces of MDMA and the other of cannabis.
[48]The red capsule on examination contained traces of MDMA.
[49] Under cross-examination by Mr Winter, Mr Edwards confirmed that amphetamine and methamphetamine are chemically similar, but the former is a Class B drug whereas the latter is a Class A drug. Visually, there is little difference between them.
[50] When asked about the description of drugs such as ecstasy, Mr Edwards gave evidence that ecstasy is a sort of a colloquial term for a family of drugs which may include both Class A and Class B drugs.
[51] In relation to methamphetamine, it can be in the order of anywhere from significant purity, 60 per cent to 80 per cent, but may be cut or diluted down to quite minimal quantities. He agreed there were varying degrees of purity.
[52]The most significant evidence from the appellant’s point of view was as follows:
Q: In your experience analysing drugs, do you commonly come into contact with what has been referred to in this Court Martial as cut methamphetamine? Do you know what that’s called?
A: It doesn’t really have a name but it just means that another substance has been mixed in with the methamphetamine at some point.
[53] This evidence is inconsistent with that of PO Reynolds, who had said that such a product was commonly described as “speed”.
[54] When asked by the Court if he had heard the name speed, Mr Edwards told the Court “It’s generally referred to as the amphetamine type stimulants such as methamphetamine or amphetamine, it’s a colloquial term for that, but it’s not specific to any one drug.” The Court asked: “So it’s a general term, if you like”. Answer: “Correct”.
[55] This was the totality of the evidence available to the Court Martial for it to consider whether the prosecution had proved to the required standard that, when using the term “speed”, AC Davies was referring to the Class A drug methamphetamine.
Elements of the Offences
[56] In relation to the first charge of dealing with a controlled drug, it was necessary for the prosecution to prove to the required standard that AC Davies offered to supply the Class A drug methamphetamine.
[57] There was no issue taken as to the fact that an offer was made to AC Fairbank by AC Davies, so the only matter in issue was whether it was the Class A drug methamphetamine that was offered rather than an alternative drug such as the Class B drug MDMA.
[58] The same issue arose in relation to the 12th charge where, again, it was not disputed that the elements of the offence requiring proof that a controlled drug had been consumed by AC Davies had been made out. The only issue was whether it was the Class A controlled drug methamphetamine that had been consumed.
[59] In this regard, s 29 of the Misuse of Drugs Act must be noted because a mistake as to the nature of the controlled drug does not provide a defence. This provision, so far as it is material, is set out below:
Mistake as to nature of controlled drug or precursor substance
Where, in any proceedings for an offence against any of the provisions of section 6 or section 7, … it is necessary, if the defendant is to be convicted of the offence charged, for the prosecution to prove that some substance, preparation, mixture, or article involved in the alleged offence was the controlled drug … which the prosecution alleges it to have been, and it is proved that the substance, preparation, mixture, or article was that controlled drug … the defendant shall not be acquitted of the offence charged by reason only of the fact that he did not know or may not have known that the substance, preparation, mixture, or article in question was the particular controlled drug or precursor substance alleged.
[60] In addition, s 25 of the Crimes Act 1961 provides that ignorance of the law is not a defence:
Ignorance of law
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him or her.
[61] Accordingly, it follows that the only issue for the Court Martial, and for this Court, is whether there was evidence upon which the fact finders could reasonably conclude that it has been established that the drug in question was the Class A controlled drug methamphetamine.
[62] As was acknowledged by counsel for the appellant AC Davies, an appellate court must be extremely cautious when considering disturbing findings of fact made by lower courts. Counsel cited the following passage from R v Ramage.9
The common ground advanced by the applicants – that the verdict is unreasonable or cannot be supported having regard to the evidence – is that contained in s 385(1)(a) of the Crimes Act 1961. A verdict will be of such a character if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict…
[63]Counsel also cited the more recent decision of Jadallah v R:10
A verdict may be set aside as unreasonable only where the Court is satisfied that no jury applying the appropriate standard of proof could reasonably have reached a guilty verdict on the evidence. The appellate court performs a review function; in doing so it must give appropriate weight to any advantages possessed by the jury. This is because the assessment of the credibility and reliability of evidence given by the witnesses is an essential part of the jury’s function as the delegated fact-finder. Appellate courts should not lightly trespass on their jurisdiction.
[64] In support of the appeal, Mr Winter submitted that, in this case, the essential facts upon which the panel were deliberating related to expert evidence, thus the inquiry was to what was said, rather than how it was said.
[65] Mr Winter noted, as has been set out above, that evidence about the use of the word “speed” was given by PO Reynolds as an expert and that, in his experience, speed was methamphetamine – not what is commonly known as “P” but methamphetamine of a substantially lower purity and quality. Mr Winter referred to the contrasting evidence of Mr Stewart Edwards of the ESR who had over 27 years’ experience in analysing drugs.
9 R v Ramage [1985] 1 NZLR 392 at 393 (citations omitted).
10 Jadallah v R [2018] NZCA 536 at [22].
When cross-examined and questioned by the Court, his evidence was to the effect that cut methamphetamine did not have a name. In particular, in relation to the term “speed”, he said it generally referred to amphetamine type stimulants such as methamphetamine or amphetamine. Mr Edwards said it is a colloquial term not specific to any one drug.
[66] On the basis of that evidence and the identified conflicts in it, Mr Winter submitted that, on an objective basis, the expert evidence failed to identify any safe foundation for the proposition that “‘speed’ is methamphetamine and nothing else”.
[67] Mr Winter argued that the texts which were relied on in relation to the first and twelfth charges added little to the argument. His submission was that there was a fundamental disconnect between two expert Crown witnesses on a key point in the trial and that, in particular, where the term “speedy race cars” was used and a cost quoted of
$40 for each, that was consistent with the evidence that it was the Class B controlled drug MDMA.
[68] In reply, counsel for the Crown submitted that it was open to the Court Martial to take into account the context in which the term “speed” was used in the text messages, with AC Davies distinguishing it from other illicit drugs. In addition, it was submitted the evidence showed amphetamine, the Class B drug, was rare in New Zealand. The price of $100 per gram was consistent with the offer to supply, in relation to the first charge, the Class A drug methamphetamine.
[69] The matter was confused to some extent in that there was argument to the effect, both in the Court Martial and in this Court, that the appellant AC Davies had to be aware that what he was offering to supply or was supplying was the Class A drug methamphetamine and not some other drug. The effect of this approach by counsel in this Court is consistent with that adopted by the Judge in the Court below:
TheCourt: All right, thank you, we have your communication and I’ll deal with this in two parts.
“Do we need to be certain beyond a reasonable doubt that the accused had knowledge that meth is a component of speed?” The Crown case here is that when the defendants were talking about speed, they knew it was methamphetamine.
The second question, “If the accused knowingly procured, supplied, consumed what is commonly accepted as speed but were unaware of its constituents, can a guilty verdict still be passed?” The answer is no.
All right, I trust that helps. Please don’t hesitate to ask if there’s anything further we can do.
SQD LDR Elliott: Thank you very much, Your Honour.
[70] Arguably this direction made the prosecution’s task unnecessarily more difficult. The Panel found AC Davies guilty of both charges.
[71] It is the view of this Court that, whilst the conflicts in evidence were properly identified by Mr Winter, the Panel was entitled to rely on the evidence of PO Reynolds and, if it did, then, taking it as a whole, there was sufficient evidence upon which they could properly conclude that the drug being offered for supply and consumed was the Class A drug methamphetamine.
[72] It cannot be said that, acting reasonably, the Panel ought to have entertained a reasonable doubt as to AC Davies’ guilt. In particular, weight should be given to the fact that the Panel not only had the advantage of seeing and hearing the witnesses but also received an instruction from the Judge to the effect that they were required to be satisfied that AC Davies actually understood what he was supplying was the Class A drug methamphetamine, although this was not an essential element of the offences charged.
[73] Whilst it may be argued that another Panel may have reached a different decision, it cannot be said that the decision in this case was so unreasonable as to entitle this Court to interfere. Accordingly, the appeal against conviction is dismissed.
Sentence appeals
[74] An appeal against sentence in the military jurisdiction is brought under s 9AB of the Court Martial Appeals Act which provides:
9AB Determination of appeals against sentence
On an appeal to the court against sentence, the court must—
(a)do either of the following if it thinks that a different sentence should have been imposed:
(i)quash the sentence imposed and impose any other sentence warranted in law (whether more or less severe) in substitution for the sentence that was quashed; or
(ii)vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or
(b)dismiss the appeal in any other case.
[75] For an appeal against sentence to succeed, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” in passing sentence.11 On both AC Davies’ and AC Fairbank’s sentence appeals, it is claimed that the sentence imposed was manifestly excessive.
[76]The expression “manifestly excessive” was described by the Court of Appeal in
R v Monkman:12
[6] Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending). …
[77] In considering whether a sentence is manifestly excessive, the focus is not on how the result was arrived at, but on whether it is correct.13
Sentencing in the military jurisdiction
[78] Section 162 of the AFDA requires the Armed Forces Discipline Committee (AFDC) to set sentencing guidelines for proceedings under that Act. The Court Martial must follow the AFDC Sentencing Guidelines (the Sentencing Guidelines) unless it would be contrary to the interests of justice to do so.14 The Sentencing Guidelines largely reflect the Sentencing Act 2002 and the approach to sentencing set out in R v Taueki15 with an additional military overlay.
11 R v Shipton [2007] 2 NZLR 218 (CA) at [139].
12 R v Monkman CA445/02, 3 March 2003.
13 R v Ripia [2011] NZCA 101 at [15].
14 Court Martial Act 2007, s 65. The Sentencing Guidelines are issued in New Zealand Defence Force
Manual of Armed Forces Law (2nd ed) Vol 2 at Ch 1, Annex B.
15 R v Taueki [2005] 3 NZLR 372.
[79]With regard to the adoption of a starting point, the Sentencing Guidelines direct:16
In setting a starting point, it is important to consider previous sentences that have been imposed in similar cases. This helps ensure consistency. Guidance may be drawn from decisions both in the civilian and military justice system. Appendix A is a Sentencing Guide setting out ranges of sentences drawn from previous summary hearings. However, each case has to be decided on its own facts and in accordance with the general principles set out in these Guidelines.
Further, modern societal attitudes and military contingencies evolve over the years. In such cases, although it might be appropriate to acknowledge the previous decisions, it is important to provide for the present requirements of the Service and community when fixing and explaining sentences.
[80] The requirement for consistency with other sentences is also reflected in the commentary on the principles of sentencing, which states:17
The sentencer must take into account the desirability of consistency with appropriate sentencing levels and other outcomes in respect of similar offenders committing similar offences in similar circumstances.
[81] In addition, regarding the final sentence imposed, the commentary on the principles of sentencing also provides:18
The sentencer should generally impose the least severe outcome that is appropriate in the circumstances. Accordingly, if two sentences are available for an offence both of which would appropriately achieve the purposes of sentencing, the least restrictive sentence should be preferred.
[82] Schedule 2 of the AFDA establishes a hierarchy of nine sentencing options available to the Court Martial:
(a)imprisonment;
(b)dismissal from Her Majesty’s Services;
(c)detention;
(d)reduction in rank;
16 Sentencing Guidelines, cl 4(b).
17 Clause 3(b)(iv).
18 Clause 3(b)(vi).
(e)forfeiture of seniority;
(f)a stay of seniority;
(g)a fine;
(h)a severe reprimand;
(i)a reprimand.
[83] Each type of sentence is to be treated as more severe than any type below it in the list, although a period of detention longer than any sentence of imprisonment that would be imposed is not to be seen as less severe.19
[84] In the context of drug offending in the military, the Sentencing Guidelines provide:20
(vii)Misuse or supply of drugs or psychoactive substances. All persons in the Armed Forces must be able to rely on their comrades not to be under the influence of drugs or psychoactive substances. Use of such drugs or substances is regarded as grave offending in a military context. This is a major area in which comparisons with civilian sentences are of limited value. Drug and psychoactive substance use is regarded as intolerable in the NZDF. Dismissal from service should be considered as an appropriate starting point in all but the most extraordinary circumstances.
(viii)Supply of drugs or psychoactive substances, particularly to other members of the NZDF, is more serious by far. It offends against all of the values and ethos of the NZDF. It creates a danger not only to the physical and mental well-being of fellow Service members, but also to the cohesion and effectiveness of the NZDF as a whole. In addition to dismissal from service, an appropriate starting point should include a period of incarceration or detention. The appropriate sentence of incarceration will be governed by the nature and amount of the drug or substance supplied.
[85] These Sentencing Guidelines reflect the seriousness of drug offending in the military jurisdiction. They also indicate that civilian sentencing cases will be of limited
19 AFDA, sch 2, cl 3.
20 Clause 4(b)(iv).
value compared to those in the military jurisdiction. This was also highlighted in
McCartin v R, where the Court Martial Appeal Court held that:21
[49] The charges against the appellant are serious. Much more serious than if he were a civilian. Soldiers are part of a uniformed and disciplined force trained and equipped to use lethal violence. The use of drugs cannot be tolerated in such an environment. Military law, upon conviction, would treat the appellant more severely than if he were a civilian.
Leading case of McCartin v R
[86] In the military jurisdiction, the leading case for offending involving the supply of Class B controlled drugs is McCartin v R.22 Although the offending mostly involved civilians and occurred off base while he was either on leave or off duty, Sapper McCartin had offered to supply drugs to other service members and had attempted to source drugs. On one occasion, Sapper McCartin had attempted to source an ounce of cannabis, which is the statutory threshold for the presumption of commerciality. The charges spanned events occurring over six weeks and involved three substances, none of which were Class A drugs. On appeal, the issue was whether detention should have been imposed, rather than the term of four months’ imprisonment.
[87]The Court Martial, in sentencing Sapper McCartin, held that:23
[D]eterrence is the paramount consideration in respect of your offending and in respect of drug offending in the military context. The Court wishes to send a message to other personnel, that dealing in drugs will result in a sentence of imprisonment, and that is seen as the least severe sentence that one can impose to establish that necessary deterrent element.
[88] In upholding the sentence of the Court Martial, this Court cautioned against mere membership of the Armed Forces being an aggravating factor in drug offending, but held that:24
[A]ny link between the offending and the offender's position within the Armed Forces is likely to constitute an aggravating factor. The stronger the link, the more serious the matter may well be viewed because of the potential danger.
21 McCartin v R [2016] NZHC 1807.
22 McCartin v R [2016] NZHC 2133.
23 At [16].
24 At [19].
[89] In discussing general deterrence in the context of drug dealing, the Court noted that whether a particular sentence meets the requirements of deterrence will be case specific, but ultimately concluded that:25
[A] sentence of detention may often provide insufficient deterrence in this area of drug dealing. That is not to ignore the punitive elements of this sentence but it nevertheless still has the armed services context, the other detainees will be armed services personnel and the detainee is still on pay, albeit reduced.
[90] In Sapper McCartin’s case, the link between his offending and the military was at the lower end, with Sapper McCartin characterised as a “very low level drug dealer”.26 The Court also considered it relevant that Sapper McCartin had no previous charges and had been progressing satisfactorily in the Armed Forces.27 Nevertheless, the Court was not prepared to disturb the sentence of four months’ imprisonment, noting that “drug dealing and imprisonment are always a likely combination”.28
Imprisonment versus detention
[91] While detention in a Services Corrective Establishment (SCE) occupies a lower position in the sentencing hierarchy, it is not an easy punishment. On the contrary, its routine has been found to be considerably more demanding than what might be expected in a civilian prison.29 An SCE is not, however, a prison and, while retaining an element of individual deterrence, does not provide the same level of general deterrence as imprisonment, which carries significantly more stigma than detention. This discrepancy has been acknowledged by this Court in Manning v R where the Court assessed that two weeks in prison was the equivalent of four weeks detention.30
[92] The nature of the sentence of detention was discussed in some detail by the Court in McCartin, which made the following observations:31
[6] A memorandum was provided to the Court which sets out how a detention sentence runs over its term. The focus of the programme is both corrective and rehabilitative, and set programmes have been developed. Many detainees will be
25 At [20].
26 At [19] and [21].
27 At [14].
28 At [23].
29 R v Murfitt Court Martial Appeal Court CIV-2010-485-1995, 15 December 2010 at [65].
30 Manning v R [2015] NZHC 936 at [49].
31 McCartin v R, above n 22 (citations omitted).
returning to the Services following their sentence and that obviously influences the structure. However, if a detainee is leaving the Services at the conclusion of the sentence, there is instead a greater focus on career prospects with emphasis on assistance with building a CV, and job interviewing techniques. The programme uses outside agencies to assist with individual needs such as drug and alcohol issues.
[7] Presently the basic module runs for 14 days, although longer modules are being developed. The SCE [Services Corrective Establishment] considers a minimum term of 28 days is required to maximise potential benefits. The sentence will usually occupy a detainee for 16 hours a day, seven days a week. It is divided into four stages. During the term of the sentence, most privileges are removed. It is described a “very strict” regime where discipline and motivation are key factors. The maximum available term is two years.
[8] We were advised that a detainee continues to receive half their salary whilst serving the sentence.
AC Davies’ sentence appeal
[93] Viewed in its totality, the Crown submits that AC Davies’ offending was, by some margin, the most serious drug offending dealt with in the military jurisdiction to date. While the Court Martial was correct in fixing a starting point of 21 months’ imprisonment and then reducing it, following mitigation, to 16 months’ imprisonment, it is submitted that it erred in imposing instead a sentence of detention for a period of 12 months. The Crown submits that moving from 16 months’ imprisonment (the most severe punishment option available under the hierarchy of available punishments) to 12 months’ detention (the third most severe punishment option), which would be roughly comparable to six months’ imprisonment, resulted in a manifestly inadequate sentence.
[94] Mr Winter does not accept that this is by any margin the most serious drug offending within the military to date and instead argues that it is, at worst, marginally below the seriousness of McCartin. A sentence of 16 months’ imprisonment, it is submitted, would have been clearly manifestly excessive when considered against McCartin and other cases. A term of about double the previous highest terms of detention would similarly be manifestly excessive. Mr Winter submits that, while the Court Martial clearly intended to send a signal to members of the Military with respect to drug dealing and use within the services, the objectives of denunciation and deterrence could have been achieved by a term of significantly less detention than the one imposed.
Comparison with R v McCartin
[95] The Crown submits that AC Davies’ offending was significantly more serious than that of Sapper McCartin due to the extent and nature of his offending, the military nexus, the aspect of commerciality and his previous offending.
[96] As to the comparative extent and nature of AC Davies’ offending, the Crown notes that he was found guilty of 12 charges spanning supply of Class A and B controlled drugs and use of Class A, B and C controlled drugs over a period of almost 12 months. Six of these charges related to the supply of a Class B controlled drug (MDMA). By comparison, Sapper McCartin faced seven charges relating to offering to sell a psychoactive substance and Class B and C controlled drugs, together with procuring and using a Class C controlled drug. His offending spanned six weeks. While Sapper McCartin offered to supply a psychoactive substance to two members of the armed forces, his sole Class B controlled drug offence had no military connection.32
[97] Mr Winter, however, points out that this analysis requires recognition that one of Sapper McCartin’s offences involved an attempt to procure an ounce of cannabis which meets the statutory presumption for commercial activity. He submits that that factor alone lifts Sapper McCartin’s offending significantly beyond that of AC Davies which only involved a number of relatively small transactions. Furthermore, with the possible exception of the scales, there is also an absence of the common indicators of commerciality (cash, tick books, or any indication that transactions could be completed on credit) in the case of AC Davies. While he was introducing drugs into the Airforce and that is acknowledged to be a serious aggravating feature, AC Davies does not appear to be a “primary” dealer and it is submitted, only really amounted to a conduit between people outside the Airforce and those within it, similar to the role of a street dealer in civilian proceedings. It is not submitted his position is anything but serious, but that context and perspective need to be maintained in considering his overall culpability
[98] In terms of military nexus, the Crown argues that AC Davies’ offending had a much closer nexus with his position in the armed forces than was the case with Sapper McCartin’s offending. In particular, of the six Class B controlled drug supply
32 McCartin v R, above n 22, at [19].
charges AC Davies pleaded guilty to, four involved offers, or actual supply, to different members of the Royal New Zealand Air Force. Furthermore, evidence of his offending was found in his barrack room and, in handing down the sentence, the Judge noted that AC Davies’ offending abused the trust of his comrades and showed a disregard for the wellbeing of Service personnel. By comparison, in Sapper McCartin’s case, only two of the recipients of the first transaction were members of the armed forces. Beyond that, his offending was unconnected with his position in the armed forces.33 While Mr Winter accepts that others involved with AC Davies appear to have been military personnel, none of the transactions appear to point to those people using drugs while working or on military property. Rather, it is submitted there is a clear flavour of drugs being sought for music festivals or similar events away from work which is directly relevant to the analysis of the military nexus.
[99] The Crown submits that the level of commerciality in AC Davies’ offending is comparable to that of Sapper McCartin. The commercial aspects of Sapper McCartin’s offending included his involvement with three types of drugs, sourcing of cannabis above the statutory presumption for supply, and his willingness to supply one pill of MDMA on “tick”.34 The Court Martial Appeal Court concluded that others saw Sapper McCartin as a “source” and that he appeared to be a “bottom level, middleman type dealer”.35 By comparison, AC Davies was involved in three types of (more serious) drugs and was regarded as indiscriminate and prepared to offer to anyone interested. The value of the transactions alleged against AC Davies were approximately $600 and the Judge at Court Martial noted that the text communication suggested he had a “good little operation running”. His offending, like that of Sapper McCartin, was held to have involved “low- level commerciality” with people coming to him because they knew he had connections. Mr Winter notes again that the total value of all the transactions and the charges against AC Davies is around $580. There is no evidence of supply on “tick”. It is submitted the presence of a transaction involving an ounce of cannabis and a “tick” arrangement in McCartin elevate the commerciality of that case significantly beyond this one.
33 At [19].
34 At [18].
35 At [18].
[100] The final aspect to cover is that of AC Davies’ previous offending. At the time of sentencing on this matter, AC Davies was serving a sentence of community detention as a result of a conviction in the District Court on a charge of making an intimate visual recoding. Sapper McCartin, on the other hand, had no previous charges and had been performing satisfactorily.36 Mr Winter submits that AC Davies’ previous conviction cannot be considered to be an aggravating feature on any principled basis. He submits that offending of a significantly different nature would not justify a starting point uplift in the civilian jurisdiction. Rather, the position is submitted to be that AC Davies is not in a position to claim credit for previous good character and he did not attempt to do that.
Analysis
[101] The parties and Court below were agreed that the lead offending was that relating to the Class B drugs and, accordingly, AC Davies’ sentence appeal is to be determined by reference primarily to his offending in relation to the Class B controlled drugs. The quantity of drugs involved, combined with the lack of other factors suggesting commerciality, indicate that, in relation to offending of this type, his offending was of limited scope. While evidence was located in AC Davies’ barrack room and his offending involved other members of the military, it appears that neither he nor the other recipients of those drugs used them whilst on duty or on military property. As AC Davies’ previous conviction is of a different nature, it is irrelevant in terms of being an aggravating feature. It is our view that his offending cannot be said to be of more serious than that of Sapper McCartin. Accordingly, a sentence of 16 months’ imprisonment would be manifestly excessive in the circumstances.
[102] In exercising the obligation to achieve consistency, it is necessary to compare the facts of this case with the facts of McCartin. As is often the case, some of the facts are similar, some are more aggravating, and others point toward lower level offending.
[103] In terms of the similarities, both this case and McCartin involved relatively small- scale offending as a secondary or “street” dealer rather than as a primary or wholesale dealer. Both supplied or offered to supply more than one type of drug and both supplied or offered to supply to people within the service and outside it. We do not accept that it
36 At [14].
is a significant factor that the drugs that AC Davies supplied to service personnel appear to have been intended by them for use at parties or other venues unconnected with their service roles. Once the drugs are supplied to a service person, the supplier loses control over where or when they might end up being used.
[104] Another area of relative similarity is that both the appellant and Sapper McCartin had no relevant prior convictions that aggravated their personal circumstances. We reject the Crown suggestion that the conviction of AC Davies in the District Court for a completely unrelated offence is an aggravating matter. We accept that it means that he cannot claim credit of an unblemished record and that, of itself, distinguishes him in a negative way from Sapper McCartin, but there is no principled basis for regarding that as an aggravating feature.
[105] A matter where the position of AC Davies is more serious than that of Sapper McCartin is that a higher percentage of people he supplied or offered to supply were service personnel, although given that, like Sapper McCartin, he did not restrict his activities to other service personnel, while relevant, this is not a huge difference.
[106] Another factor is the extent and nature of the offending, in particular, the duration over which the offending occurred (12 months as compared to six weeks). This is a matter which is more serious than in AC Davies’ case.
[107] We reject the Crown’s suggestion that the commerciality involved with AC Davies was greater than that in McCartin. The total amounts of money involved were in the order of $580-$600 and, other than the presence of scales which could potentially indicate a commercial aspect, there was little indication of commerciality. There was no cash, the amounts and value of the drugs involved were very small and, unlike McCartin, there was no offering of drugs on “tick”. Overall, the commerciality involved with AC Davies was marginally less than that involved in McCartin.
[108] When all of these factors are balanced, we are of the view that, in terms of seriousness, AC Davies’ offending was broadly similar to that of Sapper McCartin. Our conclusion on this point forces us to consider how the end point of four months’ imprisonment in McCartin could be regarded as consistent with the end point reached in
this case of 16 months’ imprisonment (before the substitution of home detention is considered).
[109] Even allowing that the need for general deterrence may have increased since McCartin, it is impossible to rationalise the difference between four months’ imprisonment imposed in McCartin with the 16 months’ imprisonment end point referred to in this case, let alone the 21 months start point.
[110] If the only issue on appeal in this case related to the start or end point of imprisonment for these offences, we would be obliged to allow the appeal. However, the fact that a sentence of imprisonment was not imposed but a sentence of detention was substituted means that we have to consider whether such a sentence was available and, if available, whether it was appropriate.
Imprisonment as opposed to detention
[111]In imposing detention instead of imprisonment, the Court Martial held:
We have agonised over this sentencing. On the one hand imprisonment is warranted, on the other we do not accept that you are irredeemable. If we send you to prison, you will mix with other highly undesirable and more sophisticated offenders. Rehabilitation will very much take a second place, it is likely not to be put in place at all, and you will likely come out worse than you went in. That is not in society’s interests. Detention on the other hand is not a soft option but it carries with it the certainty that along with punishment, and punishment there will be, you will receive counselling and you will be taught skills that will be invaluable to you when you leave. We recognise however that detention carries with it benefits that imprisonment does not. We have taken that into account.
[112] The Crown submits that, in deciding to impose detention rather than imprisonment, the Court Martial placed too much weight on AC Davies’ personal circumstances, contrary to the Court of Appeal decision of R v Drever in which it was stated that minimal weight should properly be given to personal circumstances in the context of supply of Class B controlled drugs.37 The Crown submitted that the decision was also inconsistent with the need identified in McCartin for the sentence to deter the offender, and most importantly others, from similar offending in the future.
37 R v Drever (2003) 20 CRNZ 96 at [22].
[113] The Crown also submits that the Court Martial erred in placing too much weight on R v O’Leary, a sentencing decision from the civilian jurisdiction which resulted in an end sentence of 12 months’ home detention.38 It is submitted that, in doing so, the Court Martial failed to place sufficient weight on applicable cases from the military jurisdiction, in particular McCartin, as is required by the Sentencing Guidelines which provide that drug offending is “a major area in which comparisons with civilian sentences are of limited value”.
[114] In response to Mr Winter’s submission that AC Davies’ sentence of 12 months’ detention is manifestly excessive by reference to other cases and amounts to “about double the previous highest terms of detention”, the Crown does not dispute this, but rather argues that this bolsters its submission that his sentence should have been one of imprisonment. Far from being manifestly excessive, the Crown submits that AC Davies’ sentence is manifestly inadequate.
[115] The Crown submits that a term of imprisonment is the only sentence available to a Court Martial in cases of serious drug offending that can appropriately satisfy a situation where there is an overriding need for general deterrence. A short or relatively longer stay at SCE, with its different function and focus, can provide sufficient individual deterrence but does not provide the same general deterrence as a sentence of imprisonment. Accordingly, it is submitted that the Court Martial, having viewed AC Davies’ offending as serious and deterrence as paramount, rightly adopted a starting point of imprisonment. However, imprisonment should have been imposed as the end point sentence on the basis that it was the least restrictive outcome available to achieve the overriding principle of deterrence.
[116] While we accept that imprisonment will often be the appropriate sentence for even low-level drug related offending in the military, it is wrong to suggest that the decision in McCartin means that imprisonment is the inevitable result in all such cases and that detention is never available for a case such as this.
38 R v O’Leary [2016] NZHC 652.
[117] We therefore have to consider whether this is one of the rare cases where the applicable principles of sentencing discussed above can be met by a sentence of detention.
[118] The primary factor that appears to have influenced the court martial to come to what was obviously a difficult decision for them was the issue of rehabilitation. We accept that imprisonment would offer far less for AC Davies in terms of rehabilitation and may result in him returning to society changed for the worse rather than the better. We accept that there is a significant rehabilitative focus on detention. We also acknowledge that, generally, when sentencing on drug dealing offences, relatively little weight is given to an offender’s particular circumstances.
[119] However, there are a number of features in relation to the offending as well as the offender which we believe support a sentence of detention. The offending was, in terms of commerciality, at the lowest end of the scale. It was also offending which could realistically be described as naïve and unsophisticated. The openness of the text messages that counsel referred us to indicated none of the sophistication or subterfuge commonly encountered with those supplying or offering to supply drugs of the nature involved here.
[120] It is clear that AC Davies made little, if any, profit from these activities. AC Davies is of an age and background that make rehabilitation a much more realistic prospect than is often the case.
[121] LT Rowe, for the Crown, submitted to us that detention was no longer perceived as being the serious sentence that it might have been regarded as a decade or two ago. We are unable to accept this submission, and it is contrary to the analysis made of the sentence of detention by this Court in McCartin. It is different to imprisonment in the same way that home detention (which is available in the civilian courts but not the military courts) is different to imprisonment. Arguably, it is an even more restrictive and intrusive sentence than home detention.
[122] The real question is whether or not the term of detention imposed is sufficient to mark the gravity of the offending in this case with particular regard to the fact that
offending of this nature in a military context is significantly more serious than in a civilian context.
[123] We need to compare the final outcome in this case with McCartin to ensure consistency and also to cross-check with the sort of sentence that might have been imposed in a civilian court if there had not been a military aspect to this.
[124] If we accept the proposition that, when detention is substituted for imprisonment, it might be expected to be approximately twice as long, the 365 days’ detention imposed in this case equates to six months’ imprisonment. Six months’ imprisonment is substantially more than the four months imposed in McCartin. Therefore, the sentence is at least as severe as that imposed in McCartin. Cross-checking with a likely civilian sentence, a civilian defendant would likely be sentenced to something less than six months’ imprisonment. Home detention would also be among the available sentences.
[125] We note that 12 months’ detention is a substantially longer sentence of detention than has apparently been imposed previously. However, we accept that, because of the gravity of drug offending in the military, a sentence of this duration can be justified.
[126] Standing back and looking at the overall outcome rather than the method by which it has been reached, we concluded that a sentence of 365 days’ detention is neither manifestly excessive nor manifestly inadequate. We therefore dismiss AC Davies’ appeal and the appeal by the Crown to substitute a sentence of imprisonment.
AC Fairbank’s sentence appeal
[127] As noted above, AC Fairbank, along with being dismissed, was sentenced to 126 days’ (18 weeks) detention. His counsel, Mr Murray, argues that his sentence was manifestly excessive and that the Court Martial fell into error in the way it dealt with previous sentencing decisions. Although the Court below acknowledged various authorities, it was submitted that the starting point for AC Fairbank was arrived at without any reference to previous authority. Mr Murray accepts that there are some different considerations given the military context and that, while the charges AC Fairbank faces would not ordinarily attract custodial sentences in the civilian jurisdiction, the military overlay means that a custodial sentence of detention is appropriate. This issue is duration.
[128] In terms of comparable cases, Mr Murray submits that, while the offending in McCartin was commercial, AC Fairbank was not a source of multiple types of drugs, he did not dictate prices and was not perceived by others as a supplier. He was a potential conduit between AC Davies and others on two occasions, and an attempted user of drugs on one other. AC Davies was his only source. It is submitted that:
(a)None of the quantities of drug come near the presumption for supply in the Misuse of Drugs Act.
(b)There is no evidence that others saw AC Fairbank as a source. To the extent he was a middleman, it was only between AC Davies and others known to AC Fairbank. But for AC Davies, AC Fairbank did not have a source.
[129] As to other cases, Mr Murray accepts that none align completely with the facts in this case but submits that comparison is still available in order to demonstrate that AC Fairbank’s sentence was manifestly excessive.
[130] The first comparable case is said to be R v Brame in which the accused pleaded guilty to three charges, namely supply and offering to supply a psychoactive substance, and doing an act likely to prejudice service discipline.39 The supply led to a very public and damaging event, with considerable media coverage as a consequence of the affected soldiers’ behaviour. Mr Murray submits that there was a clearly aggravating service- related overtone to this case. The Court Martial imposed a final sentence of 90 days’ detention for three charges involving the supply of a psychoactive substance, an offence then carrying a maximum penalty of two years’ imprisonment. Mr Murray submits that Brame is arguably more serious that AC Fairbank’s case, even taking into account that it was a psychoactive substances case, as there was actual supply by Brame to a number of his comrades and quite severe outcomes as a consequence of their consumption.40 The Crown, however, submits that, while the offer to supply MDMA places AC Fairbank’s offending at the lower end of the spectrum for supply-related Class B drug offending, the
39 R v Brame Court Martial 2204, 17 February 2016.
40 This was before the reclassification of NBOMe as a controlled drug.
fact that it is an offence carrying a maximum penalty of 14 years’ imprisonment elevates it slightly above the offending in Brame. We accept that submission.
[131] The second case said to be comparable is R v Russell in which the accused pleaded guilty to five charges relating to using, possessing and supplying a mixture of cannabis and cannabis oil.41 The offending occurred in the accused’s barrack room, with admissions made of drug offending over a three-month period. The accused cooperated with the authorities, acknowledged that he had a drug problem, and there was evidence indicating a possible psychological disorder as a causative factor in the offender’s drug dependency, including post-traumatic stress disorder brought on by witnessing his girlfriend’s attempted suicide. Along with being dismissed from Her Majesty’s Service, Russell was sentenced to 21 days’ detention. The Crown acknowledges that Russell has a number of similarities but submits that the compelling mitigating circumstances in Russell are not present in AC Fairbank’s case.
[132] Finally, Mr Murray cites a connected series of cases: R v Clough,42 R v Jones43 and R v Ngataki.44 In Clough, the accused, having pleaded guilty to nine charges relating to procuring, using, and possessing cannabis plant and utensils, along with one charge of fraudulently misapplying Service property, was sentenced to 60 days’ detention and dismissed from Her Majesty’s Service. In Jones, the accused pleaded guilty to five charges relating to procuring, using, and possessing cannabis plant and utensils. He was sentenced to 60 days’ detention, but was not dismissed from Her Majesty’s Service. In Ngataki, the accused pleaded guilty to selling and smoking cannabis plant. She was sentenced to 80 days’ detention and dismissed from Her Majesty’s Service.
[133] While the accused in Jones was not dismissed, Mr Murray submits that the offending in these three cases is more serious than in the case of AC Fairbank. In Clough and Jones, there was drug offending at Linton Military Camp, including the use and procurement of cannabis from other soldiers and the possession of significant amounts of cannabis with the logical inference that it was not one-off offending. In Ngataki, a commercial element can be inferred in that the accused sold rather than supplied cannabis
41 R v Russell Court Martial 2092, 3 December 1997.
42 R v Clough Court Martial 2131, 12 March 2002.
43 R v Jones Court Martial 2130, 18-19 March 2002.
44 R v Ngataki Court Martial 2133, 21 March 2002
to another soldier. Despite this, the sentence imposed on AC Fairbank is significantly and disproportionately greater than in these three cases. The Crown, however, notes that the offending in these cases all involved Class C controlled drugs, with only Ngataki involving supply.
[134] Mr Murray submits that, referring to these similar past cases, a sentence of eight weeks’ (or 56 days’) detention would appropriately meet AC Fairbank’s culpability and would be more consistent with past sentencing decisions.
[135] The Crown, however, submits that, based on these authorities, a starting point of 26 weeks (182 days) was appropriate to reflect the nature of the drug in question, together with the number of charges. The final sentence of 126 days is, it is submitted, lenient with regard to the offending in question in Ngataki and Brame. Had the final sentence been less than 26 weeks’ detention, it would have been manifestly inadequate.
[136] It is our view that the various cases relied upon by Mr Murray are poor comparators to this case. Each of them have significant distinguishing features which place them at a lower level of gravity than that of AC Fairbank. Brame related to a psychoactive substance rather than a Class B drug. At that stage, this offence only carried a maximum penalty of two years’ imprisonment. This can be compared to the maximum penalty of 14 years’ imprisonment for AC Fairbank’s offending.
[137] Russell had highly unusual mitigating factors not present in AC Fairbank’s case and also involved cannabis or cannabis oil offending.
[138] Clough, Jones and Ngataki also involved cannabis related offending which, even allowing for the additional charge of fraudulently mis-applying Service property in Clough and the element of commerciality in Ngataki were all less serious than the case here.
[139] Accordingly, we are unable to accept Mr Murray’s submission that, when compared with these cases, AC Fairbank’s sentence could have said to be manifestly excessive.
[140] We do accept that, when compared with the cases relied upon by Mr Murray, the sentence could be regarded as being at the higher end. We are satisfied, however, that it was within the range available.
[141] We also note that the Crown in this case accepted that detention was an available remedy notwithstanding the drug dealing nature of the offending. This concession somewhat undermined their submission in relation to AC Davies to the effect that detention was never appropriate in cases of this nature. However, it is consistent with the view we expressed that there will be cases of this nature where, from time to time, detention will be an appropriate outcome.
[142]For these reasons, AC Fairbank’s appeal is dismissed.
Result
[143]For the reasons given above:
(a)the conviction appeal is dismissed; and
(b)both sentence appeals are dismissed.
Churchman J Judge Billington QC Judge McGregor
Solicitors:
WinterWoods Lawyers, Palmerston North for AC Davies
P L Murray, Barrister and Solicitor, Palmerston North for AC Fairbank
AD Military Prosecution, New Zealand Defence Force, Wellington for Crown
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