Fitzgerald v R
[2012] NZCA 558
•4 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA520/2012 [2012] NZCA 558 |
| BETWEEN TE MANAWANUI FITZGERALD |
| AND THE QUEEN |
| Hearing: 19 November 2012 |
| Court: White, Miller and Asher JJ |
| Counsel: P E Dacre for Appellant |
| Judgment: 4 December 2012 at 11.00 am |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
B The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Introduction
Ms Fitzgerald appeals against sentence,[1] saying that the starting point of four years adopted in the District Court for the lead offences, which involved cannabis dealing, was increased by too much – two years and six months – for related offending, which involved offering class A and B drugs and attempting to pervert the course of justice.
The offending
[1]R v Fitzgerald DC Napier CRI-2011-041-2158, 17 July 2012.
There were three principal offenders: Ms Fitzgerald, her partner Gary Tuhi, and her father Thomas Houkamau. Over a seven month period the Police intercepted many communications which established that the three were running a vigorous cannabis dealing operation. Mr Houkamau (who has yet to stand trial) is said to have grown or sourced most of the cannabis, while the other two were responsible for selling it. Over the seven months they sold and offered to sell more than $100,000 worth. On arrest 70 plants were found growing at one of the addresses they used. The cannabis charges involved sale, offering for sale, cultivation, possession for sale and importation of cannabis seed. Ms Fitzgerald and Mr Tuhi pleaded guilty to all of these charges, and to participation in an organised criminal group. There is no challenge to Judge Rea’s starting point of four years imprisonment.
Intercepted text messages revealed that Ms Fitzgerald offered the class A drug LSD for sale on numerous occasions – the summary of facts suggests at least five – and the class B drug ecstasy twice. She pleaded guilty to offering both drugs for supply. The LSD charge was representative. But her instructions to counsel were that she deceived the buyers by actually supplying party pills which she had purchased lawfully some time earlier. The Crown offered no evidence on charges of supplying ecstasy and LSD, accepting that it could not prove that she actually supplied those drugs. The starting point was increased by 12 months for the offering charges.
The Police found two firearms and 10 rounds of ammunition when searching the property of Ms Fitzgerald and Mr Tuhi. She was the only one home, and she alone was charged with unlawful possession of these items. She and Mr Tuhi arranged for a gang prospect to falsely claim ownership, which led to the charge against her being dropped. However, text messages came to light revealing both that Mr Tuhi owned the firearms and that Ms Fitzgerald had played an instrumental part in the attempt to pervert the course of justice. Mr Tuhi ultimately accepted full responsibility for the firearms offending. They both pleaded guilty to attempting to pervert the course of justice. The uplift for this offence was 18 months.
The sentencing
The overall starting point for Ms Fitzgerald’s offending was six years and six months imprisonment. In selecting it, the Judge found her and Mr Tuhi equally culpable for the cannabis offending and the attempt to pervert the course of justice. With respect to the cannabis offending, he observed that the two offenders were doing all they could to maximise the amount of money they could make.
With respect to the offering to supply charges, the Judge made the following observations:
[3] ... you were prepared as well to offer to sell the Class B drug Ecstasy and the Class A drug LSD.
[4] ... You were not shy about delving into drugs generally and Class A and B drugs where it suited you so you really are not in a position to take any moral high ground in relation to what has happened here.
[11] ... You were prepared to involve yourself in the sale and distribution of Class A and B drugs ...
With respect to the charge of attempting to pervert the course of justice, the Judge said:
[5] ... Mr Jensen puts it on the basis that you are very much a secondary offender to Mr Tuhi in that regard, that you were doing his bidding, however, I find it hard to differentiate between the roles that each of you played. At the time this was done you were the one who was charged with these firearms [offences]. You did what you could to get out of that by having somebody falsely declare that they were the proper owner, not only so Mr Tuhi could avoid the responsibility for it but so you could as well and as has been said many times, that sort of behaviour strikes at the very heart of the justice system in a sense that introduces a great deal of untruthfulness and fraud into the whole process and you facilitated that.
Ms Fitzgerald has five previous cannabis-related convictions, one for offending in 2003 and four for offending in 2007. The Judge noted these but did not add anything for them.
In mitigation, the Judge gave her a full 25 per cent discount for her guilty pleas. He also reduced the sentence by a further six months for her personal circumstances, accepting that since being remanded in custody she had shown herself an intelligent and capable person with prospects of rehabilitation.
The end sentence was four years six months imprisonment. The Judge imposed that sentence on all the drugs charges, with a concurrent sentence of two years imprisonment for attempting to pervert the course of justice. Mr Tuhi’s end sentence was five years seven months imprisonment.
The uplift for offering to supply
In his written submissions Mr Dacre argued that the Judge was wrong to characterise Ms Fitzgerald as willing to involve herself in the sale of Class A and B drugs; she actually attempted to defraud her customers by selling them party pills.
Offering to supply a class A or B drug attracts a maximum sentence of life and 14 years imprisonment respectively.[2] That reflects the purpose of suppressing not only trafficking in drugs but also the demand which offering them can stimulate.[3] If an offer could not have resulted in the actual supply of controlled drugs, that is a material fact in sentencing. But even in such a case a starting point of 10–18 months is available.[4] In this case there were two charges, one representative, and sales were consummated, albeit the Crown could not prove that Ms Fitzgerald supplied what she promised. The starting point chosen here was readily available even if one assumes that she did not think she was actually selling Class A or B drugs. The point which we think the Judge was making was simply that she was prepared to sell whatever she could.
The uplift for attempting to pervert the course of justice
[2] Misuse of Drugs Act 1975, s 6(2).
[3] R v Brown [1978] 2 NZLR 174 (CA) at 180.
[4]R v Brown; R v Kearns HC Auckland CRI-2007-004-17810, 30 September 2008; R v Paul HC Auckland CRI-2006-057-1, 20 June 2006; R v Wilson HC Auckland CRI-2006-404-294, 17 April 2007.
Mr Dacre argued that the Judge ought to have distinguished between the roles of Ms Fitzgerald and Mr Tuhi, who was the more culpable offender. The firearms were his. While Ms Fitzgerald was involved, the texts show she was urging Mr Tuhi to take responsibility, as he eventually did.
However, having been charged with possession of the firearms, Ms Fitzgerald took active steps to have the gang prospect claim ownership of them, to excuse both herself and Mr Tuhi. She persisted in this over a period of some months. Only later did she urge Mr Tuhi to take responsibility. Mr Tuhi was the owner, but he was separately convicted of unlawful possession. So far as the attempt to pervert the course of justice is concerned, it was open to the Judge to regard both offenders as equally culpable.
Attempts to pervert the course of justice usually attract a moderately lengthy term of imprisonment.[5] A cumulative sentence is usually appropriate, and starting points commonly fall within the range of 18 months to three years imprisonment. Accordingly, the 18 month uplift was not manifestly excessive.
Totality and overall assessment
[5]R v Churchward CA439/105, 2 March 2006; R v Hillman [2005] 2 NZLR 681 (CA); R v Clutterbuck CA372/99, 17 November 1999.
The appellate question is of course whether the end sentence is manifestly excessive. When making that assessment it is necessary to consider the totality of the offending and the approach taken to personal aggravating factors and mitigating factors. Mr Dacre argued that there was no explicit allowance for totality, and that the end sentence was manifestly excessive.
We accept that the Judge did not refer expressly to totality, but as counsel responsibly accepted he appears to have allowed it to influence the uplifts. For example, the uplift in the starting point for perverting the course of justice was 18 months but the sentence ultimately imposed was a concurrent sentence of two years imprisonment. But for totality, higher starting points might have been adopted for the non-cannabis offending. The Judge might also have increased the starting point by several months for her previous cannabis offending.
Further, Ms Fitzgerald had been arrested and charged on 1 March 2011 and committed for trial on 1 November 2011. She pleaded guilty to most of the charges in February 2012. We accept that some charges were dropped during negotiations with the Crown, but most were not. So the 25 per cent discount for the guilty pleas was generous, particularly when the strength of the prosecution case is recognised.
Mr Marshall also argued that the discount of six months for personal circumstances was generous, for personal circumstances are a secondary consideration in cases of commercial drug dealing. While that principle is well settled, it does not preclude allowances for personal circumstances and prospects of rehabilitation. The Judge could not have been criticised had he made a larger allowance in this case, for Ms Fitzgerald had demonstrated strong prospects of rehabilitation since her arrest. Mr Dacre provided us with an updated curriculum vitae which confirms that she has made the most of her time in custody, becoming a Christian, completing a range of courses, and acquiring a cleaning job in her wing. These commendable achievements will undoubtedly assist her when she first appears before the Parole Board.
Overall, we are not persuaded that the sentence was manifestly excessive.
Decision
The application for an extension of time is granted, but the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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