Fleming v R
[2011] NZCA 646
•15 December 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA300/2011 [2011] NZCA 646 |
| BETWEEN GLEN ALEXANDER FLEMING |
| AND THE QUEEN |
| Hearing: 12 September 2011 |
| Court: Randerson, MacKenzie and Asher JJ |
| Counsel: E P Leary for Appellant |
| Judgment: 15 December 2011 at 11.30 a.m. |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed and the minimum term of four years imprisonment imposed is quashed.
B The sentence of eight years imprisonment is confirmed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
On 19 April 2011 the appellant Glen Alexander Fleming was sentenced in the Rotorua High Court by Woolford J on one charge of manufacturing methamphetamine, one charge of possession of methamphetamine for supply, seven charges of possession of equipment or precursor substances with intent to manufacture methamphetamine and three charges of unlawful possession of a firearm.[1] The lead charge was manufacturing methamphetamine. It was charged that he had done so over a period of almost nine months.
[1] R v Glen Alexander Fleming HC Rotorua CRI-2010-63-5079, 19 April 2011.
Woolford J reached a final starting point for the totality of the offending of 12 years imprisonment. He deducted 25 per cent for Mr Fleming’s guilty pleas. He applied a further deduction for Mr Fleming’s remorse, which the Judge believed was genuine, his offer of assistance to the Police and his commitment to obtain treatment, the total discount applied being one-third. He sentenced him to eight years imprisonment. He also determined that a minimum term of imprisonment was necessary and imposed a minimum term of 50 per cent, or four years imprisonment.
Background
Mr Fleming was almost 33 years old. He was a long term methamphetamine addict. When, on 20 September 2010, Police executed a search warrant at his home, they found equipment used in the manufacture of methamphetamine. This included beakers and flasks, measuring equipment, gas stoves, other heating devices, a pH meter and funnels. They also located three Parr bombs, which are high pressure reaction vessels. These provide a dangerous but quick method of manufacturing large quantities of methamphetamine. Also located were a number of precursor substances including iodine, caustic soda, acetone and various acids. In total 61.9 grams of methamphetamine in several containers was recovered, $180,640 in cash, two rifles, a pistol and ammunition. Later in the day Police executed a second search warrant at a storage facility rented by Mr Fleming and found more equipment used in the manufacture of methamphetamine.
The Judge accepted that up to 375 grams of methamphetamine could have been manufactured during the relevant period. When spoken to, Mr Fleming admitted to manufacturing methamphetamine at the address on a regular basis for about seven years. He was charged with one representative count alleging the manufacture of methamphetamine between 1 January 2010 and 20 September 2010.
On sentencing the Court received both a pre-sentence report and a psychiatric report. The pre-sentence report was not particularly positive, although the Community Probation Service assessment tool calculated Mr Fleming’s risk of re-offending as low. However, the psychiatric report from Dr Peter Dean was considerably more positive. It recorded that Mr Fleming came from a good background and had had a reasonable work record until he fell into methamphetamine addiction. Mr Fleming considered his arrest to be a good thing as it would give him an opportunity to break his habit and start afresh. The psychiatrist recorded his opinion that Mr Fleming had a good chance of responding to treatment programmes because he had a high level of motivation to change.
The Judge accepted that although he was manufacturing large quantities of methamphetamine and being paid considerable amounts of money, his predominant drive was to provide for his own habit. He considered that he would benefit from treatment programmes. There was a letter before the Court confirming Mr Fleming’s acceptance to the Hanmer Clinic, Tauranga on his release from prison, and testimonials as to his good character.
Mr Fleming appeals the sentence of eight years imprisonment claiming that it was manifestly excessive. He also appeals against the imposition of a minimum term. There is no challenge to the starting point of 11 years on the lead offence of manufacturing, uplifted by one year to reflect the totality of the offending to reach a final starting point of 12 years imprisonment. Mr Leary for Mr Fleming raised three points, arguing that the Judge erred in law by:
(a)Failing to apply the proper discount for Mr Fleming’s guilty pleas;
(b)Failing to apply the proper discount for his genuine remorse, offer of assistance to the Police and commitment to obtain drug addiction treatment; and
(c)Imposing a 50 per cent minimum term of imprisonment.
The discount issue
We do not accept Mr Leary’s submission that there was a significant discount available for Mr Fleming’s offer of assistance. While that offer of assistance appears to have been sincere, he did not in fact provide information that was of assistance. As Ms Jelas for the Crown pointed out, he did not offer to identify his co-offenders, suppliers or customers.
Mr Fleming pleaded guilty when the Court of Appeal decision in Hessell v R[2] applied (Hessell (CA)). That decision prescribed a maximum reduction of one-third for a guilty plea entered at the first reasonable opportunity. In line with then current practice, non-exceptional remorse did not justify a discrete discount. By the time Mr Fleming was sentenced the Supreme Court had issued its decision in Hessell v R[3] (Hessell (SC)). The Court in that case held that the reduction for a guilty plea component should not exceed 25 per cent. That upper limit reflected the fact that sentencing credit for remorse was held to be properly given separately from that for the plea, a change of approach.
[2] Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.
[3] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
In accordance with Hessell (SC) the Judge applied a 25 per cent discount. Both counsel now agree Mr Fleming was entitled to rely on whichever of those two decisions afforded him the greater discount.[4]
[4] See Vaine v R [2011] NZCA 283 at [33].
The total discount given by Woolford J was one-third. The guilty plea component was 25 per cent. The additional eight per cent was for Mr Fleming’s remorse, which he believed was genuine, his offer of assistance to the Police and his commitment to obtain treatment. We agree with the Judge’s assessment of the genuineness of Mr Fleming’s remorse. On arrest he had immediately confessed to manufacturing methamphetamine for the past seven years. He had with apparent sincerity expressed relief that he had been apprehended. He undoubtedly was suffering from serious methamphetamine addiction. He had been unable to terminate his methamphetamine habit up to the time of his arrest. Since then he appears to have seized the opportunity provided by his enforced incarceration to terminate the habit and re-start his life, as is confirmed by the psychiatric report. The further discount was entirely warranted.
But we do not consider that Mr Fleming’s remorse would have required a discrete discount under Hessell (CA) nor that the quantum of any additional discount he may have received for his offer of assistance to the Police and his commitment to obtain treatment warrants appellate intervention. The offer of assistance did not bear fruit, and the commitment to rehabilitation was, after all, a personal circumstance, which generally carries little weight in sentencing for serious, drug related offending given the vital need for denunciation and deterrence.[5] It was a factor that was likely to be seen as falling within the allowance for remorse inherent in the Hessell (CA) one-third discount.
[5] See Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174].
Thus, we are not satisfied that the end sentence reached by the Judge was wrong. The starting point was acceptable and the discount of one-third within the range. This disposes of Mr Leary’s first two submissions.
The minimum term of imprisonment
At the sentencing in the High Court Mr Leary filed submissions for Mr Fleming in advance of the Crown submissions being filed. In those submissions he briefly addressed the question of a minimum term of imprisonment and submitted that no term should be imposed. The Crown did not address the question of a minimum term of imprisonment in its written submissions. During the course of the hearing neither counsel mentioned the question of a minimum term of imprisonment, and that matter was not raised by the Judge.
However, when he delivered his sentencing decision the Judge did impose a minimum term of imprisonment. He considered that the minimum period otherwise applicable would be insufficient to meet the purposes of accountability, denunciation, deterrence and/or protection of the community, as required by s 86(2) of the Sentencing Act 2002. He relied on R v Wong[6] for the proposition that in cases of very serious drug offending, while the Court’s discretion will never be fettered, it will be almost invariable that the criteria for a minimum term will be made out. He acknowledged that a minimum period of imprisonment might not be required for the personal deterrence of Mr Fleming, but took the view that it was required for the purposes of general deterrence and denunciation. The term imposed was 50 per cent.
[6] R v Wong [2009] NZCA 332.
The Judge did not warn Mr Leary in the course of submissions that despite the lack of any Crown submissions on the point he was considering a minimum term of imprisonment. Mr Leary was entitled to assume in the absence of a Crown submission or a reference from the Judge that there was no risk of a minimum term of imprisonment being imposed. If he had been put on notice that a minimum term was being considered, we have no doubt that he would have made additional submissions tailored to respond to whatever reasons were being put forward for the minimum term. Those submissions could have been persuasive. In those circumstances we consider that there was a risk of injustice in the Judge imposing a minimum term of imprisonment, without being invited to do so by the Crown and without giving Mr Fleming’s counsel, in the course of oral submissions, the opportunity to address the point.[7]
[7] See Byford v R [2011] NZCA 316 at [25] and R v Potae [2007] NZCA 539 at [7].
As acknowledged by the Crown, the failure to afford a defendant a full opportunity to be heard may require an appellate Court to consider the matter de novo.[8] In these circumstances we consider it necessary to approach the question of a minimum term afresh, in light of the submissions we have now heard from both the Crown and Mr Leary, and to ourselves determine whether a minimum term was necessary.
Should there be a minimum term of imprisonment?
[8] R v Grant [2009] NZCA 266 at [19]; R v Boyd CA89/03, 24 June 2003 at [16].
We have noted that the starting point reached by Woolford J of 12 years imprisonment was not challenged, and rightly so. This was a manufacturing operation of some sophistication, capable of producing considerable quantities of methamphetamine. The presence of the high pressure reaction vessels known as Parr bombs and the amount of cash recovered were particular features. The firearms charges, involving three guns, added to the overall culpability.
R v Wong, in which a minimum term was imposed and upheld, involved considerably more serious drug related offending than here.[9] The appellant in R v Wong travelled to New Zealand to receive two kilograms of methamphetamine from Canada. His was the role of “catcher”, equivalent to a manager or organiser. The offending fell within band four of R v Fatu.[10]A starting point of 15 years imprisonment was upheld.
[9] R v Wong [2009] NZCA 332.
[10] R v Fatu [2006] 2 NZLR 72 (CA).
This Court in R v Wong confirmed that in cases of very serious drug offending, while the Court’s discretion will never be fettered, it will be almost invariable that the criteria for a minimum term will be made out, citing its earlier decision in R v Anslow.[11] It is illustrative that in that latter case this Court observed, having surveyed 71 sentencing decisions, that minimum periods of imprisonment had seldom been ordered for drug related offending when the finite term had been less than nine years imprisonment, but had been commonly imposed when the finite term had been nine years or greater.[12] That demarcation gives some indication as to when drug related offending will fall into the “very serious” category in which a minimum term is almost inevitable.
[11] R v Anslow CA182/05, 18 November 2005.
[12] At [27]. See also R v Zhou [2009] NZCA 365 at [18].
The offending in this case was not in that order of seriousness. The quantity of methamphetamine involved was much less. It was rightly categorised as at the highest end of band two or the lower end of band three. The manufacture was driven to a very considerable extent by Mr Fleming’s need to meet his own habit. This offending could not be placed in the “very serious” category. There was less need for denunciation and deterrence than in R v Wong. Moreover, the harm done to the wider community by manufacturing this quantity of methamphetamine was less than might usually be the case because the paramount purpose of the manufacturing was Mr Fleming’s personal use and he undoubtedly did use a lot of the product.
As part of the consideration under s 86(2)(c) of whether it is necessary to impose a minimum term to deter the offender and under s 86(2)(d) of whether it is necessary to impose a minimum term to protect the community from the offender, factors personal to the offender can be considered to the extent that they are relevant to those purposes.[13] Mr Fleming displayed genuine remorse about his offending. It was his own confession which revealed the extent of his prior offending over seven years and enabled the Police to charge him over a period extending beyond the time of arrest. The psychiatrist’s report indicates that there is a real prospect of his rehabilitation. He has expressed a strong wish, which is judged sincere, to undergo a course of rehabilitation. These factors all meant that under s 86(2) there was less of a need than might be expected for deterrence and protection of the community.
[13] R v Walsh (2005) 21 CRNZ 946 (CA) at [19]–[28]; R v Nguyen [2009] NZCA 239 at [33].
These factors lead us to the conclusion that no minimum term was warranted for this offending.
Mr Leary for the appellant also submitted that it is the current practice for the Department of Corrections to postpone drug and alcohol rehabilitation courses for long term prisoners until they are eligible for parole. With the minimum term imposed for Mr Fleming that will be four years by which time his ability to rehabilitate is likely to be reduced. We have received further submissions on this topic from counsel and an affidavit of Roger Brooking, who has expertise in assessing alcohol and drug dependent offenders. These appear to confirm Mr Leary’s submission. It is not necessary for us to determine the issue, given our decision that a minimum term is not appropriate. It is sufficient to observe that, in our view, an important consideration for Mr Fleming is that any rehabilitative programme should be undertaken sooner rather than later. The wider issue of the availability of rehabilitation programmes in prison for drug offenders and the timing of such programmes is a matter of importance and some public controversy, as evidenced by Mr Brooking's recent publication on this subject. We express no view on this issue, but we invite the Department of Corrections to consider it. It is important that the Department's policies on this issue be known to sentencing judges so they may be taken into account as appropriate in sentencing decisions. We direct the Registrar to send a copy of this judgment and Mr Brooking's affidavit to the Chief Executive of the Department of Corrections for consideration.
Summary
The sentence of eight years imprisonment is confirmed. However, the appeal against sentence is allowed and the minimum term of four years imprisonment imposed is quashed.
Solicitors:
Crown Law Office, Wellington for Respondent.
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