Frewer v The Queen
[2012] NZCA 29
•23 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA445/2011 [2012] NZCA 29 |
| BETWEEN MATTHEW FREWER |
| AND THE QUEEN |
| Hearing: 16 February 2012 |
| Court: Stevens, Ronald Young and Andrews JJ |
| Counsel: P J Kaye for Appellant |
| Judgment: 23 February 2012 at 3.00 pm |
JUDGMENT OF THE COURT
A The appeal is allowed in part.
BThe sentence of eight years and nine months is quashed and a sentence of eight years and seven months is imposed. The appellant is to serve a minimum period of imprisonment of four years and two months.
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REASONS OF THE COURT
(Given by Stevens J)
Introduction
The appellant, Mr Frewer, pleaded guilty to three counts of supply of a Class B controlled drug, namely MDMA. In the High Court Venning J sentenced him to eight years, nine months imprisonment with a minimum period of imprisonment of four years, three months.[1] The appellant appeals against this sentence on the basis that it is manifestly excessive. The appeal is based on four grounds. The first is the correctness of the initial starting point. The second is whether a sufficient discount was given for time spent on electronically monitored (EM) bail. The third is the level of discount for the guilty pleas. The final issue concerns the imposition of a minimum period of imprisonment.
Factual background
[1]R v Frewer HC Auckland CRI-2009-404-384, 24 June 2011.
The appellant was involved with a group that imported and distributed MDMA in New Zealand. The appellant was a principal wholesaler with responsibilities for receiving and delivering MDMA and taking payment. The Judge found he was an integral and important part of the group but not the mastermind behind the operation.[2] He was described as “effectively a principal wholesaler” who on-sold or supplied drugs to three other “main wholesalers”, Messrs Keown, Bowyer and Voerman.[3]
[2]At [17].
[3] At [17] and [10].
Between 4 March and 15 April 2008 the police intercepted certain conversations of the appellant. Shortly prior to trial the appellant pleaded guilty to confirmed sales of approximately 29,000 MDMA tablets. The value on a wholesale basis of those sales exceeded $600,000.
During the course of their investigations, the police also uncovered evidence of sums of cash in safety deposit boxes at a vault operated by the appellant. Between 9 April 2008 and 22 July 2008 total sums of USD 300,000 and NZD 785,550 were located as a result of search warrants executed at the vault. This money was to be remitted to those in control of the operation.
Sentencing
In the High Court the Judge adopted a starting point of 11½ years imprisonment. In reaching that finding Venning J had regard to the decision of this Court in R v Wallace[4] and to the submissions of counsel. The offending by the appellant was seen as more serious and at a higher level than that of co-offenders such as Mr Keown and Mr Voerman.
[4]R v Wallace [1999] 3 NZLR 159.
Venning J considered that there were no personal aggravating factors.[5] There were, however, a number of mitigating factors. These were: a lack of previous convictions, support of family and friends, willingness to assist another prisoner with drug addiction, assistance with volunteer work, a positive pre-sentence report, insight into the offending, and genuine remorse. The Judge applied a reduction of 18 months for these mitigating factors.[6] Significantly, the Judge did not explicitly refer to the time (around one year) the appellant spent on restrictive conditions of electronically monitored bail.
[5]At [20].
[6]At [22].
Venning J then dealt with the early guilty pleas. As the guilty pleas were entered a week or so prior to trial, the Judge allowed a discount of 15 months (that is, 12 and a half per cent) [7].
[7]At [22].
On the question of a minimum sentence of imprisonment, Venning J noted that R v Anslow suggests that in cases of serious drug offending where the lead sentence is around nine years a minimum period will be required to uphold the principles of the Act.[8] The Judge considered that a minimum non-parole period was necessary properly to hold the defendant to account for the harm done to the community and to denounce the conduct. For this reason a minimum period of imprisonment of four years and three months was imposed.
Submissions and discussion
Starting point
[8]R v Anslow CA182/05, 18 November 2005 at [27].
For the appellant, Mr Kaye submitted that the starting point of 11½ years imprisonment was manifestly excessive. An alternative starting point of ten years was suggested. Mr Kaye accepted that before Venning J the appellant’s then counsel had argued for a starting point of between ten and 12 years.[9]
[9] At [18].
Mr Kaye contended that R v De Bruin[10] (13 year starting point) is distinguishable on the basis that the offending in that case took place over a longer period of time and involved a greater personal benefit. He submitted that R v McGaw (nine year starting point) is a better comparator.[11] He also submitted that the starting point was inconsistent with that chosen for the appellant’s co-offenders. Particular attention was drawn to the sentence of Mr Voerman, a second-tier wholesale distributor, whose case was deemed to warrant a starting point of seven years.
[10] R v De Bruin HC Auckland CRI-2005-404-342, 9 August 2006.
[11]R v McGaw (2000) 18 CRNZ 236 (HC).
We do not consider that the Judge made any error in the starting point. We agree with the submission of Mr Lillico for the respondent that the chosen starting point sits appropriately between that in McGaw (nine years) and De Bruin (13 years). We agree that there are features present here that demonstrate that the offending is more serious than McGaw. Not only was the value of the MDMA supplied much greater (even on a wholesale basis) but also the appellant was rightly treated as a principal wholesaler. The amounts of money controlled by the appellant (comprising totals of USD 300,000 and NZD 785,550) illustrate the size and scope of this large drug supply operation, as well as the appellant’s role in it. We have no doubt that these factors may be taken into account when assessing the overall seriousness of the offending. [12]
[12]In R v Wallace, this Court commented: “Offenders are to be sentenced only for proved offending. ... [that] does not mean that evidence of past dealing must be ignored merely because the precise quantities cannot be proved nor does it mean that the conduct of the offender is not be assessed in its overall context.” (at [25]).
Neither is there anything in the related point that the starting point was too high when considered alongside the starting points taken for the appellant’s co-offenders. Mr Kaye relied on the starting points for the three main wholesalers or middlemen to whom the appellant supplied MDMA.[13] But the variations are easily explained by the differences in their respective roles and other factors.
[13]A starting point of seven years was adopted for Mr Keown: R v Keown HC Christchurch CRI‑2010-409-56, 20 May 2010. Mr Voerman had a starting point of seven years: R v Voerman HC Auckland CRI‑2008-004-16711, 4 September 2009. Mr Bowyer’s starting point was five years and six months imprisonment: R v Bowyer HC Auckland CRI-2009-404-384, 6 October 2011.
The first argument cannot succeed.
Time on EM bail
There is no dispute that the appellant spent approximately one year on remand on extremely restrictive conditions of EM bail. Mr Kaye submitted that the Judge gave no express discount for this factor. He submitted there should have been a specific allowance for the restrictive conditions of bail to which the appellant was subject over a lengthy period. He cited Purua v R,[14] where this Court upheld a discount of six months to reflect 22 months spent on EM bail, and Schuster v R,[15] where this Court applied a discount of three months to reflect eight months on EM bail.
[14] Purua v R [2011] NZCA 489 at [9] to [11].
[15] Schuster v R [2011] NZCA 343 at [12].
Mr Lillico did not dispute that some allowance for restrictive conditions of bail is consistent with authority in this Court.[16] But the question was whether the Judge had in fact, when allowing a discount of 18 months from the starting point, taken this factor into account. Counsel noted the Judge’s statement “I also acknowledge the conditions you have been under …”.[17] But he accepted that it was unclear whether this was a reference to restrictive conditions of EM bail. The context does not necessarily support that.
[16] The cases are discussed in R v Keown [2010] NZCA 492 at [7].
[17] At [21].
Given the lack of certainty as to whether an allowance for time on EM bail was in fact given, we need to ensure that the appellant is not disadvantaged. We therefore consider it appropriate to make an additional allowance to take account of the possibility that no specific allowance was in fact made. We would therefore, as invited to do by Mr Kaye, make an additional allowance of two months imprisonment.
As we propose to make no further adjustment, that would give a final sentence of imprisonment of eight years and seven months. We will also make a consequential adjustment to the minimum period of imprisonment as described below.
Guilty pleas
Mr Kaye submitted that the discount of 15 months for the guilty pleas was insufficient. Mr Kaye pointed to various factors that resulted in the guilty pleas being delayed including an outstanding challenge to the legality of the search warrants. This application was twice adjourned and counsel put the delay at the feet of the Crown. Mr Kaye submitted that a full evaluation of the circumstances would have resulted in a greater discount being applied by the Judge.
We disagree. By any standard a plea of guilty entered one week before trial is aptly seen as late. We note that the case against the appellant was viewed by the Judge as being “overwhelming”.[18] It is clear that any factors relating to the delayed pre-trial applications were taken into account by the Judge. Had he not done so, the discount for the guilty pleas would have been much lower.
[18]At [22].
This ground of appeal must fail.
Minimum period of imprisonment
Mr Kaye submitted that the Judge erred in imposing a minimum period of imprisonment. He submitted that given that the term imposed on the appellant was under the level of nine years referred to by this Court in R v Anslow, no minimum period of imprisonment was required. He further submitted that there was less need for deterrence and protection of the community, given that the appellant had displayed remorse about his offending and is likely to face deportation at the end of his sentence.
Mr Lillico acknowledged that the requirement for personal deterrence was lower in this case because of the appellant’s remorse and likely deportation. However, he submitted that a minimum period is appropriate due to the requirement for accountability, denunciation and general deterrence. He cited the decision of this Court in R v Wang.[19] There a minimum period of just under 50 per cent was held to be appropriate in a case involving deportation. The case has further similarities to the present in that there were no previous convictions and a guilty plea was made.
[19] R v Wang [2009] NZCA 118.
We are not satisfied that the appellant has shown any error in the Judge’s approach to this aspect of the sentencing. We repeat what this Court said in R v Richardson that “Anslow should not be understood as holding that a minimum period of imprisonment is inappropriate unless the term is nine years or more”. [20] That number is not to be seen as a “bar”.
[20] R v Richardson CA85/06, 16 August 2006 at [26], cited with approval in R v Wang at [12].
Even where the circumstance gives rise to a lesser requirement for personal deterrence, the Court must assess all of the relevant factors under s 86 of the Sentencing Act. These include holding the appellant accountable, deterring the appellant and others and protection of the community.
We have no doubt that these factors justified the Judge’s imposition of a minimum term of imprisonment.
Accordingly this ground of appeal cannot succeed.
Result
The appeal is allowed in part. The sentence of eight years and nine months is quashed and a sentence of eight years and seven months imprisonment is imposed. The appellant is to serve a minimum period of imprisonment of four years and two months. This is a reduction of one month to reflect the adjustment to the head sentence of imprisonment for the reasons already given.
Solicitors:
Crown Law Office, Wellington for Respondent
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