Hartman v The Queen

[2010] NZCA 90

IN THE COURT OF APPEAL OF NEW ZEALAND

CA758/2009
[2010] NZCA 90

BETWEENMICHELLE KAYE HARTMAN

Appellant

ANDTHE QUEEN

Respondent

Hearing:4 March 2010

Court:Randerson, Priestley and MacKenzie JJ

Counsel:C J Tennet for Appellant

M E Ball for Respondent

Judgment:24 March 2010 at 10.30 a.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]        The appellant pleaded guilty to 17 charges of drug dealing and credit card fraud[1] and was sentenced to an effective term of seven and a half years’ imprisonment by Wild J.  She now appeals her sentence as manifestly excessive.  The appellant was convicted of three counts of importing the class B controlled drug Gamma-Butyrolactone (GBL – also known as fantasy); one count of possession of GBL (simpliciter); one count of possession of GBL for supply; one count of supplying the class A controlled drug methamphetamine; two counts of supplying the class B controlled drug MDMA (also known as ecstasy); one count of possession of MDMA for supply; one count of conspiracy to cause loss by deception and six counts of dishonest use of a document for pecuniary gain.

[1]      R v Hartman HC Wellington CRI 2008-085-8906, 6 November 2009.

[2]        The grounds of appeal are:

(a)the eight year starting point adopted for the drugs charges was too high;

(b)the two year uplift applied in respect of the fraud charges was too high;

(c)the Judge failed to give credit for the appellant’s personal circumstances; and

(d)a modest discount ought to have been given on compassionate grounds.

[3]        A further ground of appeal on the basis that a 25 per cent allowance for a guilty plea was inadequate was abandoned during the hearing. 

The facts

The drugs charges

[4]        The Judge treated the three counts of importing GBL between July and November 2008 as being the most serious.  The total quantity imported was 15.5 litres.  The appellant had been dealing consistently in GBL in Auckland and Wellington over the period July to November 2008.  Some of the GBL was sold to other drug dealers and some was sold directly.  The price varied but the total value of the sales was approximately $50,000.

[5]        Wild J accepted there was little evidence of the amounts or values of the methamphetamine sold, but referred to the persistent supply or offer to supply methamphetamine over a five month period.  As to the MDMA, the appellant travelled to Wellington in September 2008 and obtained 400 pills.  She took them back to Auckland and offered to supply them on ten occasions and actually supplied the drug on four occasions.

The fraud charges

[6]        The appellant stole some 38 different credit cards and, over a seven month period between May and November 2008, used them to pay for the importations of GBL and to fund her“drug-addicted lifestyle”.  This included paying for air travel for herself and her associates between Auckland and Wellington to uplift the imports of GBL or to buy drugs in Wellington; accommodation, cellphones, taxis, food and other personal expenses.  They were also used to purchase goods which the appellant sold for cash.

[7]        The total loss resulting from the credit card fraud was approximately $28,500.  In addition, the appellant attempted further credit card frauds which, if successful, would have resulted in about $18,000 in additional losses. 

[8]        In the first few weeks of this offending, the appellant was on bail awaiting sentence on other credit card charges for which she was subsequently sentenced to community work. 

[9]        The appellant also pleaded guilty to one charge of conspiracy to cause loss by deception on the basis that she committed the credit card frauds with other criminal associates.

The Judge’s approach to sentencing

[10]       Wild J chose a starting point of eight years’ imprisonment to reflect all of the drug offending.  He adopted the three charges of importing GBL as the lead sentences.  He considered that GBL had been imported on a substantial scale over several months and that the offending was at the top end of band 2 as described by this Court in R v Wallace.[2]  He then “factored in” the methamphetamine dealing which he placed in band 1 as identified in this Court’s decision in R v Fatu.[3]   The Judge then took into account the “compounding factor” of the MDMA dealing to arrive at the total starting point for the drug offences of eight years’ imprisonment.

[2]      R v Wallace [1999] 3 NZLR 159 at [31].

[3]      R v Fatu [2006] 2 NZLR 72 at [34].

[11]       Wild J considered the fraud offences warranted a cumulative sentence.  After reference to comparative authorities, he considered an uplift of two years was required to reflect the additional offending to arrive at a combined starting point of ten years’ imprisonment.

[12]       Dealing with the appellant’s personal circumstances, the Judge noted she was 43 years of age with two adult children and that she had become addicted to illicit drugs by the time she was 18 years of age.  She was sentenced to a term of imprisonment for serious offending including burglary of three years and nine months.  Upon her release she had embarked upon a drug rehabilitation programme which she did not complete and had relapsed into heavy heroin use.

[13]       It was to the appellant’s credit, the Judge said, that in 1996 she took a further drug addiction programme and remained free of heavy drugs for about eight years, but then relapsed again and became a heavy user of methamphetamine by the time she was arrested for the current offending.  He clearly saw that there were prospects for the appellant’s rehabilitation, noting her attempts to overcome her addiction to serious drugs, her intelligence and her ability to hold down demanding work.  He indicated he would give her credit for those things and that rehabilitation was an important part of her sentencing.

[14]       On the other hand, the Judge noted that the appellant had a fairly extensive list of criminal convictions mainly for drug offending and dishonesty, going back to 1986 when she was 19 years of age.  She had been sentenced for dishonesty offences in 1989, 1999 and 2008 in addition to drug offending.

[15]       Addressing the appellant’s criminal record and her desire to rehabilitate, the Judge said:[4]

A criminal record of that type would justify an increase in my sentencing starting point, that is the 10 years I mentioned.  Instead of imposing such an increase, I emphasis to you that you are very much at a crossroads in your life.  You say you want to stay off drugs in the future, get a balance into your life and try and build up a support network to enable you to do that.  I hope for your sake that you are both genuine and successful in doing that, because, Ms Hartman, I fear that if you are not you are going to spend a good part of the rest of your life in and out of prison.  As you, more than anyone, will know, it is now really largely up to you.

[4] At [32].

[16]       From the ten year starting point, he allowed the appellant a discount of 25 per cent (or two and a half years) to arrive at the total effective sentence of seven and a half years’ imprisonment.  A minimum period of imprisonment was considered, but declined.

Was the starting point for the drug offences too high?

[17]       The sentencing Judge considered all the recent judgments of this Court in relation to sentences for the importation of GBL.[5]  Mr Tennet submitted that the quantities and value involved in the importations in those cases were substantially higher than those involved in the appellant’s case.  It is unnecessary to review these decisions extensively but, in general terms, Mr Tennet’s proposition is correct.  With the exception of R v Palmer, these cases proceeded on the basis that the offending was in the highest of the three categories identified by this Court in R v Wallace which suggests a sentencing range of eight to fourteen years for “commercial activity on a major scale”.  This case does not reach that level.  It is not in dispute that the offending in this case appropriately fell within band 2 of R v Wallace[6]:

Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range 5 to 8 years.

[5]R v Adams [2008] NZCA 171; R v Rys [2007] NZCA 360; R v Stark CA104/06, 31 July 2006; R v Palmer [2007] NZCA 167, [2007] 3 NZLR 313.

[6]      R v Wallace [1999] 3 NZLR 159 at [31].

[18]       As noted, the Judge considered the offending to be at the top end of band 2, the importation occurring on a substantial scale over several months.  Considering the relatively low level of GBL involved in the appellant’s case, the Judge’s conclusion in this respect may be open to question.  However, even if a starting point of say six years were adopted for the importation of GBL alone, we would not question the Judge’s assessment that a starting point of eight years’ imprisonment was appropriate to reflect the totality of the drug offending including the charges of supplying the class A drug methampethamine and the class B drug MDMA.

[19]       We also accept Ms Ball’s submission on behalf of the Crown that there was a degree of sophistication in the enterprise, including planned deliveries to the address of the appellant’s mother to avoid detection and the network of contacts which the appellant had built up in order to distribute the drug.  We consider it was an important factor in the appellant’s case that she was involved in both the importation and sale of GBL.

Was the uplift of two years for the fraud charges justified?

[20]       Mr Tennet submitted that an uplift of six months would have been appropriate.  We do not accept that submission.  The scale of the offending was substantial, involving a total loss of $28,500 and further potential losses of $18,000.  The credit cards were used fraudulently to obtain a substantial range of goods and services which enabled the appellant to carry out the importation and distribution of drugs as well as enabling her to meet personal expenses.

[21]       Although Mr Tennet initially submitted that the fraud should have been treated as part and parcel of the drug offending, he accepted during the hearing before us that it was appropriate for a cumulative sentence to be imposed.

[22]       We are not persuaded that the uplift of two years for the fraud charges was outside the range available to the Judge.

Discount for personal factors

[23]       Mr Tennet’s submission was that the Judge ought to have reduced the starting point having regard to the appellant’s personal circumstances. In that respect, he suggested that the Judge had referred to her circumstances but had not taken them into account.

[24]       The Judge said expressly that he would give the appellant a credit for her personal circumstances as already noted.  He might have given, but did not, a corresponding uplift to reflect the appellant’s extensive list of previous convictions, particularly for drug offending and dishonesty.  Plainly, he set off these two factors against each other.

Further discount for compassion?

[25]       Mr Tennet cited the decision of the Supreme Court in Jarden v R[7] in support of the proposition that a further discount should have been made by the sentencing Judge by reason of the fact that her mother had died of cancer while the appellant’s case was pending.  We are not persuaded that this event was of such significance as to justify any further discount. 

[7]      Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.

[26]       It is obvious from the Judge’s sentencing notes that he carefully balanced all relevant factors and took an approach to her sentencing that was as compassionate as possible in the circumstances.  It is not without significance that the Judge considered and rejected a submission by the Crown that a minimum period of imprisonment be imposed.

Result

[27]       The appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent