Hopkins v The Queen
[2012] NZCA 422
•17 September 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA160/2012 [2012] NZCA 422 |
| BETWEEN GRAHAM PHILLIP HOPKINS |
| AND THE QUEEN |
| Hearing: 10 September 2012 |
| Court: Harrison, Simon France and Asher JJ |
| Counsel: B J Hunt for Appellant |
| Judgment: 17 September 2012 at 10 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
On 31 December 2010 the Police executed a search warrant at the home of the appellant, Graham Phillip Hopkins. They searched Mr Hopkins personally and found on him four small snaplock bags each containing 0.1 grams of methamphetamine. They located in the kitchen a sunglasses case containing a set of electronic scales, numerous unused snaplock bags and a glass pipe used for smoking methamphetamine. Next to the sunglasses case there was $1,300 cash. There were also surveillance cameras operating positioned to view the side and front entrances. Three cellphones were found. A further glass pipe for smoking methamphetamine was located in the garage.
Mr Hopkins’ cellphones were checked and an analysis of the text data obtained from Vodafone over the month prior to his arrest showed numerous instances of the sale and supply of methamphetamine to numerous persons.
The Police located in his living room a laptop computer that had been stolen in August 2010 worth $1,500. They also found a stolen Apple iPhone worth $1,129.
When spoken to by the Police Mr Hopkins denied the sale of methamphetamine and stated that the utensils were for his personal use. He claimed that he had purchased the laptop computer and was unaware that it had been stolen. He initially pleaded not guilty but upon arraignment following committal changed his plea to guilty. He was convicted on one count of supplying methamphetamine and two counts of receiving the computer and iPhone.
On 22 March 2012 Judge Tompkins sentenced Mr Hopkins to two years and five months’ imprisonment on the charge of supplying methamphetamine.[1] Concurrent sentences of four months’ imprisonment were imposed on each of the receiving charges.
[1] R v Hopkins DC Hamilton CRI-2010-019-10768, 22 March 2012.
Mr Hopkins appeals those sentences. Ms Hunt argues on his behalf that the end sentence is manifestly excessive. She submitted that the Judge made a mistake in imposing concurrent sentences on the receiving charges while at the same time uplifting the overall sentence by three months to take into account those charges. She also argues that there was a failure to take into account his remorse and rehabilitation. Ms Hunt’s submissions were aimed at persuading us that a sentence of two years’ imprisonment or less was appropriate, and that the correct end sentence was home detention.
The decision
Judge Tompkins noted that part of the sentencing process had been taken up by counsel for Mr Hopkins suggesting that Mr Hopkins might co-operate with the Police and provide helpful information, which could be relevant on sentencing. Ultimately Mr Hopkins did not provide any helpful information and no credit was given under this head. The Judge determined that the offending fell within the first band of R v Fatu[2] and that the appropriate starting point was two and a half years’ imprisonment in relation to the methamphetamine offending. He uplifted the sentence by three months to take into account the receiving charges and then discounted for the guilty plea by four months. The end sentence therefore was two years and five months’ imprisonment with concurrent terms on the receiving charges of four months each.
The starting point
[2] R v Fatu [2006] 2 NZLR 72 (CA).
This was modest methamphetamine dealing and undoubtedly fell within the first band of Fatu, where the starting point is between two and four years’ imprisonment.
Ms Hunt sought to persuade us that it was occasional methamphetamine supply not for profit, but to finance the purchase of drugs for Mr Hopkins who was an addict. The Police summary which was the uncontested basis for sentencing provides little support for this submission. It refers to the sale and supply of methamphetamine to “numerous persons”. This, and evidence indicating a supply operation such as a number of cellphones, scales, surveillance equipment and pre-packaged methamphetamine, all indicate that although this was low level retail methamphetamine dealing, Mr Hopkins had created a business enterprise. The culpability attaching to this operation was greater than that which would apply if the offender was only selling or supplying on an occasional basis.
Counsel for the Crown before the District Court Judge proposed a starting point of around three years’ imprisonment. We consider that a starting point of up to three years’ imprisonment, being the middle of band one, would have been available. The two and a half year starting point ultimately fixed by the Judge was at the lower end of the available range.
The uplift for the receiving charges
The Judge was right to uplift the sentence to take into account the receiving charges. The receiving was not, as Ms Hunt submitted, minor. The combined value of the two stolen items was $2,629. A starting point of four months for the concurrent sentence for the receiving charges was unremarkable, as was the uplift of the sentence on the methamphetamine charge to reflect the added culpability of the receiving of a reduced period of three months’ imprisonment taking into account the totality principle.
Ms Hunt labeled the Judge’s approach to the receiving charges as double counting. This submission shows a misunderstanding of s 85 of the Sentencing Act 2002. Section 85(5) specifically provides that where concurrent sentences are to be imposed for multiple offending, the most serious offence must receive the penalty that is appropriate for the totality of the offending and each of the lesser offences must receive a penalty appropriate to that offence. The Judge followed this process, adding three months as the penalty for the receiving convictions to the methamphetamine sentence on a totality basis.
Remorse and rehabilitation
It was submitted that there should have been a separate discount for remorse and for Mr Hopkins’ commitment to rehabilitation, in addition to that provided on account of the guilty plea.[3]
[3] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
While the Judge did not specifically deal with remorse, we accept Ms Salmond for the Crown’s submission that it can be assumed that he was not persuaded that Mr Hopkins’ remorse was at a level to attract a separate discount. Although the pre-sentence report recorded that Mr Hopkins regretted his offences, there was no particular evidence of remorse before the Judge. Mr Hopkins had initially denied the offending, and maintained a not guilty plea for a considerable period before changing it some months before trial. There was nothing to support Ms Hunt’s claim that Mr Hopkins felt remorse rather than regret at his predicament. Some recent letters presented to us by Ms Hunt dealt with his current drug free situation, but did not assist in the assessment of the merits of the appeal.
We see nothing in the sentencing decision to support Ms Hunt’s submission that the Judge wrongly conflated Mr Hopkins’ decision not to provide assistance to the Police with a lack of remorse. The submission fails to recognise that there was no evidence of particular remorse and no particular submission about remorse at the District Court.
Further, the pre-sentence report indicated that for the 12 months prior to that report Mr Hopkins had been drug free. There were no special rehabilitative needs of the type referred to in R v Hill[4] to warrant giving rehabilitation any particular weight in the sentencing process, even if that were possible. The discount for the guilty plea of around 12 per cent was appropriate, given the strength of the Crown case and the late change of plea, and no additional discount was required.
Summary
[4] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
The Judge set out his reasons for the sentence clearly, and there were no errors in the reasoning process. In our view the end sentence of two years and five months’ imprisonment was within the range, and indeed towards the lower end of the range.
The appeal is dismissed.
Solicitors:
Crown Law, Wellington for Respondent