Jellyman v The Queen

[2010] NZCA 546

IN THE COURT OF APPEAL OF NEW ZEALAND

CA132/2010
[2010] NZCA 546

BETWEENESMOND MILES JELLYMAN

Appellant

ANDTHE QUEEN

Respondent

Hearing:22 November 2010

Court:Harrison, Ronald Young and Keane JJ

Counsel:C G Tuck for appellant

F Sinclair for respondent

Judgment:22 November 2010 

ORAL JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]        Mr Esmond Jellyman was sentenced to a term of nine years’ imprisonment in the District Court at Tauranga on 16 December 2009[1] following his pleas of guilty to charges of supplying methamphetamine, possession of methamphetamine for supply, receiving, possessing explosives, unlawful possession of a firearm and money laundering.  He does not appeal that sentence. 

[1]      R v Jellyman DC Tauranga CRI-2008-070-5823, 16 December 2009.

[2]        Mr Jellyman was also sentenced to a minimum period of imprisonment of five years.  He does not challenge the imposition of a minimum term as such but he appeals against its length. 

[3]        The scope of Mr Jellyman’s appeal is narrow and fact specific, and does not raise any issue of principle.  We are in a position to give judgment orally. 

District Court

[4]        Mr Jellyman was 39 years of age at the time of sentencing.  His offending covered an eight month period from November 2007 to July 2008.  According to the sentencing Judge, Judge Rollo, Mr Jellyman was operating a methamphetamine supply operation in a large area of the North Island.  The Judge was satisfied that in the period of offending Mr Jellyman made a profit of $130,000 from money laundering, with a further $375,000 owing to him from drug purchases at the time of his arrest. 

[5]        Judge Rollo had given a sentencing indication on 6 November 2009.  After receiving submissions from both counsel, he had indicated a starting point in the range of nine to 11 years’ imprisonment before personally aggravating or mitigating circumstances were taken into account.  Consistently with that approach, the Judge adopted an actual starting point of 11 years following Mr Jellyman’s pleas before allowing a reduction for pleas of guilty and other mitigating factors.  Mr Jellyman had a reasonably extensive list of previous convictions dating back to 1986 including a term of one year’s imprisonment imposed on conviction for cultivating cannabis in 2000. 

[6]        Judge Rollo then considered the question of a minimum period of imprisonment.  He took into account submissions made by both counsel and he concluded that a minimum term should be imposed given the seriousness of the offending and the requirement of deterrence.  He imposed a minimum period of imprisonment of five years on the charges of supplying methamphetamine and possessing it for the purposes of supply. 

Appeal

[7]        In support of Mr Jellyman’s appeal, Mr Tuck acknowledges that, in accordance with authority in this Court, minimum periods of imprisonment are frequently imposed on those sentenced to nine years’ imprisonment or more for methamphetamine dealing.  He observes that a minimum term of five years’ imprisonment was 55.6 per cent of the finite sentence.  He described this as close to the maximum 66 per cent allowed by statute.[2]  In numerical terms he says that it should have been in the 45 to 50 per cent range. 

[2]      See Sentencing Act 2002, s 86(4)(a). 

[8]        Mr Tuck submits that in fixing the term of five years Judge Rollo only gave weight to the severity of the offending and the need for deterrence.  He says that the Judge failed to take account of mitigating factors.  In particular, he refers to Mr Jellyman’s willingness to address the factors which contributed to his offending, his desire to live in another centre, the fact that while on bail he had attended drug counselling and that he was assessed as being at low risk of reoffending.  It was this latter factor which Mr Tuck emphasised particularly in argument this morning. 

Decision

[9]        As noted, Mr Jellyman does not challenge the District Court’s decision to impose a period of imprisonment longer than the minimum otherwise available.  The Judge was entitled to impose that minimum period if he considered that the finite sentence was insufficient for one or all of the four statutory purposes.[3]  In this case, the Judge was satisfied that it was necessary to meet at least three of those purposes, particularly denunciation and deterrence. 

[3]      Sentencing Act 2002, s 86(2).

[10]      Thus the only issue for resolution was the length of the minimum term.  As this Court has previously said, the Judge was required to take into account the purposes and principles of sentencing including aggravating and mitigating features, which is a similar exercise to setting a finite term.[4]

[4]      R v Wang [2009] NZCA 118 at [14]; R v Gordon [2009] NZCA 145.

[11]      While the Judge did not make an express allowance for mitigating factors when imposing the minimum term, he had undertaken that exercise as part of fixing the finite sentence.  He made an appropriate allowance for Mr Jellyman’s pleas of guilty.  But he was not satisfied that there were any other mitigating circumstances.  Indeed, Mr Jellyman’s previous history would preclude any allowance on that account.  His expression of willingness to address the causes of his offending was positive but was not entitled to any specific recognition.  And, in answer to Mr Tuck’s submission that Mr Jellyman was assessed by the probation officer as presenting a low risk of reoffending, it must be pointed out that his record throws that assessment into question.  In any event the probation officer’s assessment was subject to an express qualification relating to Mr Jellyman’s criminal associates. 

[12]      So, in essence, other than a guilty plea, there were no mitigating features for the Judge to take into account when imposing the minimum period of imprisonment.  In this respect, as Mr Sinclair points out for the Crown, Mr Jellyman’s acceptance of the finite term implies an acceptance of the Judge’s assessment of mitigating factors.  When viewed overall, and by comparison with other decisions in this Court,[5] the minimum term of five years or 55.6 per cent which was imposed by the sentencing Judge cannot be classed as excessive. 

Result

[5]      See R v Wang and R v Zhou [2009] NZCA 365.

[13]      Mr Jellyman’s appeal is dismissed. 

Solicitors:

Crown Law Office, Wellington