Keefe v The Queen

[2010] NZCA 366

IN THE COURT OF APPEAL OF NEW ZEALAND

CA5/2010
[2010] NZCA 366

BETWEENDELWYN ISMALIA KEEFE

Appellant

ANDTHE QUEEN

Respondent

Hearing:5 August 2010

Court:Ellen France, Gendall and Courtney JJ

Counsel:E R Fairbrother for Appellant

F E Guy Kidd for Respondent

Judgment:13 August 2010 at 10 am 

JUDGMENT OF THE COURT

A            Application to adduce new evidence dismissed.

B            Appeal against sentence dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1]        The appellant pleaded guilty in the District Court at Napier to a representative charge of selling cannabis to persons between 1 January 2004 and 7 May 2009; and separate charges of having cannabis in her possession for the purpose of sale and offering to sell cannabis on 7 May 2009.  Jurisdiction to sentence her in the District Court was declined and Wild J sentenced her in the High Court at Napier on 15 December 2010 to concurrent terms on each charge of two years and three months’ imprisonment.[1]  She appeals against that sentence, and applies for leave to adduce further evidence.

Background

[1]      R v Keefe HC Napier CRI-2009-041-1872, 15 December 2009.

[2]        The offending came to light on 7 May 2009 when three police officers went to the home of the appellant and her partner, Mr Jan Molenaar, in Napier.  The purpose was to execute a drug-related search.  Inside the house was a substantial cannabis cultivation operation being run by Mr Molenaar.  There was a significant quantity of cannabis in aluminium foil, snaplock bags, scales, multiple weapons and ammunition.  Cash of $NZ15,000 and $A5,000 was found.  The execution of the search warrant resulted in tragic consequences, when Mr Molenaar used his firearms with murderous intent on the officers executing the warrant. 

[3]        The appellant said that she was unaware of firearms in the home and although, obviously, she was aware of the cultivation, nevertheless it was the operation of Mr Molenaar in which she was not involved.  It was her partner who cultivated, packaged and prepared cannabis for sale.  She said it was his sole enterprise, with the appellant being involved only in sales.

[4]        The appellant admitted that she had earlier that day sent a message to a “customer” offering to sell half an ounce of cannabis for $140.  She further admitted that she had been selling cannabis, on Mr Molenaar’s instructions to persons at various locations in the Napier area over the past five years.  That involved delivering cannabis in various quantities, up to the extent of one ounce and was not simply dealing in “tinnies”.  The evidence was that the appellant also conducted door sales of cannabis from the property, as did her partner Mr Molenaar.

[5]        The appellant disputed some of the facts contained in the police summary.  So Wild J conducted a disputed facts hearing.  His findings are in his summary of facts for sentencing as follows:[2]

[4]         ... you attempted to minimise your involvement in the cannabis operation being conducted from the home you shared with Mr Molenaar.  For example, you maintained that you only made deliveries of cannabis to customers because Mr Molenaar directed you to.  Your implication was that you acted under some sort of duress or threat.  I reject that.  I find that you were very much involved in the cannabis operation, and freely and willingly so.  In particular, I reject your implication that you were an unwilling participant.  There was no suggestion to that effect in the lengthy videotaped interview you had with Detective Lee on 20 May this year.  There was no suggestion of any reluctance on your part in the statement made to the Police by your daughter on 12 May.  She was 18 at the time she made that statement; about 13-14 at the time you started taking her in the car when you made the cannabis drops.

[5]         A further indication of your willing involvement in the cannabis operation is that you told Detective Lee on 20 May that the $5,000 Australian cash was spending money for you on a trip you were to make last May, to attend your brother’s 40^th birthday in Australia.  You readily admitted to the Detective that the $5,000 came from the sale of cannabis.  In other words, you were happy to enjoy the monetary benefits of the cannabis operation.

[6]         In the course of the disputed facts hearing, you also sought to convey that the cannabis operation was a very limited one, and did not operate continuously.  I reject your second point.  I find that you and Mr Molenaar conducted the cannabis operation continuously over the five years or so up until the events of last May brought it to an abrupt halt ... I refer to the number of plants growing, the amounts of cannabis found in your home, and to the substantial sums of cash found, which you accepted were the proceeds of the cannabis operation.  These are also the best indications of the size of the operation.

[7]         Another indication of the frequency of the operation is the calls that were received on 7 May this year – the morning the Police executed the search warrant.  First, at 7.22 am that morning you received a text message from your friend Stacey inquiring about cannabis.  You sent her in response a text message that said “Hi Stacey Del here my mate has halves 140”.  You told Detective Lee that that message referred to Mr Molenaar and to the availability of half ounces of cannabis for $140.  You told him that that was a discount for your friend, from the normal sale price of $150 per half ounce.

....

[10]       To summarise, I sentence you on the basis that you were actively and willingly involved with Mr Molenaar in running a cannabis growing and selling operation from your home at 41 Chaucer Rd over the five years up to 7 May this year.  And I sentence you also on the basis that what the Police found when they executed a search warrant at your home on the morning of 7 May is an accurate indication of the size of the operation.

[2]      R v Keefe HC Napier CRI 2009-041-1872, 13 November 2009.

[6]        When sentencing the appellant, Wild J fixed a starting point of three years’ imprisonment, placing the offending in the middle of the second category in R v Terewi.[3]  He said the sort of dealing that the appellant and Mr Molenaar were operating from the home was low-level commercial dealing.  But it was long term.  The Judge identified what he said were four key features of the offending.  First, its five year duration.  Second, its scale, illustrated by there being 23 ounces of cannabis in the house packaged and ready for sale, with the amounts of Australian and New Zealand cash.  Third, that the appellant on occasions took her then 14 year old daughter with her when cannabis deliveries were made around the Napier area.  Wild J regarded this as a distinct aggravating factor.  Fourth, the Judge referred to the fact that it was Mr Molenaar and not the appellant who was the driving force behind the operation, he being the principal offender and responsible for the cultivation of the cannabis. 

[3]      R v Terewi [1999] 3 NZLR 62 (CA).

[7]        The Judge then turned to the mitigating personal factors, which included the appellant’s age (44), she is the mother of two daughters, and had no drug offending convictions.  He treated her as, in a sense, a first offender.  He referred to the appellant not having insight into her offending, because she was content to blame Mr Molenaar rather than accept responsibility for her actions.  Wild J said that the appellant was:

[19]       ... a drug dealer for five years, selling cannabis to whoever wanted to buy it around Napier.  Because you do not accept responsibility you do not, it seems to me, have any real remorse for what you have done.

[8]        Consequently, the Judge said that there was nothing that warranted any increase or decrease from the three year starting point.  He then gave significant discount for the guilty pleas.  He noted that it would have been one-third had the appellant not disputed the facts in what he considered was a “meritless way”.  So he re-evaluated the discount as referred to in R v Hessell[4] but nevertheless fixed it at 25 per cent.  As a consequence concurrent sentences of two years three months’ imprisonment were imposed.

Appellant’s application to adduce fresh evidence

[4]      R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [46]–[48].

[9]        The appellant sought leave to introduce what counsel said was new evidence.  This was from two sources.  Mr Fairbrother acknowledged, however, that none of this evidence was “fresh”, but he said it was necessary in order to provide “specificity” to matters that were before the sentencing judge in general form.  Essentially, he submitted that the evidence related to the appellant being unaware, when she was first interviewed by the police, as to the specific contents of the statement her daughter had made relating to the degree to which the appellant involved her when delivering cannabis to customers.  Counsel argued there was no specificity as to how many events or deliveries occurred over the five years in which the appellant involved her daughter.

[10]       The daughter’s statement, together with the evidence of the appellant, were before Wild J and relied upon by him when he assessed the evidence at the disputed facts hearing.  Clearly, the appellant had delivered cannabis on several occasions over an extended period to customers whilst in the presence of her teenage daughter.  That proposed evidence is not fresh.  It is no more than an expansion of the explanations that the appellant sought to give to Wild J at the disputed facts hearing, and was available to her at that time.  In any event its relevance is doubtful.  It does not relate to her culpability but rather to her knowledge of what her daughter had said was happening to the police.  We decline to admit that evidence. 

[11]       Secondly, the appellant sought to introduce in affidavit form her evidence as to the extent of her involvement in the cannabis selling arm of the commercial operation.  It refers to the separate cultivation by her partner, her limited selling involvement and her explanations as to the source of the $5,000 Australian currency in cash and to the use to which that was intended to be put.

[12]       None of the proposed evidence is fresh.  It could not be said that it was unavailable to be given by the appellant at the disputed facts hearing.  She was then represented by experienced counsel.  She gave evidence touching on those matters.  She simply seeks to re-litigate and expand upon or re-state the evidence she gave before Wild J.  Beyond doubt, matters personal to her may be advanced in submissions in mitigation of sentence and form the basis of submission.  But it is not open to her to elaborate or challenge the factual findings of Wild J in the form of further repetitive affidavit evidence.  It seeks to undermine the evidence given at the hearing, and is disregarded in the appeal.  Otherwise the criminal law process would be unending.  The evidence sought to be adduced on behalf of the appellant in affidavit form, is not fresh, cogent or relevant to determining the issues that this Court must consider on appeal.  We decline to admit it. 

Appellant’s substantive contentions

[13]       Counsel contended that the sentence was manifestly excessive, and that a sentence of home detention should have been imposed.  Mr Fairbrother submitted that Wild J was wrong to assess the culpability of both the appellant and Mr Molenaar as equal when fixing a starting point for the entire selling operation at three years’ imprisonment.  Counsel said that the appellant’s involvement was in fact at the lower end of category two of Terewi.  He argued that, after applying mitigating circumstances, an end sentence of two years’ imprisonment was appropriate, which would afford jurisdiction to impose home detention.  Mr Fairbrother submitted that the appellant’s co-operation with the police and her acceptance of criminal involvement, with guilty pleas, were substantially mitigating.  He submitted that she had conducted herself in an exemplary way with the police and had assisted in relation to the parallel, but different, matters involving the siege with Mr Molenaar.  Counsel submitted that in the end a sentence of home detention was appropriate because the appellant was neither a drug dealer nor likely to offend in the future and the “driver” or instigator for her offending was no longer present.

[14]       Mr Fairbrother contended that a more substantial discount for mitigating features should have enabled home detention to be imposed, and that the sentencing Judge made no proper allowance for the grief and mitigating factors that impacted upon the appellant through the death of her partner.

Discussion

[15]       The starting point of three years’ imprisonment taken by the sentencing judge was appropriate.  The offending fell squarely within the second category in Terewi.  That was the starting point for the appellant – not for Mr Molenaar.  It was not the case that the Judge said that Mr Molenaar’s offending, if he had ever been charged, fell within that category.  Wild J made it clear that he did not equate the appellant’s culpability with that of Mr Molenaar.  The selling operation of the cannabis cultivated in the home by Mr Molenaar was undoubtedly commercial.  The appellant was actively involved in the selling of that product, over an extended period of five years.  Rightly, he regarded as aggravating the fact that the appellant exposed her teenage daughter to her selling activities, by her being present when sales of the drugs were implemented.  The Judge was concerned that the appellant attempted to justify her involvement, and because of her lack of insight, or failure to accept responsibility, her risk of re-offending was assessed as moderate.  Although the probation officer’s report was favourable, it nevertheless recommended a sentence of imprisonment, and did not endorse home detention.

[16]       The appellant’s separate criminal responsibility was assessed properly by the Judge and there was no error in principle in his adopting a three year starting point.  He took into account the appellant’s personal circumstances as mitigating factors.  The appellant’s insignificant prior criminal convictions and grief over Mr Molenaar’s death did not alter matters.  It was open to Wild J to conclude that the disputed facts hearing was meritless and he was better placed than an appellate court to assess the credibility and genuineness of the evidence that the appellant gave.  He allowed a significant discount of 25 per cent for her guilty plea, treated as evidence of remorse, and other matters. 

[17]       Although Mr Fairbrother accepted there was no issue of duplicity in the charges he maintained the concurrent sentences should have been adjusted so as to reflect the individual seriousness of each charge.  We do not accept that submission has any merit.

[18]       It has not been shown that the ultimate sentence was in any way excessive.  Nor was it reached without consideration of proper sentencing principles and relevant factual features of the offending as assessed by the Judge from the disputed facts hearing. 

[19]       Even if it by some mathematical approach to discounts from the nominal starting point a notional sentence of two years’ imprisonment could have been reached this was not, in any event, a case where a sentence of home detention would have been appropriate.

[20]       Consequently the appeal against sentence is dismissed.

Solicitors:

P A Fairbrother, Napier for Appellant

Crown Law Office, Wellington for Respondent