Luang-Saysy v The Queen
[2011] NZCA 338
•26 July 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA93/2011 [2011] NZCA 338 |
| BETWEEN DARAVANH LUANG-SAYSY |
| AND THE QUEEN |
| Hearing: 19 July 2011 |
| Court: Stevens, Potter and Ronald Young JJ |
| Counsel: S Tait and H Kim for Appellant |
| Judgment: 26 July 2011 at 4.00 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
When the police executed a search warrant on the appellant’s address in April 2010 they found methamphetamine and cannabis. As a result the appellant was charged with supplying a class A controlled drug (methamphetamine), possession of a class A controlled drug for supply (methamphetamine) and possession of a class C controlled drug for supply (cannabis). He pleaded guilty to these and was sentenced by Judge Moses in the District Court.[1]
[1]R v Luang-Saysy DC Manukau CRI-2010-092-6387, 2 February 2011 [sentencing remarks].
The appellant says his two years, two months’ prison sentence by imposed by the Judge was manifestly excessive because he received no separate or appropriate credit for remorse.
Background facts
When the police executed the search warrant at the appellant’s family address they found 2.7 grams of methamphetamine in five individual snaplock bags. The value of the methamphetamine is somewhere between $2,000 and $3,000. One ounce of cannabis was found primarily in a large snaplock bag with the rest in a small plastic container. Its value was about $300. In addition the police found a set of electronic scales and $1,640 in cash.
The appellant admitted the drugs were his and agreed that he had been selling methamphetamine and cannabis from his address. He said he had been selling methamphetamine for a couple of months. He would buy a gram of methamphetamine for $800, repackage it into ten smaller bags and sell these for $100 each with total sales of $1,000 a week. He said the sale of cannabis was to associates on request.
Prior to sentencing the Judge was invited to give a sentencing indication. He did so on 11 November 2010.[2] He said that the proper starting point for all of the drug offending was three years and three months’ imprisonment. He deducted from that credit for the appellant’s crime free past (around six months) and “a credit of 20 percent for his guilty plea if he recorded a guilty plea at this stage”.[3] He, therefore, said “that unless there are additional matters that the defence are able to point to that sentence of around two years two months to two years four months would be an end result”.[4]
[2]R v Luang-Saysy DC Manukau CRI-2010-092-6387, 11 November 2010.
[3]At [6].
[4]At [7].
The Judge’s sentence indication predated the Supreme Court’s decision in Hessell v R by five days.[5] The appellant pleaded guilty on 25 November 2010 after arraignment. At sentencing the Judge acknowledged the relevance of the Supreme Court decision in Hessell.
[5] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
There is no challenge to the appropriateness of the Judge’s starting point of three years and three months’ imprisonment. The Judge deducted six months for the appellant’s crime free past and then gave a further discount for his guilty plea and remorse.
The Judge said:[6]
It seems to me on any reading of this situation, bearing in mind the time at which you pled guilty, the most I can give you for pleading guilty and your remorse is 20 percent.
[6]Sentencing remarks at [9].
The Judge did not consider there were any new factors not present at the sentence indication which might influence his sentence and concluded that the proper sentence was two years and two months’ imprisonment.
Submissions and Discussion
The appellant says that the Judge failed to give any discount to reflect the appellant’s remorse and that this was an error by the Judge. This is required by the Supreme Court’s decision in Hessell. The appellant says the Judge only gave a discount for the guilty plea. The Judge had offered a 20 per cent discount for the guilty plea at the sentence indication hearing. The Supreme Court’s decision required the Judge to give a further discrete discount for remorse.
The appellant says he was remorseful. He gave a full and frank admission to the police on apprehension. He expressed remorse to the pre‑sentence report writer, who confirmed that he was remorseful. The appellant said that he recognised his behaviour was a mistake and he regretted it. He assured the report writer that it would not happen again. Thus, the appellant says the Judge was wrong not to give an additional credit for remorse beyond the 20 per cent given for the appellant’s guilty plea, perhaps another five per cent. This would reduce the overall sentence to two years’ imprisonment. The appellant did not ask this Court, if that submission was accepted, to consider home detention.
The 20 per cent discount identified by the Judge for a guilty plea at the sentence indication hearing was in accordance with this Court’s decision in Hessell.[7] This Court said that the discount given for a guilty plea should incorporate any discount given for remorse.[8]
[7] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[8] At [24]–[28].
Thus, the 20 per cent reduction offered by the Judge at the sentence indication hearing incorporated both the appellant’s guilty plea and remorse.
The Supreme Court in Hessell identified the need to provide a separate discount from any guilty plea for remorse.[9] They said that up to 25 per cent was to be available for a guilty plea and a further discount for remorse.
[9] At [64].
In this case the Judge recognised the change in approach mandated by the Supreme Court to discounts for remorse and guilty pleas. He concluded that the appellant’s guilty plea and remorse entitled him to a discount of 20 per cent. This was hardly surprising given the 20 per cent discount offered at the sentence indication would have included a discount for remorse in terms of this Court’s judgment in Hessell. There was, therefore, no error in the Judge’s approach.
In any event we are satisfied the sentence imposed was not manifestly excessive. The appellant admitted selling approximately eight grams of methamphetamine over a two month period. He was in possession of a further 2.7 grams of methamphetamine he intended to sell. He had also been selling cannabis during that two month period. He was, therefore, well into band two of this Court’s decision in R v Fatu.[10]
[10] R v Fatu [2006] 2 NZLR 72 (CA).
The starting point for sentence of three years and three months’ imprisonment was, therefore, modest and the deduction of six months for a crime free past generous to the appellant. The appellant pleaded guilty six months after charge and after he had been arraigned in the District Court. This was not, therefore, an early guilty plea.
As to remorse he was co‑operative with the police and appeared genuinely regretful for his actions. A reduction of 20 per cent for the guilty plea and this remorse could also be seen as generous. The final sentence was well within the range available to the Judge.
Result
For the reasons given the appeal against sentence will be dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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