McInnes v The Queen
[2012] NZCA 547
•26 November 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA545/2012 [2012] NZCA 547 |
| BETWEEN DARCEY JOHN MCINNES |
| AND THE QUEEN |
| Hearing: 30 October 2012 |
| Court: Ellen France, Allan and Lang JJ |
| Counsel: A J D Bamford for Appellant |
| Judgment: 26 November 2012 at 11.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
The appellant pleaded guilty to three drug related charges. The first of these was selling a class C controlled drug, cannabis. The second count was that of offering to supply a class B controlled drug, cannabis oil. The final charge was one of conspiracy to supply the class A controlled drug, LSD. The appellant was sentenced by Judge Zohrab to a term of imprisonment of two years and four months.[1] He appeals against his sentence on the basis that it is manifestly excessive.
[1] R v McInnes DC Nelson CRI-2011-042-3025, 29 August 2012 [sentencing remarks].
The appeal raises issues about the assessment of the appellant’s culpability, particularly in relation to the charge of conspiracy to supply LSD and how his culpability compared to that of his co-offender, Nigel Robinson. The appeal also focuses on the appropriate discount for personal factors, including the appellant’s youth. He was 19 years old at the time of the offending and 20 at the time of sentence.
Factual background
The appellant’s offending came to light after the police executed search warrants in relation to the cellphone data of a number of persons including the appellant and his co-offender, Mr Robinson. An analysis of the text messages sent and received by the appellant revealed cannabis and LSD offending. He subsequently pleaded guilty to the three charges identified above. The cannabis supply charge covered the period from 22 June 2011 to 21 July 2011. The conspiracy to supply LSD charge related to the period from 6 July 2011 to 21 July 2011.
There is no real dispute that the scale of the offending is as reflected in the Crown submissions at sentencing. The sentencing submissions set out an analysis of the text traffic, which is reproduced in the written submissions from the Crown on the appeal and refer to the following:
7.1 23 offers to supply LSD tabs;
7.2 12 offers to supply ounces of cannabis;
7.3 One offer to supply a half-ounce of cannabis;
7.4 59 offers to supply cannabis tinnies;
7.5 One offer to supply cannabis oil; and
7.6 Two offers to supply $50 bags of cannabis.
The appellant takes issue with the characterisation of his role in this offending, as we shall discuss.
The appellant in the text messages tended to discuss the drugs in standardised quantities, for example, tabs of LSD, ounces of cannabis, $50 bags of cannabis. In addition, the text messages specified prices such as $300 to $350 for an ounce of cannabis. To illustrate the type of dealing and messages, on 18 July 2011 the appellant was asked if he had any cannabis in the form of halves. He responded that he did not get halves but he could get “whole skunks for $350”.
The Judge’s approach to sentencing
Judge Zohrab said that the cannabis offending was clearly within band two of R v Terewi.[2] In that band, the starting points for sentencing are generally between two and four years, but where sales are infrequent and of a very limited extent a lower starting point may be justified. The Judge said that given the number of offers to supply, the quantities involved and its commercial aspect, it was not possible to take a starting point of less than two years. Although it was difficult to work out exactly what was occurring, the offending had an “undeniable” commercial aspect.[3] The Judge accepted that it may be that the appellant was using “a significant amount of end funds” to “feed” his addiction.[4]
[2] R v Terewi [1999] 3 NZLR 62 (CA).
[3] Sentencing remarks at [29].
[4] Sentencing remarks at [29].
Accordingly, the Judge considered that a starting point of two years imprisonment for the cannabis offending on its own would have been appropriate. The Judge put the offending involving cannabis oil to one side as he did not see that as warranting any uplift in the starting point. It was very much a peripheral incident. When the class A offending was added into the mix, Judge Zohrab considered that the four year starting point suggested by the Crown was “not too far away”.[5] The Judge saw the appellant as a “vital cog” in the LSD operation and placed some weight on the combination of drugs involved.[6] However, looking at the matter on the basis of totality, the Judge took a starting point of three and a half years imprisonment. From that point, there was a 20 per cent discount for the guilty plea. Judge Zohrab acknowledged the appellant’s personal circumstances in terms of his youth and issues with drugs. For those aspects there was a further credit given leading to an end sentence of two years and four months imprisonment.
[5] Sentencing remarks at [30].
[6] Sentencing remarks at [30].
The Judge did not consider that it was possible to get to a two year sentence, which would have made home detention available. In this context, Judge Zohrab rejected the submission that the appellant was inept and naive. Rather, the Judge said he was “in it up to his eyeballs”.[7]
[7] Sentencing remarks at [32].
Accordingly, the Judge reached an end point of a term of two years and four months imprisonment. That was structured by imposing that sentence on a concurrent basis in relation to the cannabis offending and the LSD offending. A concurrent term of six months imprisonment was imposed in relation to the charge relating to cannabis oil.
The starting point
Mr Bamford for the appellant submits that the starting point should have been three years or less and that home detention should have been imposed. Three main points are made in developing this submission.
The first point advanced is that the appellant’s role and culpability in relation to the LSD offending has been overstated. Accordingly, Mr Bamford says the Judge was wrong to see the appellant as a “vital cog” in the drug dealing operation of Mr Robinson. Rather, the submission is, Mr Robinson was the principal offender. The appellant’s involvement was limited to sending out bulk text messages on four days, essentially to friends to see if they were interested in the purchase of LSD for an upcoming birthday party.
In support of this submission, Mr Bamford highlights the following two text messages sent by the appellant to associates:
6 July 2011 … yep i cn prb gt rida sm papz [LSD] 4 u it mi matez mrz 21st n same dae az myn so … we prb al b n d munt gege
…
8 July 2011 … i cn get mean papz [LSD] 2 f u wnt ne 2mra
Mr Bamford maintains that it was apparent that there was no money in these transactions for the appellant. He relies on acknowledgements that Mr Robinson said the cost was $30 a tab and that is what the appellant says he will sell it for.
The second point is an associated one. Mr Bamford submits that the appellant’s sentence is too high when compared to that of Mr Robinson.
Thirdly, it is submitted that the cannabis offending is properly characterised as at street level providing sufficient commercial benefit to service the appellant’s own drug habits.
Mr Davie for the Crown submits that the starting point of three and a half years imprisonment was available. The cannabis dealing clearly involved commercial amounts and took place on a regular basis. Some of the texts referred to the need to resupply. The LSD offending, while perhaps not as serious as that involving Mr Robinson, was serious and repetitious. The appellant was not a mere conduit. The Crown relies in this respect on the recent decision of this Court in R v Edwards.[8] In that case, the Court referred to several cases indicating that in relation to supply type offending involving small numbers of LSD tabs a starting point of around four years is appropriate.[9]
Discussion
[8] R v Edwards [2009] NZCA 269.
[9] At [12]–[14].
Taking first the submissions directed to the relationship with Mr Robinson’s offending, this is not a case where there can be a direct parity. That is because the charges the two men faced were different. Mr Robinson was initially charged with three counts of conspiring to supply LSD and two charges of conspiring to sell cannabis. After he accepted a sentencing indication,[10] one of the charges of conspiring to supply LSD was dropped. Judge Zohrab, in sentencing Mr Robinson, began with a three year starting point reduced to a final sentence of two years three months imprisonment after a discount for the guilty plea.[11] We agree with Mr Bamford that it appears that Mr Robinson is further up the chain of supply. Certainly he is the more mature of the two men, being aged 36 at the time. However, on analysis, his culpability is not in fact markedly greater.
[10] R v Robinson DC Nelson CRI-2011-042-3017, 9 February 2012.
[11] R v Robinson DC Nelson CRI-2011-042-3017, 3 April 2012.
The extent of Mr Robinson’s offending is summarised by Judge Zohrab as follows:
[5] You texted someone to get a “250” which was slang for an ounce of cannabis. An arrangement was made for this to be dropped off by an associate at your address. Then it was alleged that you have contacted the associate looking for another “20” for an associate, which you have offered to sell. Allegedly the associate had an ounce of cannabis head material for $300. Later on there was a text exchange offering to sell sids, being a reference to Uncle Sid or acid or LSD, and you have offered to sell tabs for $30. Your associate has texted around a number of your associates looking to off-load them to others. There is a further discussion asking the associate if he knew of anybody wanting to buy tabs for $30 each and you have said you have got six to get rid of. He has texted around a number of associates and they have later arranged to complete a deal. Also there was a text exchange and your associate has asked you if you have any paper, that is meaning LSD, where you have offered him tabs at $30 per tab and there has been an arrangement to collect the tabs the following day.
Accordingly, the cannabis offending with which Mr Robinson was involved was considerably more limited both as to the occasions and the amounts involved than that in which the appellant participated. In addition, as we have noted, the charges were different. It follows that we do not see any error in approach in terms of parity issues.
There is no doubt that the cannabis offending involving the appellant is placed properly in band two of Terewi. Mr Bamford accepts that. That means that a sentence of between two and four years imprisonment may be appropriate. The proper characterisation on analysis of the text messages is that the appellant was a retailer operating a little above street level. While there is little evidence of actual sales, plainly this activity was commercial and involved dealing in a range of amounts. Further, the offending disclosed took place over a one-month period. In these circumstances, a starting point in the range of two and a half to three years was available for the cannabis offending. If that is correct, it cannot be outside of the range to adopt a starting point of three and a half years imprisonment when the LSD offending is taken into account.
Discount
No issue is taken with the discount of 20 per cent for the guilty pleas. Rather, the submission is that given his age and addiction, the discount for youth and personal circumstances should have been a further 20 per cent. Mr Bamford points to indications that the appellant has found prison very difficult.
The Crown supports the Judge’s approach, emphasising the lack of insight apparent in the appellant’s pre-sentence report and the fact that it was plain he was immersed in the drug culture for a time. Mr Davie notes that he tested positive to cannabis consumption when tested as part of a pre-sentence assessment by the Addictions Service at Nelson Hospital.
We have given this appeal careful consideration reflecting the anxiety that attends the prospect of sentencing a young person like the appellant to a term of imprisonment.[12] However, as we have indicated, we consider the starting point was within range. In terms of the discount for mitigating features, again, we do not see that any issue can be taken with the Judge’s approach. In total, the appellant received a discount of about one third. For the reasons given by Judge Zohrab, his circumstances did not mandate a more generous discount.
Result
[12] R v Chankau [2007] NZCA 587 at [26].
For these reasons, the appeal against sentence is dismissed.
Solicitors:
Bamford Law, Nelson for Appellant
Crown Law Office, Wellington for Respondent
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