McLean v The Queen

[2005] NZCA 210

IN THE COURT OF APPEAL OF NEW ZEALAND

CA102/05

THE QUEEN

v

CAROLETTE TRACEY MCLEAN

Hearing:15 August 2005

Court:William Young, Goddard and Gendall JJ

Counsel:M J Lillico and G Fairbrother for Appellant

A Markham for Crown

Judgment:18 August 2005 

JUDGMENT OF THE COURT

The appeal is allowed and the sentence on all counts is reduced to 25 months imprisonment.

REASONS

(Given by William Young J)

Introduction

[1]       This is an appeal against an effective sentence of three years imprisonment imposed by Ronald Young J on 4 March 2005 following the appellant’s pleas of guilty to 12 counts alleging the possession of precursor substances (namely pseudoephedrine-based tablets) with the intention that they be used for the commission of offences against s 6(1)(b) of the Misuse of Drugs Act 1977 and two associated conspiracy counts.

Background

[2]       The appellant came to police attention as a result of an electronic surveillance operation targeting a property in central Hawkes Bay suspected of involvement in methamphetamine production.  In the course of this operation, the police intercepted telephone calls by the appellant which indicated that she was a pseudoephedrine “shopper”.

[3]       Police investigations revealed relevant purchases made by the appellant from a number of pharmacies.  When she made these purchases the appellant had used her own name (which she supplied on the police notification forms) and had proffered her driver’s licence by way of identification.

[4]       The Crown case focused on 12 specific purchases made by the appellant between 10 September and 2 October 2004.  The material put before us in the course of argument indicates that the tablets acquired would have enabled the production of between nine and 14 grams of methamphetamine with a retail value of between $9,000 - $13,000. These calculations do not allow for the quantity of pseudoephedrine which should be attributed to the two conspiracy charges but Ms Markham did not attempt to persuade us that this should be treated as material.

[5]       The appellant was 29 at the time of her offending and is now 30.  She has two children (aged seven and 11 years) who, up until her sentencing, were living with her.  She had a difficult upbringing and has been a drug user. At the time of the offending she was using methamphetamine.  It is clear that the appellant became a “shopper” to assist with funding purchases of that drug. 

[6]       The appellant has previous convictions but they are few in number and of limited relevance in the present context.  She impressed the pre-sentence report writer as well-motivated to address the causes of her offending.  By the time the appellant appeared for sentence, she had stopped using methamphetamine, had secured full‑time employment and had severed her links with her co-offenders.  She had been realistic as to the sanctions likely to be imposed and had put in place, in advance, appropriate arrangements for the care of her children.  The pre-sentence report writer assessed her risk of re-offending as being low.  She was able to produce favourable character references which were placed before the Court.

[7]       The appellant notified the Crown that she would plead guilty a week before the trial and the guilty plea was entered on the morning that the trial was scheduled to begin.  This must be categorised as a late plea.  We were told that the appellant had unsuccessfully sought to challenge the admissibility of the telephone intercepts.  So late a plea of guilty can merit only limited recognition as a mitigating factor.

The approach of Ronald Young J

[8]       The appellant appeared for sentence with two of the other people involved generally in the same offending.

[9]       In his sentencing remarks, Ronald Young J began by noting that the appellant’s purchases were undertaken for commercial gain with knowledge that the tablets were to be used in the production of methamphetamine.  He reviewed her personal circumstances and the reasons she had given to the pre-sentence report writer for her offending.  He noted the Crown submission that “a starting point before aggravating features” of two and half years was appropriate.  (We interpolate that the appellant’s counsel had suggested that the appropriate sentence was two years with leave to apply for home detention).  Then, having referred to the circumstances associated with the other offenders, the Judge concluded that the proper starting point sentence for the appellant was three and a half years which he reduced to three years to allow for the pleas of guilty.  He did not attempt to reconcile his starting point with that suggested by the Crown.

[10]     The other offenders were also sentenced to terms of imprisonment but, as there is no complaint as to disparity, the details of those sentences are of no moment for present purposes save that the Judge was not prepared to grant leave to apply for home detention for the one offender in respect of whom that issue arose.

[11]     We record that other associated offenders were sentenced by Gendall J on 10 February 2005.  Again there is no need to go into the detail of the sentences imposed except to record that one offender in respect of whom home detention was an option was granted leave to apply.

The appellant’s argument before this Court

[12]     The primary basis of the appellant’s challenge to her sentence is that the Judge had inadequate evidence before him of the likely yield resulting from her offending and that, in any event, the potential methamphetamine yield of the tablets that she purchased was too low to justify a three and a half years starting point.  We note that the yield calculations to which we have referred were not made available to the Judge.

[13]     The appellant placed reliance on a number of decisions, the most relevant of which are R v Posimani CA369/04, 14 February 2005 (theft and possession of the precursor substance Robitussin with a likely yield of 2.3 kgs of methamphetamine, starting point four and half years), R v Bunning CA378/04 (likely yield 55 ‑ 58 grams, starting point of “at least three and a half years”), R v Wang and Gao HC Auckland CRI-2004-092-008789 22 February 2005 (likely yield 202 ‑ 272 grams, starting point four and a half years) and R v Bruce HC Auckland CRI-2003-090-10625 27 July 2004 Paterson J (“shopper” whose offending was more extensive than the appellant’s, starting point “somewhere between two years and two and a half years”).  We were also referred to R v Stephenson HC CHCH T10/02, 30 August 2002 Panckhurst J which involved a “low level shopper” facing charges of conspiracy to manufacture methamphetamine and possessing that drug for supply (before its reclassification as a Class A drug) and where the Judge fixed a starting point of two years and three months.

[14]     So the appellant’s argument is that the Judge’s starting point was simply too high.  In the event that her sentence is reduced to two years or less, she seeks leave to apply for home detention.

Crown submissions

[15]     Ms Markham drew our attention to the reclassification of methamphetamine from a Class B to a Class A controlled drug in May 2003.  She submitted that precursor offending associated with the intended manufacture of Class A drugs is necessarily more serious than the corresponding offences where the drug to be manufactured is a Class B drug.  She asked us to bear this consideration in mind when considering some of the earlier cases involving possession or supplying of drugs associated with methamphetamine manufacture.

[16]     She nonetheless recognised that the sentence was difficult to justify in light of existing sentencing practice.

Discussion

[17]     An initially slightly surprising feature of the case is that the Judge’s starting point was one year higher than that suggested by the prosecutor.  There is, however, a simple explanation.  Ronald Young J used the term “starting point” in its orthodox sense, as meaning the appropriate sentence before allowing for factors which were personal to the offender (including pleas of guilty).  But the prosecutor saw the expression as not encompassing aggravating features associated with the offending, ie the number of purchases and the time over which the offending took place.

[18]     Section 12A(1), (2) and (3) of the Misuse of Drugs Act provide:

12A     Equipment, material, and substances used in production or cultivation of controlled drugs

(1)       Every person commits an offence against this Act who supplies, produces, or manufactures—

(a)       Any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or

(b)      Any precursor substance—

knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.

(2)       Every person commits an offence against this Act who has in his or her possession—

(a)       Any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or

(b)      Any precursor substance—

with the intention that the equipment, material, or substance is to be used in, or for, the commission of an offence against that provision.

(3)       Every person who commits an offence against this section is liable on conviction on indictment,—

(a)In the case of an offence against subsection (1), to imprisonment for a term not exceeding 7 years:

(b)      In the case of an offence against subsection (2), to imprisonment for a term not exceeding 5 years.

It will be noted that the offences are drafted in a manner which does not distinguish between different classes of drugs.  On the other hand, ordinary sentencing principles suggest that precursor offending in respect of a Class A drug will be more serious than similar offending in respect of a Class B drug.  So we agree with Ms Markham’s submission that sentencing decisions in precursor cases associated with methamphetamine as a Class B drug no longer provide reliable guidance now that it has been re-classified as a Class A drug.

[19]     The fact remains, however, that the offending for which the appellant was sentenced carried a maximum penalty of only five years imprisonment.  In light of that consideration, the limited scope of the offending suggests that the Judge’s starting point of three and half years was high; an impression which is well and truly confirmed when regard is had to customary sentencing practice.  In saying this we have particular regard to the decisions to which we have referred in [13] above, all of which, other than Stephenson, involved post-reclassification offending.  In our view the appropriate starting point was two and half years.  We reduce that by five months (a figure which in percentage terms is equivalent to the discount allowed by the Judge) for mitigating factors which are personal to the appellant.  This produces a sentence of 25 months imprisonment.

[20]     So the appeal is allowed and the sentence (which is applicable to all counts) is reduced to 25 months imprisonment.  Given the length of the substituted term, we are not required to consider whether to grant leave to apply for home detention.

Solicitors:
Sladden Cochrane & Co, Wellington for Appellant
Crown Law Office, Wellington