Meech v Police
[2014] NZHC 2590
•21 October 2014
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI 2014-425-000031 [2014] NZHC 2590
ROSS WILLIAM MEECH Appellant
v
POLICE Respondent
Hearing: 21 October 2014 Counsel:
D G Slater for Appellant
E Higbee for RespondentJudgment:
21 October 2014
JUDGMENT OF WHATA J
[1] Mr Meech pleaded guilty to the following charges:1
(a) three charges of theft of property worth more than $1,000 respectively occurring between 1 October 2013 and 27 April 2014, one on 2 May
2014 and one between 14 May 2014 and 20 May 2014;2
(b) one charge of burglary which occurred between 24 April 2014 and
27 April 2014;3 and
(c) one charge of supplying the class B drug morphine between 26 April
2014 and 7 May 2014.4
1 Police v Turner DC Invercargill CRI-2014-025-936, 14 August 2014.
2 Crimes Act 1961, ss 219 and 223(b). Each offence is punishable by a term of imprisonment not exceeding seven years.
3 Section 231. This offence is punishable by a term of imprisonment not exceeding ten years.
MEECH v POLICE [2014] NZHC 2590 [21 October 2014]
[2] He was sentenced to a total sentence of two years and ten months’ imprisonment. He now challenges that sentence as manifestly excessive. Two factors are highlighted for my consideration, namely:
(a) The Judge erroneously believed that a cell phone used to sell drugs was stolen; and
(b)The Judge, relying on observations of the Court of Appeal in R v Wallace,5 wrongly categorised the drug dealing as “small commercial dealing in class B drugs” attracting “sentences up to five years imprisonment”.
The facts
[3] The facts giving rise to these charges were set out in Judge Turner’s
sentencing notes as follows:6
[2] The facts of your offending are these. First, the theft between October 2013 and April 2014. The victim of the offending is your mother and sister. During this period they noted numerous items had been stolen from your mother’s address and motor vehicle. This included cash, a Navman and iPod, a guitar, jewellery, hard drives, memory sticks, a gas heater, gas bottle, food, all of which is said to be valued at over $5,000.
[3] The next offence was a burglary committed over ANZAC weekend in 2014. Your mother had the responsibility of feeding a friend’s cat while the owner of the property was away. On 26 April you used the key that your mother had to gain entry to the address. You stole a 42 inch television, two boxes containing 20 morphine capsules, 40 other tablets which also contained morphine, and food.
[4] The following day you sold the television to your associates. You used the cellphone to contact associates to find buyers for the drugs and you later sold all of the morphine capsules and the other tablets which contained morphine, save for some which you consumed yourself.
[5] On 1 May the victim of the next offence offered you accommodation. You told her that you were having problems with your mother, that you had nowhere to live, that you had been kicked out of home and you were looking for accommodation. On this basis and out of the generosity of her heart the victim allowed you to stay with her. You repaid
4 Misuse of Drugs Act 1975, s 6. This offence is punishable by a term of imprisonment not exceeding 14 years.
5 R v Wallace [1999] 3 NZLR 159 (CA).
6 Police v Turner, above n 1.
that by stealing from her a laptop, a carry case, a charger, hard drive, digital camera and car reader, all valued at $1440, from the lounge in the address. Within a short period of time, and by that I mean within hours, you offered to sell the laptop and accessories to other associates.
[6] Finally, on 9 May you appeared in Court and you were granted bail to live at an address in Invercargill. Between 9 and 20 May you stole two tonne of metal and paint sprayer valued at $3500 from that address. The items belonged to a tradesman who was storing the equipment at that property. You sold those items as scrap metal between those dates.
[4] The drug offending was taken as the lead charge. The Judge stated that the purpose of selling the drugs was to fund his own synthetic cannabis drug habit. He considered, in light of Wallace, a starting point of 24 months to be appropriate. There was no uplift as there was no prior related offending. A discount of 25 per cent was applied to reach an end point of 18 months imprisonment.
[5] As to the other offending:
(a) A starting point of 20 months imprisonment was considered appropriate for the burglary charge. A discount of two months was allowed for co-operation with the police, along with a 25 per cent credit for his early guilty plea.
(b)A starting point of 13 months imprisonment was adopted for the theft concerning his mother, reduced by four months for both co-operation and guilty plea.
(c) A starting point of six months was adopted for the theft while boarding, reduced to four and half months imprisonment after allowing credit for guilty plea.
(d)On the final charge of theft whilst on bail, a starting point of nine months imprisonment was taken, reduced to six and a half months for Mr Meech’s co-operation and guilty plea.
[6] This led to a tentative end point of 51 months imprisonment, or four years, three months. However, after reviewing the totality of the offending, a total end sentence of two years, ten months’ imprisonment was imposed, comprised of:
(a) Supplying morphine: one year, three months imprisonment.
(b)Burglary: one year imprisonment, cumulative on the supply of morphine charge.
(c) Theft from his mother: seven months imprisonment, cumulative on the above two charges.
(d)Theft from the victim who offered him accommodation: four months imprisonment, concurrent on the above charges.
(e) Theft whilst on bail: six months imprisonment, concurrent on the above charges.
Jurisdiction
[7] I must allow an appeal if I am satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.7
Error simply means material error and may include a sentence which is manifestly excessive, wrong in principle or flawed on its face.8
Analysis
[8] I am prepared to assume that the Judge erred by referring to a stolen cell phone as an aggravating factor. But it is not a material reason to allow the appeal. Indeed, against a backdrop of multiple thefts of large items, this error does not warrant reconsideration of the sentence.
[9] I agree, however, with Mr Slater that the rote treatment of all supply of class
B drugs as “commercial dealing” could lead to error in sentence. The Court of
7 Criminal Procedure Act 2011, s 250
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
Appeal in R v Wallace mandated a nuanced response to sentencing for drug dealing given the varied circumstances in which it might occur.9 I also accept that a one off opportunist transaction does not readily support a finding of commercial dealing in the usual sense of that phrase. Indeed the salient passage of the Wallace decision is concerned with commercial “operations” when it states:
[32] For smaller operations, but representing commercial dealing, starting points of up to 5 years are appropriate. This necessarily must be a broad category to enable sentencers to reflect the many varied circumstances that can arise.
[10] The Crown cited R v Orchard.10 In that case a starting point of two years, three months imprisonment for possession of a class B drug for supply, involving five 30 milligram tablets and four 60 milligram tablets of morphine sulphate was upheld on appeal. This confirms the serious way this Court must treat modest drug offending. But in that case there was evidence of a precursor substance and an ability to convert morphine to heroin. This reinforces the existence of a commercial operation that is distinguishable from the present case. A more nuanced approached was, for example, taken in Smith v R where a sentence of home detention was
imposed on a charge concerning Ritalin for supply.11
[11] Balanced against this it has to be recalled that the maximum sentence of
14 years for dealing with class B drugs reflects a firm legislative policy of deterrence, whatever the nature of the dealing.12 Mr Meech stole 20 morphine capsules and 40 Sevredol tablets amounting to 600 milligrams of morphine. He later sold the capsules and tablets, less the ones consumed by him. While this offending could be said to be opportunistic, it was nevertheless supply of class B drugs for commercial gain. The underlying policy of deterrence reinforced in Wallace
therefore remains apposite.
[12] Returning then to the sentence. A starting point of 24 months is excessive. It is higher, in fact, than the starting point in Orchard. Mr Slater submits that a
12 month starting point is commensurate with the offending here. I do not agree.
9 R v Wallace, above n 5, at [32].
10 R v Orchard CA162/01, 28 August 2001,
11 Smith v R [2013] NZHC 1057.
12 See for example R v Latta [1985] 2 NZLR 504 (CA).
That would not serve the policy of the legislation to deter sale of class B drugs. Rather, I consider that a starting point of 18 months better reflects the nature of the offending in this case, namely its one off opportunistic character.
[13] Significantly, however, the Judge’s end point of 15 months mitigates the significance of this error. In arithmetic terms the Judge arrived at an effective end point of 15 months as against an end point of about 14 months once a discount for guilty plea is taken into account. Moreover, I am also satisfied that the sentence overall is well within range. In Black v Police13 I had the opportunity to canvas a range of sentences involving multiple theft and other dishonesty offending. It is quite clear that the present sentence is well within the range of sentencing for this
type of criminal behaviour.
[14] As Mr Higbee aptly put it, “this is an example of serious drug fuelled offending”. Mr Meech embarked on a crime spree involving theft and burglary to support, it appears, his drug habit. The offending was indiscriminate involving six victims and at times involved serious breach of trust of persons who provided support for him, including his mother, sister and a good Samaritan that took him in. One of the thefts occurred while he was on bail. Mr Meech also has a significant criminal history, having been sentenced to imprisonment on 19 separate occasions, including multiple convictions for burglary and theft (as recently as 2008).
[15] Accordingly, Mr Meech’s appeal is dismissed.
Solicitors:
D G Slater, Invercargill
Preston Russell, Invercargill
13 Black v Police [2012] NZHC 1507.
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