Miller v The Queen
[2015] NZHC 1630
•13 July 2015
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2015-425-000019 [2015] NZHC 1630
BETWEEN WILLIAM ERIC RUA MILLER
Appellant
AND
THE QUEEN Respondent
Hearing: 29 June 2015 Appearances:
B Dawkins for the Appellant
M L Wong for the RespondentJudgment:
13 July 2015
JUDGMENT OF NATION J
[1] The appellant appeals against his sentencing on 10 charges under the Misuse of Drugs Act 1975 and Psychoactive Substances Act 2013. On 26 March 2015, the appellant was sentenced to the following concurrent sentences:1
(a) two years and seven months’ imprisonment on:
(i) three charges of offering to supply LSD, two of those charges brought on a representative basis; and
(ii) one charge of offering to supply methamphetamine, a Class A drug, brought on a representative basis;
1 R v Miller [2015] NZDC 4920.
MILLER v R [2015] NZHC 1630 [13 July 2015]
(b) two years and four months’ imprisonment on two charges of possession of the Class A drug LSD for supply;
(c) six months’ imprisonment on two charges of offering to sell a psychoactive substance, each charge having been brought on a representative basis; and
(d) four months’ imprisonment on two charges of possession of a
psychoactive substance with intent to sell.
[2] All sentences of imprisonment were concurrent, so the effective sentence for all the offending was two years and seven months.
Introduction
[3] This appeal is brought under s 250 Criminal Procedure Act 2011 against the sentence of 31 months’ imprisonment imposed on the appellant in the District Court at Invercargill on 26 March 2015.
[4] Section 250 Criminal Procedure Act 2011 provides as follows:
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow the appeal if satisfied that –
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
(3) The first appeal court must dismiss the appeal in any other case.
[5] The Court of Appeal has confirmed that the enactment of the Criminal Procedure Act has not changed the approach which Courts must take with regard to an appeal.2 Ultimately, an appellate Court has to be concerned with whether or not
the sentence imposed was manifestly excessive.
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
First ground of appeal – was there a material error in the number of LSD tabs which the Judge referred to?
[6] The appeal was advanced on the basis that the sentencing Judge had made a material error of fact when, in his sentencing remarks, he referred to the appellant as having as many as “50 or more” LSD tabs and “over 50” LSD tabs.3
[7] The Crown says that no material error was made by the Judge. It says the Judge sentenced the appellant on the basis the offending involved “small quantities” of LSD, as was consistent with the facts.4 The Crown submits that the starting point adopted by the Judge and the end sentence were appropriate, given the totality of the appellant’s offending.
[8] It was apparent from the summary of facts that the Police, in investigating another unrelated matter, obtained text message data to and from the appellant’s cell phone. The data covered a period between 4 and 21 August 2014 and suggested that the appellant was involved in dealing in Class A drugs (LSD and methamphetamine) and psychoactive substances. On executing a search warrant at the appellant’s address, the Police found the appellant cutting up synthetic cannabis. In his room were items commonly associated with drug dealing, including digital scales, several unused point bags, a cannabis grinder and a number of “tick” lists. The lists showed that the sum of $1,240 was owed to the appellant.
[9] The text data, when analysed, showed that the appellant was involved in the supply of LSD, methamphetamine and synthetic cannabis.
[10] On 27 July 2014, the appellant made four offers to the same cell phone number to sell LSD saying “I still got a trip left, you keen”.
[11] Between 12 and 26 August 2014, the appellant made 11 offers via text messages to 11 different cell phone numbers to sell LSD.
3 At [18] and [29].
4 At [29].
[12] Between 6 and 7 September 2014, the appellant made four offers to sell LSD
via text messages to four different cell phone numbers, saying “I got six, I’ll do for
150, that’s 25 each” and “Got 50 cash for these dips”.
[13] The appellant offered to supply methamphetamine on 12 occasions by sending text messages to 12 different cell phone numbers.
[14] The data further showed that, between 22 and 31 July 2014 and between 1 and 31 August 2014, the appellant offered to supply psychoactive substances on over
60 occasions.
[15] The sentencing Judge considered the factors relevant to an assessment of the gravity of the offending included:
(i)the seriousness of the drugs involved (methamphetamine and LSD both being Class A controlled drugs);
(ii) the fact the offending involved a range of drugs;
(iii)the scale of the offending which spanned seven weeks and included multiple offers to supply; and
(iv)the quantities of drugs involved were “more than minor” – they could not be determined in respect of the methamphetamine offending but, as to the LSD, the Judge said there were likely “between four and 11 tabs of LSD perhaps as many as 50 or more”.
[16] The Judge accepted the lead offending related to the offers to supply (and possession for supply of) LSD and methamphetamine. After canvassing a large number of sentencing decisions, the Judge determined a starting point of four years and three months’ imprisonment was appropriate for the lead offending. That term was uplifted by six months to take into account the four charges of dealing in psychoactive substances. Taking into account the totality principle, the starting point was reduced to four years’ imprisonment.
[17] The Judge considered a discount of 10 per cent was warranted to take into account the appellant’s history of mental ill-health, and the fact he engaged with a psychiatrist whilst on remand. The Judge applied a further discount of 25 per cent to reflect the appellant’s early guilty pleas.
[18] The final sentence imposed was two years and seven months’ imprisonment.
[19] In written submissions and before me, Mr Dawkins for the appellant carefully analysed the text messages. He submitted the texts showed the appellant had a total of no more than 11 LSD tabs available for supply at the time he was texting their availability. Mr Dawkins explained how the evidence showed that, at worst, the appellant had actually been in possession of nine LSD tabs between 27 July and 7
September 2014 or, at best, from his point of view, just five.
[20] Mr Dawkins also explained why the Judge had been in error when he said in his sentencing remarks that, with the tabs of LSD for supply, the appellant had “perhaps as many as 50 or more if your last message, “Got 50 cash for these dips,” refers to 50 tabs.” Mr Dawkins explained that at sentencing, the Judge did not have details of all the text messages that had been sent or received on the appellant’s phone. The text which the Judge had referred to as perhaps indicating the appellant had 50 tabs available had been preceded by an earlier text in which the purchaser had said “I only want two for 50”.
[21] The Crown accepted that these texts did not therefore support the inference that the appellant had 50 tabs available.
[22] I do not consider the Judge’s mention of the appellant possibly having 50 tabs of LSD was material to his sentencing. In relation to the quantity of LSD that might have been offered for sale, the Judge said:
I regard the quantities offered to be more than minor. In relation to LSD you referred to one “trip” (on 27 July) “four dips” on the 11 offers between 12 and 26 August and at least six tabs of LSD in respect of the four offers between 6 and 7 September 2014. You said on that occasion, “I got six, I’ll do for 150, that’s 25 each.” You then said, “Got 50 cash for these dips.” It is not clear whether the last message refers to you having 50 tabs which you were willing to sell for cash; you have told me today it does not. But in my
assessment, at a minimum, the offending involved you having somewhere between four and 11 tabs of LSD for supply and perhaps as many as 50 or more if your last message, “Got 50 cash for these dips,” refers to 50 tabs.
[23] It is clear from these remarks that the Judge was uncertain as to whether there were 50 tabs.
[24] Later on, the Judge said that the Crown had referred him to R v Young where a starting point of five years’ imprisonment (which took account of Young’s previous convictions) was taken on charges of possession of LSD for supply, possession of cannabis for supply, possession of utensils in circumstances where three bags of
cannabis, 26 tabs of LSD and various drug-related articles were found.5 The Judge
said:6
The scale of your offending is different from Young’s. The number of LSD tabs and the quantity of methamphetamine in your possession is uncertain, the range being somewhere between six and over 50 depending (on how the text messages are interpreted) but overall I categorise you being involved in “small quantities” as that term was used in R v Edwards and R v Stanaway.
[Citations omitted.]
[25] The Crown submitted that the appropriateness of the sentence for possession and offering to supply LSD and methamphetamine was not dependent on the accuracy of any assessment as to the quantities of drugs the appellant had available for supply. Referring to Dodd v R, Ms Wong submitted that the sentencing Judge had to make an evaluative finding.7 A sentencing Judge was entitled to infer that the appellant was in a position to “make good” on his various offers to supply
methamphetamine. The Crown referred to the facts in this case disclosing that there were 16 different offers to supply LSD. It also submitted the mischief addressed by a charge of offering to supply, identified by the Court in R v Brown, is the attempt by an accused person to arouse interest in another in the supplying or administering of a
controlled drug.8
[26] In assessing the gravity of the appellant’s offending, the Judge noted “there was no real level of sophistication” about the offending, the appellant had “used only
5 R v Young HC Hamilton CRI-2004-075-559, 3 February 2005.
6 R v Miller, above n 1, at [29].
7 Dodd v R [2013] NZCA 138.
8 R v Brown [1978] 2 NZLR 174 (CA).
one cell phone throughout the period and save for the use of code there were no other extraordinary features” to the activities. Although he sentenced the appellant on the basis he had been involved in a commercial enterprise, he also noted there may have been an element of his funding his own synthetic drug habit in the offending. The Judge took into account the fact there was no evidence of actual sales beyond the inference that could be drawn from the “tick” lists which were found during the search and a text message which showed he was not prepared to supply one person any further drugs because he was owed a significant amount already.
[27] The appellant’s offending was more serious because he had been involved in offering to supply different drugs, including the Class A drug methamphetamine. The charge in relation to that had been brought on a representative basis. The offending spanned 12 to 29 August 2014. The Judge noted the appellant had offered to supply methamphetamine on 12 occasions to 12 different cell phone numbers.
[28] The charge of possession of a psychoactive substance with intent to sell was also a representative charge covering the period 22 to 31 July 2014. Related to it was a representative charge of offering to sell psychoactive substances during that period. The Judge noted there had been an offer to sell psychoactive substances via text messages to three different cell phone numbers. There were further charges relating to possession of a psychoactive substance with intent to sell and offering to sell a psychoactive substance, offending between 1 and 31 August 2014. The offers to sell had been made on 58 separate occasions via text messages to 18 different cell phone numbers.
[29] The Crown rightly submitted that the appellant’s overall offending indicated the appellant was involved in a substantial drug dealing endeavour involving two types of Class A controlled drugs and psychoactive substances. The Court of Appeal have said that dealing in more than one class of controlled drug constitutes a serious
aggravating feature.9 That sort of offending is the more serious because it increases
the risk that, through the offender’s trading activities, customers will graduate from the less harmful to the more injurious drugs.
9 R v Edwards [2009] 2 NZCA 269 at [15].
[30] The Judge referred to R v Edwards in which the Court of Appeal had indicated a starting point of four years might generally be appropriate for offending involving “small quantities” of LSD.10 This was how he categorised the quantity of LSD involved in the appellant’s offending.
[31] In assessing the gravity of the appellant’s offending, the Judge engaged in the evaluative exercise which was appropriate and required. Although he referred to the possibility of the appellant having 50 tabs of LSD for supply, he was uncertain as to that. He sentenced the appellant on the basis that he was offering to supply only small quantities of LSD. I thus do not find there was a material error in the way he referred to the possibility of the appellant having 50 tabs of LSD. Nor do I find that the way the Judge referred to that possibility has materially affected the sentence ultimately imposed. The appellant thus cannot succeed on the first ground which was advanced for his appeal.
Second ground of appeal – manifestly excessive starting point
[32] The second ground of appeal was that the original starting point sentence for the LSD and methamphetamine offending of four years and three months was manifestly excessive and the effective starting point sentence of four years’ imprisonment for all the offending was manifestly excessive. The Crown correctly points out that the Court of Appeal has repeatedly emphasised that the focus of an appeal against sentence must be on the end sentence, not on the way in which it has
been reached.11
[33] The Judge was mindful of the guidance from the Court of Appeal in R v Edwards and the guidance from the Court of Appeal in the earlier case of R v Stanaway.12
[34] Counsel referred the sentencing Judge to a number of cases where the High
Court and Court of Appeal had dealt with sentencing in related circumstances. It is
apparent, from the Judge’s sentencing remarks, there were some 17 judgments of the
10 At [13].
11 Lavea v R [2014] NZCA 192 at [20]; R v Faifua CA287/05, 27 March 2006 at [33].
12 R v Miller, above n 1, at [29] citing R v Edwards [2009] NZCA 269 at [13]; R v Stanaway [1997]
3 NZLR 129 (CA).
High Court and Court of Appeal which he considered relevant and also another judgment of the District Court. The Judge thus applied s 8E of the Sentencing Act
2002 and took “into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances”.
[35] In referring to each of the cases which had been referred to him, the Judge referred briefly to some of the features of each case that had been referred to him. Where the sentence or starting point was significantly less than the sentence he adopted, the Judge said he considered the offending in that case to be less serious.
[36] In detailed, thorough and careful submissions, Mr Dawkins has referred to some ten of those cases. He referred in some detail to the nature of the offending and the surrounding circumstances of each case. He then relied on that analysis to support the submission that the Judge was in error in classifying those cases as less serious. The Judge had also referred to certain cases which he considered involved offending of a comparable level. Mr Dawkins relied on his analysis of the relevant features of those cases to support a submission that the offending in those cases was in fact more serious than that of the appellant’s.
[37] On this appeal, it is not necessary for me to embark on the same extensive analysis of those cases. The focus must be on the end point.
[38] There is a detailed summary of sentences imposed in cases involving possession for supply of methamphetamine in the judgment of the Court of Appeal in R v Anslow.13
[39] In R v Fatu, the Court of Appeal indicated appropriate sentencing bands for the supply of methamphetamine where there was an element of commerciality. 14
Those bands included:
(a) band one – low level supply (less than 5 g) – two years to four years’
imprisonment;
13 R v Anslow CA182/05, 18 November 2005.
14 R v Fatu [2006] 2 NZLR 72 (CA).
(b) band two – supplying commercial quantities (5 g to 250 g) – three years
to nine years’ imprisonment.
[40] The Court of Appeal has said these bands are applicable where there has been an actual supply. It has also noted there has to be a discount against those bands when there is no proof of an actual supply or sale.15 It is apparent from the sentencing notes that the Judge here was conscious of the need to make this distinction. The bands in R v Fatu, nevertheless, provide some guidance from the Court of Appeal as to the seriousness of this offending.
[41] The Court of Appeal has said it would not ordinarily be assisted by the citation of High Court cases where there are sufficient Court of Appeal decisions to indicate clear principles which should be followed on sentencing.16
[42] There was no error in the way the Judge referred to features of the offending in assessing the gravity of the appellant’s overall offending. The features of the offending, which he referred to in assessing the gravity of the offending, justified him concluding that the appellant had to be sentenced on the basis he had been involved in a commercial enterprise, involving numerous offers to supply Class A drugs and separately the psychoactive substances. The offending did span six weeks and involved numerous offers to a significant number of people. The evidence indicated he was set up to supply the relevant drugs commercially and that he was doing so.
[43] In reaching the end sentence, Judge Turner allowed a significant discount for the totality of the offending and a 35 per cent discount for the appellant’s personal circumstances and the guilty plea. The Judge took into account the fact that there was no evidence of actual sales beyond the inferences that could be drawn from the circumstances and text messages already referred to.
[44] I do not consider the Judge made any material error in sentencing the appellant. I consider it was open to the Judge to find that the lead offending, relating
15 R v Te Rure [2008] 3 NZLR 627 (CA); R v Hereora [2012] NZHC 3422.
16 R v Shelford CA3/06, 22 March 2006.
to possession for supply of LSD and methamphetamine, warranted a starting point of four years and three months’ imprisonment. Further, I find that an uplift by six months to take into account the four charges of dealing in psychoactive substances was also appropriate.
[45] Given the gravity of the offending, Mr Dawkins’ careful analysis of other cases does not persuade me that the end sentence arrived at by the Judge was in error.
Conclusion
[46] The final sentences arrived at were within the range of what was appropriate for this appellant, given the overall gravity of his offending.
[47] The appeal is accordingly dismissed.
Solicitors:
Bill Dawkins Law, Invercargill
Crown Law, Wellington
Preston Russell Law, Invercargill.
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