Moore v The Queen
[2015] NZHC 2565
•20 October 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-463-42 [2015] NZHC 2565
BETWEEN MARK HARTLEY MOORE
Appellant
AND
THE QUEEN Respondent
Hearing: 19 October 2015 Counsel:
L L Owen for Appellant
A J Gordon for RespondentJudgment:
20 October 2015
JUDGMENT OF BREWER J
This judgment was delivered by me on 20 October 2015 at 11:30 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors: Rotorua Law Shop Ltd (Rotorua) for Appellant
Gordon Pilditch (Rotorua) for Respondent
MOORE v THE QUEEN [2015] NZHC 2565 [20 October 2015]
Introduction
[1] On 3 July 2015, the appellant, Mr Moore was sentenced by Judge PW Cooper to 18 months’ imprisonment on the following charges:1
(a) One charge of selling a psychoactive substance,2 which carries a
maximum penalty of two years’ imprisonment;
(b) Three charges of possession of psychoactive substances for supply,3
each of which carries a maximum penalty of two years’ imprisonment.
[2] Mr Moore appeals the sentence on the basis that it was manifestly excessive in the light of the prescribed maximum penalty, his overall culpability and the sentence that another offender received.
Facts
[3] The Psychoactive Substances Amendment Act 2014 came into effect on
8 May 2014. Section 88 of the Act made it unlawful to be in possession of or sell or supply a psychoactive substance.
[4] Psychoactive substances are commonly known as “synthetic cannabis”. There is a number of different product names for these banned psychoactive substances. The names include “Karma”, “Puff”, “Southern Lights”, “Apocalypse”, “Hydro Budz AK-47”, “Hydro Budz Hindu Kush”, “Voodoo”, “W.T.F”, “Haze”, “White Rhino” and “Anarchy”. The products are usually packaged in 2 or 2.5 gram measures and are sold in small cardboard packets or metal tins. The street value of these products in Rotorua is approximately $15 to $20 per gram, which is $30 to $40
per tin or packet.
1 R v Moore [2015] NZDC 12738.
2 Psychoactive Substances Act 2013, s 70(1)(a).
3 Section 70(1)(c).
Possession for supply: charge one
[5] On 4 September 2014, the Police executed covertly a search warrant at a storage shed in the Superior Storage Facility at Katoro Drive, Rotorua. The Police entered shed number 243 which was being rented by Mr Moore. In the shed the Police found three cardboard boxes:
(a) The first box contained 21 x 2.5 gram tins of “W.T.F” and 40 x 2.5 gram tins of “Apocalypse”.
(b)The second box contained 35 x 2.5 gram tins of “W.T.F” and 13 x 2.5 gram tins of “Karma”.
(c) The third box contained 70 x 2.5 gram tins of “Karma”.
[6] In total, 179 tins containing 447.5 grams of banned psychoactive products were located in the search of the shed. The street value was between $6,712.50 and
$8,950.
[7] The Police left the shed undisturbed.
Possession for supply: charge two
[8] On 19 September 2014, the Police searched shed 243 again. It was still being rented by Mr Moore. The drugs present on 4 September 2014 had gone. In their place the Police found a box containing 100 x 2 gram packets of “Hydro Budz AK-
47”. The 200 grams located has a street value of between $3,000 and $4,000.
Possession for supply: charge three
[9] On 23 October 2014, the Police executed a third search warrant at Mr Moore’s storage shed. They found a box containing 85 x 2.5 gram tins of “Apocalypse” and 189 x 2.0 gram packets of “Hydro Budz Hindu Kush”. In total
274 packets containing 590.5 grams of banned psychoactive products with a street value of between $8,857 and $11,810 were located.
[10] At 9:30 am that same day, the Police executed a search warrant of
Mr Moore’s home. In Mr Moore’s bedroom the Police found:
(a) 1,067 grams of “PB”, the psychoactive chemical used in making
“Karma” in two bulk packages. This has a street value of between
$16,005 and $21,340.
(b)80 x 3 gram packets of “Hydro Budz Hindu Kush”. The 240 grams has a street value of $4,800.
(c) 50 x 2.5 gram tins of “Apocalypse”. The 125 grams has a street value of $2,500.
[11] In total, 1,432 grams of psychoactive products were located at Mr Moore’s
house with a street value of between $21,480 and $28,640.
[12] The Police located also $4,000 cash in a plastic container in Mr Moore’s
wardrobe and $785 cash in his wallet on top of his bedside table.
Sale charge
[13] The Police carried out an analysis of Mr Moore’s cellphone. It was clear from text messages sent and received by him for the period 9 July 2014 to
30 September 2014 that Mr Moore was selling psychoactive products. The Police analysis revealed that Mr Moore had been selling these products almost daily during this period. The texting was very overt with brands, quantities, prices and pick up, or drop off, locations openly discussed.
Overall offending
[14] A total of 2,670 grams of banned psychoactive substances were found in
Mr Moore’s storage shed and at his home address. This has a street value of between
$40,050 and $53,400.
[15] When spoken to by the Police, Mr Moore admitted the facts I have outlined. He accepted that all the synthetic cannabis products located were banned
psychoactive products. In explanation, he stated that he used synthetic cannabis himself and that he also sold it to bring in some extra money. He said the reason for the storage shed was to get some of the product out of the house as he feared being ripped off.
Judge Cooper’s sentence
[16] After setting out the facts of the offending, Judge Cooper made the following comments about Mr Moore:
[7] You have no relevant previous convictions. You have some convictions in Australia but they are not going to influence sentencing today. The pre-sentence report says that you are 40 years of age. It says that you show little remorse and you lack insight into the offending, its consequences and its impact on others. It says that you sold the synthetic cannabis to clear debts of your own and to obviously make a monetary gain. It does talk about a serious health condition that you have. You have a serious liver condition which would ultimately require a liver transplant, and you are on very significant pain relief to deal with that situation.
[8] The recommendation in the pre-sentence report is in fact for a sentence of home detention.
[17] Judge Cooper then turned to the gravity of the offending:
[11] In assessing what the starting point in this case should be, I take into account the scale of the offending and that is that there was 2.6 kilograms plus seized. The nature of the packaging indicates both bulk packaging where there were two lots of a half of kilogram and the rest packaged up in small amounts for street level type dealing 2.5 grams, two grams, and three gram amounts. I note the total value of between $40,000 and $53,000, and I also note, although it is not specifically mentioned in the summary of facts, that in the 15 days between 4 September 2014 and 19 September 2014, in other words, between the time of two searches of the property, all the product that was seen in the first search had been removed. In other words,
179 tins of synthetic cannabis had gone from the unit and, presumably, been disposed of by way of sale and replaced with a further 100 packets of a
different product. The same product but a different brand.
[18] Judge Cooper adopted a starting point of 18 months’ imprisonment for the possession of synthetic cannabis for supply charges. He regarded the offending as involving significant commerciality. He increased that starting point by a further
12 months for the supply charge. This was a total start point of two years six months’ imprisonment.
[19] The Judge then reduced Mr Moore’s sentence by four months to take into account his health situation. He also reduced the sentence by a further eight months for Mr Moore’s guilty plea. This brought the sentence down to one year six months’ imprisonment.
[20] Judge Cooper considered whether home detention was appropriate:
[14] This is a very significant commercial operation in relation to synthetic cannabis. It is not merely the operation of a person at street level, but a person further up the chain than that. If this was cannabis offending, it would be at the higher end of band 2 of R v Terewi [1999] 3 NZLR 62 and I take the view that a sentence of home detention would not meet the sentencing needs of this case. It would not be sufficient to deter and denounce what you have done, or to hold you accountable for your offending, nor would it promote in you a sense of responsibility, something that is not evident from the pre-sentence report at the moment, and nor would it reflect the significant concern regarding the harm that synthetic cannabis is doing in the community.
[15] I have made a reduction in the sentence because of your health condition, but there is nothing that I have seen in the pre-sentence report that would indicate that could not be managed in prison.
[21] Accordingly, Judge Cooper sentenced Mr Moore to 18 months’ imprisonment and imposed the following special conditions for a six month period following Mr Moore’s release:
(a) To attend and complete an appropriate alcohol and drug programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
(b)To complete such other counselling, treatment or programmes as may be directed by the Probation Officer.
The related sentence
[22] Mr Moore came to the attention of Police due to their surveillance of
Mr Young. He was Mr Moore’s supplier.
[23] Mr Young was sentenced, also by Judge Cooper, on 26 August 2015 for charges of possessing psychoactive substances, for supply of psychoactive
substances, for manufacturing a psychoactive substance without a licence and for possession of a Class C drug. His offending was much more serious than that of Mr Moore.
[24] Mr Young’s offending is summarised by the Judge:4
… On 26 September 2014 and 9 and 16 October 2014, the police executed covert search warrants at a storage unit used by you. Evidence was obtained from that unit but nothing was removed from it. The unit had been set up as a clandestine area for the manufacturing, mixing, packaging and supplying of synthetic cannabis. The police found scales, snap lock bags, hundreds of labels of different brands for synthetic cannabis, bulk synthetic cannabis ready for packaging, a large storage container for mixing together the ingredients to make synthetic cannabis and a blender for the same use. Searches were also undertaken at your business premises, your home and another storage unit to which you had shifted the manufacturing operation.
In total, the police found 57 kilograms of plant or herbal material for mixing with other ingredients to make synthetic cannabis, 16.12 kilograms of pre- packaged synthetic cannabis in the storage unit and at your shop and approximately 6000 snap lock bags, packets or tins of synthetic cannabis, some labelled, some unlabelled. Also in the storage unit were a capsule filler machine and 959 empty capsules and 12 small storage containers holding the Class C controlled drug[s], TFMPP 251 grams and BZP 2.9 grams. A further
50 caps of those Class C controlled drugs were found at your home.
Police also found a large amount of cash at your home and in your motor vehicle, cash totalling $181,403. The police estimate that if the 57 kilograms of bulk plant or herb material was converted into synthetic cannabis, that substance would result in synthetic cannabis with a street value of between
$855,000 and $1.1 million. The police estimate that the 16 kilograms of pre- packaged synthetic cannabis had a street value of between $240,000 and
$320,000 and that the total value of the TFMPP and BZP found was in the order of $35,000 to $89,000 and that excludes a further 173 grams of thosesubstances which were suspected but not analysed and thought to have a value of between $23,000 and $57,000.
[25] Of relevance is how Judge Cooper assessed the starting point for Mr Young’s psychoactive substance offending. The Judge noted that this was a significant commercial enterprise. He said that the “synthetic cannabis operation included the mixing, which is a form of manufacture of the ingredients necessary to make synthetic cannabis and the wholesale and retail selling of the synthetic cannabis, the packaging of synthetic cannabis and the wholesale and retail selling of the synthetic
cannabis in very large quantities with very high returns”.5
4 R v Young [2015] NZDC 16730 at [2]–[4].
5 At [8].
[26] Judge Cooper adopted a starting point of three years in relation to the BZP and TFMPP supply charges. He then said that “[i]n relation to the totality of the synthetic cannabis operation, and this encompasses the manufacture, possession for supply and the sale, an uplift of three years’ imprisonment would be appropriate”.6
But on a totality basis, he reduced the overall starting point from six years’
imprisonment to five years’ imprisonment.
Grounds of appeal
[27] Mr Moore appeals his sentence on the following grounds:
(a) The sentence imposed was manifestly excessive in the light of the prescribed maximum penalty for the offending, Mr Moore’s overall culpability and the sentence imposed on Mr Young.
(b)Judge Cooper erred in failing to give Mr Moore credit for his lack of criminal history; and
(c) Judge Cooper erred in failing to exercise his discretion to sentence
Mr Moore to home detention by overstating Mr Moore’s culpability.
Approach to appeal
[28] An appeal against sentence must be allowed if the Court is satisfied there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.7 The principles behind the law are well known, and not changed by the Criminal Procedure Act 2011.8 A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.9
[29] Because an appellant must satisfy the Court that a different sentence should be imposed, the High Court will not intervene where the sentence is within a range
6 At [10].
7 Sentencing Act 2002, s 250.
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
9 At [33], [35].
that can be properly justified by accepted principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather than the process by which the sentence is reached.10
Starting point
Mr Moore’s submissions
[30] Ms Owen for Mr Moore submits that the Court erred in assessing an
appropriate starting point for Mr Moore’s offending for the following reasons:
(a) While the offending was on a commercial scale and involved up to
$53,000 worth of synthetic cannabis, a large portion of this synthetic cannabis was possessed for consumption by Mr Moore. Mr Moore’s supply of drugs to others was limited to certain of his associates, rather than sales to members of the general public.
(b)Mr Young’s culpability far outstrips Mr Moore’s and there is a lack of proportionality, and therefore parity, between the sentences imposed on them.
(c) Parliament set the maximum penalty for this offending at two years’ imprisonment. This is significantly less than the penalties for commercial class C drug offending. Judge Cooper failed to give the appropriate weight to the available maximum penalty when imposing this length of sentence on Mr Moore.
Sentencing for supply (or possession for supply) of psychoactive substances
[31] This appeal is the first appeal of a District Court sentence for possession for supply of psychoactive substances. My judgment is likely to be of some guidance to the District Court for future sentencing in this area. Accordingly, I will discuss the offending more broadly than I would do otherwise.
[32] I have looked to R v Terewi,11 the guideline judgment of the Court of Appeal for cultivation of cannabis offending, to categorise offending in this area:
(a) Category one (minor offending): This consists of possession of a small amount of synthetic cannabis for supply by the offender without any real element of commerciality. For example, the offender might use the drug himself and occasionally supply it to friends and associates either at cost or with a small margin for profit. A non- custodial sentence will usually be appropriate. A short sentence of home detention or imprisonment may be necessary where there is persistent offending.
(b)Category two (moderate offending): This consists of supply on a moderate scale with the object of deriving a profit. In view of the maximum penalty for this offence being two years’ imprisonment, a starting point of between six months and 12 months’ imprisonment is likely to be appropriate for this level of offending.
(c) Category three (serious offending): This consists of supply on a large, commercial scale. The supply operation will usually be sophisticated and well-organised. An appropriate starting point is likely to be greater than 12 months’ imprisonment.
[33] I think it will be helpful (at least until appellate authority provides more guidance) to have regard to the way Courts analyse cannabis offending to decide the culpability of the offender. This is because supplying cannabis will often be factually similar to supplying synthetic cannabis.
[34] The great distinction between supplying cannabis and supplying synthetic cannabis is the maximum sentence Parliament has mandated for each type of offending – eight years as opposed to two years imprisonment. This must be taken to reflect Parliament’s assessment of the potential for harm to the community of each type of offending. Accordingly, while it may well be helpful to assess culpability by
looking to the factual distinctions identified by the Courts in cannabis offending cases, it will not be helpful to look at the sentencing levels. A scaling down of a comparable cannabis sentence by 75 per cent, say, would not be right because sentencing must be more nuanced than that. It is likely, for example, that the end sentence in synthetic cannabis cases will be non-custodial in greater proportion than in cannabis cases. A maximum sentence of eight years’ imprisonment gives greater scope to respond to degrees of culpability with custodial sentences than does a maximum sentence of two years.
[35] In my view, the best way to approach sentencing in this area is by applying first principles. Assess the factual culpability of the offender – perhaps by reference to cannabis dealing cases – assign the case to a category of offending, and adjust for the circumstances of the offence and the offender.
Discussion
[36] In this case, I adopt the possession of psychoactive substances for supply charges as the lead offences. Mr Moore had in his possession a total of 2,670 grams of banned psychoactive substances. This has a street value of between $40,050 and
$53,400.
[37] I agree with Judge Cooper that had this been cannabis offending, it would have been at the higher end of category two of R v Terewi. Mr Moore supplied psychoactive substances on a significant scale with the object of deriving a profit. Accordingly, I place Mr Moore’s starting point at the higher end of my second category set out above at [32].
[38] There is also the charge of selling. Mr Moore’s supply operation was significant and continuous. As the Judge identified, Mr Moore managed to dispose of 179 tins of synthetic cannabis, which is almost 500 grams of synthetic cannabis, within 15 days. While I acknowledge that Mr Moore no doubt used some of this synthetic cannabis for personal use, it is highly likely, given the quantities and the timing, that a large proportion of this amount was on-sold. And even if Mr Moore was selling the drug to a limited number of associates, he was still disseminating a harmful, illegal substance into the community in significant quantity.
[39] In the light of my categorisation of psychoactive substance offending, the three charges and culpability in similar cannabis offending, I am of the view that an appropriate start point for the possession for supply charges is 12 months’ imprisonment. I uplift that by three months to take into account the conviction on the sale charge. This brings the start point to 15 months’ imprisonment. The uplift could be six months, but on a totality basis 15 months is the appropriate point in the range.
[40] I must also consider the principle of parity. Section 8(e) of the Sentencing Act 2002 requires me to take 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”.
In MacFarlane v R,12 the Court of Appeal recently restated the test as to whether
disparity between the sentences of co-offenders will lead to a reduction in the sentence under appeal. It said:
Disparity between the sentences of co-offenders will lead to a reduction in the sentence under appeal only if the difference is so marked as to lead a “reasonably minded independent observer aware of all the circumstances of the offence and of the offenders” to “think that something had gone wrong with the administration of justice”. The difference must be “unjustifiable” or “gross”. A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.
(footnotes omitted)
[41] Judge Cooper was of the view that Mr Young’s psychoactive substance offending warranted an uplift on his Class C offending of around three years’ imprisonment. I note that Mr Young had 57 kilograms of bulk substance in his possession and 16 kilograms of pre-packaged synthetic cannabis. This had a street value of over $1.3 million. This was substantially more culpable offending than that of Mr Moore. I note also that Mr Young was convicted of charges for manufacturing psychoactive substances without a licence as well as supply charges. Judge Cooper took into account both the supply charges and manufacturing charges when reaching the three year uplift. Identifying an uplift is not the same thing as setting a starting
point. In my view, if Mr Young had appeared for sentencing on the synthetic
12 MacFarlane v R [2012] NZCA 317 at [24].
cannabis charges alone, then his start point would have begun to be assessed at the upper end of my category three. When all the charges are taken into account it would be over three years’ imprisonment.
[42] Mr Young’s sentence reflected his own position. It was different to Mr Moore’s position. The lead charges related to Class C drugs and the three years for the synthetic cannabis related charges was an uplift. Even if I were to leave Judge Cooper’s sentence undisturbed, I would not find a disparity. As it is, I have found a significantly lower starting point is appropriate.
Adjustments
[43] Judge Cooper gave a reduction of around 15 per cent to take into account Mr Moore’s health situation. Neither Ms Owen nor the Crown appears to challenge the size of that discount. It is consistent with the approach mandated by the Court of Appeal in M (CA91/2012) v R.13 Applied to the starting point I have assessed, this equates to a reduction, in the round, of two months.
[44] Ms Owen submits that a further discount should have been awarded for
Mr Moore’s lack of relevant previous convictions.
[45] Section 9(2)(g) of the Sentencing Act 2002 provides that previous good character is a mitigating factor that the Court is required to take into account. I accept that an offender’s good character can be set off against the sentence that would otherwise be appropriate.14 The absence of previous convictions is evidence
of previous good character.15 But the discount given for previous good character
will be limited where the offender can demonstrate nothing positive other than a
13 M (CA91/2012) v R [2013] NZCA 325 at [54]. The Court said:
A review of the case law in this area, which is extensive, establishes that the extent to which age and ill health can be treated as mitigating factors and the amount of discount given for that varies according to the particular circumstances of the offender and the offending. There is no discernible pattern, because both the circumstances of the offender and of the offending are so varied. Generally however the reductions given are limited. Whether a discount is appropriate and the amount of a discount is a matter of fact and degree and turns on particular circumstances of the case.
14 R v Findlay [2007] NZCA 533 and R v Davidson [2011] NZCA 356.
15 R v Hockley [2009] NZCA 74; Manawaiti v R [2013] NZCA 88 and Quinlan v R [2013] NZCA
634.
clean record, especially when the offender is at high risk of reoffending and has demonstrated no remorse.16
[46] Mr Moore has no previous convictions at all in New Zealand. It is unclear from Mr Moore’s criminal history in Australia whether or not he was convicted of the four historic offences listed, two of which are driving offences and two of which relate to personal use of drugs. The Judge took no notice of them for sentencing and neither will I – save to observe that they are not indicative of a glowing character.
[47] I note also that in recent years prior to his offending Mr Moore took in a number of teenage boys as foster children. He describes those boys as having gone “off the rails” and sees taking the boys in as a way to pay back society for his own wrongs and recognising that he was once in the same situation. However, it is not unduly cynical to observe that with his dealing in synthetic cannabis, Mr Moore might not be the best role model for them.
[48] The pre-sentence report states that Mr Moore displayed no remorse for his offending. The writer states that Mr Moore felt compelled to offend to clear his debts and to remove the stress he was under by having to support himself through a sickness benefit. The report writer expresses concern as to his complete lack of victim empathy in respect of the social damage done to the community by his supplying psychoactive substances to members of the public. But I note also that Mr Moore’s risk of harm to others is classified as low.
[49] I have considered the letter that Mr Moore wrote in August 2015 in which he acknowledges the impact that his offending has had on those connected to him. He expresses remorse for the effect that his offending and subsequent imprisonment has had on his family and a foster child in his care.
[50] I am not of the view that Mr Moore is entitled to a discount for previous good character, nor that he has tangibly experienced remorse.
[51] Finally, Mr Moore pleaded guilty to all four charges at the earliest possible stage. He is entitled to a discount of 25 per cent. This results in an end sentence of, in the round, 10 months’ imprisonment.
Conclusion on sentence of imprisonment
[52] I have reached the conclusion that an appropriate sentence of imprisonment for Mr Moore’s offending would be 10 months’ imprisonment. This is considerably less than the sentence Judge Cooper imposed on Mr Moore. Accordingly, I find the Judge’s sentence to be manifestly excessive.
Home detention
[53] I am required to consider whether the sentence of imprisonment should be commuted to a sentence of home detention.17
[54] Mr Moore suffers from liver lesions which requires him to take 30 mg of Oxycontin (slow release tablets) every 12 hours to manage his pain. Prior to his incarceration, Mr Moore was a sickness beneficiary: he was unable to work because of the chronic pain he suffers. Ms Owen submits that part of the Court’s rationale for imposing a sentence of imprisonment rather than home detention was that Mr Moore’s medical condition would be appropriately managed in prison. Ms Owen submits, however, that Corrections has not adequately managed Mr Moore’s illness. She submits that for this reason Mr Moore’s sentence should be commuted to one of home detention.
[55] I am in full agreement with Judge Cooper in his reasoning as to why home detention for Mr Moore is not appropriate. Mr Moore is a mid-level, and successful, dealer in synthetic cannabis. The Judge’s assessment of the needs to deter and denounce, to hold Mr Moore accountable and to promote a sense of responsibility – especially in the light of the pre-sentence report – is, with respect, succinct and accurate.
[56] I do not consider that the material before me as to how Mr Moore’s medical condition has been managed by Corrections should cause me to commute an appropriate sentence to one which would be otherwise inappropriate. Ms Owen’s submissions on this point are to the effect that the only remaining issue is that “of late the prison staff have not been administering the appellant’s medication every
12 hours as required. Instead he has been administered this medication at intervals of anywhere between five and 19 hours between dosages”. Ms Owen’s instructions are that Mr Moore suffers pain if his medication is delayed. The severity of the pain is not established, but what is clear is that if Ms Owen’s instructions are correct then Corrections staff have an obligation to remedy the situation. If they do not, then Mr Moore has other remedies within the legislation and rules going to the rights of prisoners. This is not a ground for varying Mr Moore’s sentence.
Outcome
[57] The appeal is allowed. Mr Moore’s sentence of 18 months’ imprisonment is
quashed and replaced with a sentence of 10 months’ imprisonment. I maintain the release conditions imposed by Judge Cooper.
Brewer J
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