Mullen v Police

[2012] NZHC 1436

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000018 [2012] NZHC 1436

BETWEEN  JUSTIN DANIEL MULLEN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 June 2012

Counsel:         P H Surridge for Appellant

I R Murray for Respondent

Judgment:      22 June 2012

JUDGMENT OF GENDALL J

[1]      This is an appeal against a sentence of three years six months’ imprisonment imposed in the Wellington District Court on 27 January 2012 by District Court Judge Thomas.    The  appellant  pleaded  guilty  to  three  representative  charges  namely offering to supply the class A drug methamphetamine; offering to sell a class C drug cannabis; and conspiracy to sell cannabis.  The sentence of three years six months’ imprisonment was imposed on the lead charge being a representative charge of offering to sell methamphetamine.   There were concurrent terms of 12 months’ imprisonment on the offences of offering to sell cannabis and conspiring to sell that drug.

[2]      The appeal is out of time but the delay is minor and no prejudice arises and accordingly, leave to appeal out of time is granted.

MULLEN v NEW ZEALAND POLICE HC WN CRI-2012-485-000018 [22 June 2012]

Background facts

[3]      These can be quite shortly stated.  Between 1 February 2011 and 4 May 2011 the appellant was involved in significant drug dealing, involving offering to supply methamphetamine, offering to supply and conspiring to supply cannabis.

[4]      Execution  by the  Police  of  search  warrants  on  the  appellant’s  cellphone disclosed that over that period he had offered to supply methamphetamine to others on 52 occasions, and to supply cannabis on 79 occasions.   Further, that he had conspired with his partner to supply cannabis on 10 separate occasions.   A later search warrant was executed on the appellant’s property in August 2011 and there digital scales were found, items used to weigh and use methamphetamine, a closed circuit television camera and an audible alarm which is commonly used by those engaged in drug dealing.  The appellant could not dispute the fact that he had been dealing in Class A and Class C drugs in a very significant commercial way.

[5]      The appellant first appeared in the District Court at Porirua on 3 August 2011 and entered guilty pleas on 8 November 2011.

[6]      When sentencing the appellant Judge Thomas referred to Mr Surridge’s submission that the appropriate starting point was “about three years” and that the offending fell within the first band of the guideline judgment of R v Fatu.[1]   Judge Thomas referred to a presumption that those involved in dealing with class A drugs are likely to be imprisoned.   Her Honour then mentioned other cases of similar gravity where starting points of four years’ imprisonment (R v Bevin[2]) and four and a half years’ imprisonment (R v Rawlinson[3]) were adopted.

[1] R v Fatu [2006] 2 NZLR 72 (CA).

[2] R v Bevin HC New Plymouth CRI-2009-443-24, 6 November 2009.

[3] R v Rawlinson HC Auckland CRI-2009-070-1557, 10 December 2010.

[7]      Judge   Thomas   regarded   it   as   aggravating   that   there   was   inherent premeditation in the offending which covered 38 days, and said the number and frequency of the offers to supply were particularly aggravating.  She said there were

52 offers to supply amounts of methamphetamine which totalled about 22.5 grams.  I

am not sure that premeditation is aggravating where there are representative charges

of offering to supply drugs, because by the very nature of the criminal actions they have to be planned – in the sense not “spur of the moment”.  However the number and frequency of the offers are aggravating, especially where there are representative charges, as was the case here.

[8]      The Judge referred to Mr Surridge’s submission that there was no Police evidence of the purity of the methamphetamine.  Her Honour said “the fact remains that there were 52 offers to supply the Class A controlled drug methamphetamine.[4]

[4] New Zealand Police v Mullen DC Wellington CRI-2011-091-00284 at [17].

Fixing  of  the  starting  point  at  four  years’ imprisonment  was,  in  terms  of  Fatu guidelines, either at the top of band 1 or at the bottom of band 2.  Because of the additional cannabis charges the Judge incorporated an uplift from that starting point to five years’ imprisonment.   She did not incorporate any further uplift for the appellant’s prior drug convictions (eight convictions for possession of cannabis oil, methamphetamine and one for selling cannabis plant).   The discounts applied by Judge Thomas were four months, because of what she said was the appellant’s stated remorse, and a further 25 per cent discount for his guilty pleas.  This resulted in the lead sentence of three years six months’ imprisonment.

[9]      The  primary  thrust  of  the  appeal  originally  was  contained  in  written submissions prepared by different counsel.  It was that the Crown did not prove that the methamphetamine involved was of 60 per cent purity or above, therefore Judge Thomas was wrong to rely upon the categorisation as provided in R v Fatu.  Those written submissions contended that there should have been a disputed facts hearing to enable the sentencing judge to make a finding as to purity, but none occurred.

[10]     However Mr Surridge does not pursue that point with any vigour.  R v Fatu makes it quite clear that if the summary of facts is disputed, such should be signalled by an  accused  and  the  issue  addressed  by the  Court.    But  the  appellant  never advanced any claims as to the purity of the methamphetamine.  Nor did he seek a disputed facts hearing.  What was said in the District Court by counsel was that the Crown had not proven purity.  But this is usually impossible where the offending is simply offering to supply.   Unless the drug that is to be supplied is located in an

offender’s premises or on his/her possession, or evidence is given by the offender on

that issue, or (if the offer to supply translates into actual supply) by the recipient it is impossible for proof of the purity of drugs to be given.  If there had been a disputed facts hearing the Crown could not have adduced any evidence other than that which related to the multiple telecommunications and references to prices which were to be or being paid.  In the absence of any explanation by the accused, it would leave it to the sentencing Judge to draw his/her own conclusions and inferences from all the evidence that is presented.  But a disputed facts hearing was not sought.

[11]     I record now that no criticism could be directed at Mr Surridge for adopting that stance.  If he had been instructed to do so, and that had eventuated, it is hardly likely to have been of advantage to his client as that client would then have had to give evidence as to actual supplies and of what in fact was the make-up of the drug that he had agreed to supply.

[12]     In the end however, Fatu guidelines as to starting point bands are no more than that.   The starting point in the end has to be fixed depending on the overall culpability of the offender, the degree of commerciality and the role the offender plays in the part of drug dealing.  Primary offenders (such as this appellant) might expect starting points towards the higher end of the relevant band than those whose role is less.   The Court must take into account all principles and purposes of sentencing referred to in ss 7 and 8 of the Sentencing Act including aggravating and mitigating features.

[13]     In argument in support of the appeal in this Court, Mr Surridge emphasised that the appellant had cooperated with the police and apart from the evidence as to offers for supply he agreed he, in fact, had supplied.  Mr Surridge said that Judge Thomas to large extent glossed over his argument, that the Court could not use Fatu considerations as the appropriate measure for fixing the starting point.  He attributes this to the time constraints of a busy sentencing list.   He submitted that a starting point of three years’ imprisonment at the most was all that was required and that because of personal factors, an end point of no more than two and a half years was justified. For those reasons he submitted the sentence was manifestly excessive.

[14]     I am not satisfied that Judge Thomas in fact glossed over the submission that R v Fatu categorisation was inappropriate.  She refers to counsel’s submission that there was no evidence as to purity.  What she did however, was take a starting point of four  years’ imprisonment  because of the totality of the offending,  indicating significant commerciality.  The proper approach when a level of purity is disputed is to identify the appropriate band and to consider whether there is proof of the level of purity when choosing a starting point within that band.  The High Court has said in R

v Bouavong:[5]

[5] R v Bouavong [2012] NZHC 232 at [14]–[16.

The estimated quantities and values of the drugs involved provide some assistance in assessing an appropriate starting point, but they are often not capable  of  precise  determination.    In  part, this  is because  the  purity of methamphetamine is variable.  ...  the courts have allowed some discount for methamphetamine which is less than the standard 60 percent purity of “P”.

...

The purity of the drugs supplied or possessed for supply is undoubtedly a factor which may be taken into account in assessing the starting point, no doubt on the basis that poor quality drugs are assumed to have a less destructive effect on the end users.  But the primary aims of sentencing in cases of commercial dealing in methamphetamine are denunciation and deterrence.  Where the offending is on a large scale, the fact that some of the drugs supplied are of inferior quality may have far less significance than the quantities of drugs and the financial gains involved.

[15]     The Court of Appeal in R v Faifua said:[6]

[6] R v Faifua CA287/05, 27 March 2006 at [31].

Once the band has been determined (on the basis of quantity of methamphetamine involved), the sentencing Judge is then required to consider  a  myriad  of  factors  in  determining  where  within  the  band  the starting point in that particular case should be fixed.  In that assessment, the precise quantity of drugs is but one factor among many ...

[16]     As I have already said, the only evidence as to purity in this case could have come from the appellant but he did not seek to give it nor did he give it.  Because the purity in some of the transactions may have been below 60 per cent (as contended, but that is pure speculation) it does not mean that Fatu guidelines are to be ignored.

But they are just guidelines and a sentencing Judge must assess as a starting point

what is an appropriate guideline bearing in mind the total gravity and culpability of

the accused’s offending.

[17]     Although it was not the case that the appellant appeared to be making large amounts of money he undoubtedly was involved in dealing in a very significant way for commercial gain.  The police estimated turnover, over the period to which the charges related, was approximately $21,000.    The starting point for the methamphetamine offending was fixed at the top of band 1 and the bottom of band 2 of Fatu.  It cannot be said that it was inappropriate.

[18]     The Judge was charitable in not providing an uplift for the eight previous drug offences including one of dealing in cannabis, and she was generous in giving a full 25 per cent discount for guilty pleas.  The discount for that and remorse came to a total of 30 per cent.  Given that the guilty plea on the lead sentence of offering to supply did  not  come  until  late  November  2011,  namely three  months  after  the appellant was originally charged and after seven appearances in the District Court, it would have been well open to the Judge to fix a discount for the guilty plea of no more than 20 per cent.   On that basis, an end sentence of a little over three years eight months could have been arrived at.

[19]     A sentencing exercise is not an arithmetical or mathematical process.  In this case the Judge was benevolent in not increasing her notional starting point by an uplift through the aggravating personal circumstances of the appellant’s previous convictions.   On the other hand, it might be that Her Honour was a little stern in increasing the starting point from four years to five years because of the allied cannabis charges.

[20]     Viewed in its totality, I can find nothing wrong at all with the starting point of four years.  An uplift of no more than nine months might have been required for the cannabis offending and a discount of 25 per cent to reflect both the guilty pleas and remorse is the most that could have been allowed.   Therefore a sentence of a little over three years six months would have been arrived at.  Even allowing for the initial four months’ discount together with a discount of 20 per cent for a guilty plea (which should have occurred) a sentence of three years six months results.  In the

end the process is not one of mathematical calculation, but when viewed in the round it could not be said that a sentence of three years six months’ imprisonment was manifestly excessive so as to require the Court’s intervention.

[21]     Accordingly the appeal against sentence must be, and is dismissed.

J W Gendall J

Solicitors:

Surridge & Co, Porirua for Appellant
Crown Solicitor, Wellington for Respondent