Munro v The Queen

[2010] NZCA 566

IN THE COURT OF APPEAL OF NEW ZEALAND

CA211/2010
[2010] NZCA 566

BETWEENDEAN BRIAN MUNRO

Appellant

ANDTHE QUEEN

Respondent

Hearing:22 November 2010

Court:Harrison, Ronald Young and Keane JJ

Counsel:V C Nisbet for Appellant

F Sinclair for Respondent

Judgment:30 November 2010 at 10.30 am

JUDGMENT OF THE COURT

Application for extension of time within which to appeal dismissed.

REASONS OF THE COURT

(Given by Keane J)

[1]        On 7 November 2008 Dean Munro was sentenced by Simon France J in the High Court, Wellington, for the supply of the class A controlled drug methamphetamine for about a 14 month period to imprisonment for six years, three months. 

[2]        Mr Munro was sentenced concurrently to lesser terms for possession of lysergide (LSD), cannabis, a precursor substance, utensils and firearms.  He was sentenced cumulatively to a three month term for theft of electricity.  His effective sentence was six years, six months.

[3]        Mr Munro, who has served two years of the sentence imposed, applies for an extension of time within which to appeal.  Mr Nisbet, not his counsel on sentence, explained to us that until he was very recently instructed Mr Munro had not been able to retain counsel.  Mr Munro wished to pursue his application a good deal earlier than has proved possible.

[4]        The point Mr Munro wishes to pursue on appeal, should an extension of time be granted, is that the Judge assumed, relying on estimates taken from tick-lists, that he sold some 225 grams of methamphetamine.  In fact, he contends, he only ever bought four ounces of methamphetamine, that is 112 grams.  The volume of sales recorded in the tick-lists, he contends, was inflated on sentence in three ways.  His sentence supposedly rests on a significant error of fact. 

[5]        The Crown opposes an extension of time being granted. Mr Munro was sentenced on an agreed statement of facts on which, it contends, the Judge was entitled to rely.  The sentence he imposed on that agreed basis lay within his discretion.  Even if Mr Munro's own estimate were accepted, it contends, the sentence imposed would not be manifestly excessive. 

Sentencing process

[6]        On 24 July 2008, a matter of days before his trial on an indictment alleging 12 offences, Mr Munro pleaded guilty before Gendall J to the nine offences for which he was sentenced.  The Crown offered no evidence on the balance in the indictment, as to which he was discharged. 

[7]        On 29 August 2008, the allocated date for sentence, there was an unresolved issue as to the quantity of methamphetamine Mr Munro had supplied to others.  The Crown's case against him rested entirely on tick-lists found at his home on 22 April 2008.  No methamphetamine was found, or cash.

[8]        This issue of scale was significant to the sentence to be imposed, as Wild J recorded in a minute that day.  It went to where within band two of R v Fatu[1] Mr Munro’s offence lay, and thus the correct starting point for sentence for that offence.  Wild J adjourned sentence to enable that to be agreed or for a disputed facts hearing.

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

[9]        On 7 October 2008 Gendall J was told by Mr Munro's then counsel that a disputed facts hearing would not be needed and when Simon France J came to sentence Mr Munro on 7 November 2008 he was able to rely on a joint memorandum of counsel, dated 4 November 2008.

[10]       In that memorandum it was agreed that the tick-lists revealed Mr Munro had purchased ounce lots of methamphetamine for $15,000 and on-sold these for $800 a gram; that he had purchased eight ounces, some 225 grams, for $120,000, and sold that quantity to some 20 purchasers for $180,000 and that his profit would have been some $60,000. 

[11]       The memorandum also disclosed the only point then still in dispute and that was one of inference.  The Crown's case was that Mr Munro was a dealer on a commercial scale.  His position was that he purchased to fund his habit, that he used part of what he purchased, and any profit went to feed his habit.  Also, that his profit was notional for another reason.  Some of the debts recorded had never been paid. 

[12]       In sentencing Mr Munro the Judge adhered closely to what had been agreed, tailored to what Mr Munro was prepared to concede.  Thus, the Judge said, to take one instance, while the Crown spoke of Mr Munro having 20 customers, Mr Munro himself only accepted 12. 

[13]       The Crown contended for a starting point towards the top of Fatu, band two, which for supplies between five and 250 grams attracts a three to nine year starting point.  It contended for seven to eight years.  Mr Munro's then counsel contended for four to five years.  The Judge took a starting point of seven and a half years.  As he said:

The scale of the sales cannot be ignored.  What was done with any profits does not diminish the reality of very significant commercial sales.  The regular purchasing of ounce lots is usually the domain of serious dealers ...

Proposed appeal points

[14]       Mr Munro, in his affidavit in support of his application, says that he pleaded guilty on advice days before his trial without having had an opportunity to examine the tick-lists fully.  He was then, he says, “in a negative frame of mind and I wanted to get on with serving my sentence”. 

[15]       Mr Munro contends that in early 2006 he bought four ounces of methamphetamine and sold it slowly over the following year at a small mark‑up to a group of friends, who also occasionally supplied him, without seeking to gain financially.  He sold only to finance his habit. 

[16]       On sentence, Mr Munro contends, the effect of his tick-lists was inflated in three ways.  His record of debts that he owed to others was added in, as was his estimate of what he expected to obtain by future dealing.  Transactions recorded in notes made on the spot later reflected in a master list were double counted. 

Conclusions

[17]       The difficulty Mr Munro faces in his application is that the very issue he now seeks to re‑open came under close scrutiny before sentence and the Judge was invited to sentence him on an agreed footing. 

[18]       In the memorandum to which Mr Munro's counsel subscribed on his behalf it was explicitly agreed that he had purchased eight ounces of methamphetamine, not four, and had bought and sold at agreed prices.  The only issue on sentence was whether he had been frankly commercial or intent only to support his own habit.

[19]       We are unable to accept that his then counsel, whose competence is not in issue on this appeal, would have signed that memorandum or invited the Judge to sentence on it, without Mr Munro's express instructions.  There can be no question either that on the facts agreed the sentence the Judge imposed was well open to him, indeed was merciful. 

[20]       The agreed quantity sold, 225 grams of methamphetamine, sits close to the top of band two.  Mr Munro was in possession of firearms and had a history of drug offending.  The Judge did not take express account of either aggravating factor and, if he had, might well have taken a higher starting point.  As the Judge said, whether Mr Munro sold seeking a frank profit or to support his habit, the scale on which he sold had to be decisive. 

[21]       Even if, moreover, the Judge had been invited to sentence Mr Munro on the basis that he sold no more than 112 grams of methamphetamine, when sale on that scale is coupled with the two aggravating factors just referred to, the sentence the Judge imposed, though perhaps severe, would not have been manifestly excessive.

Result

[22]       In the result, we consider, the public interest in finality must prevail.  There is no reason in the interests of justice why an extension of time should be granted to Mr Munro to pursue this late appeal on a basis irreconcilable with that agreed for the purpose of sentence.  Nor would such an appeal have any prospect of success.  The application for an extension of time is declined. 

Solicitors:

Crown Law Office, Wellington for Respondent