Packer v The Queen

[2004] NZCA 102

IN THE COURT OF APPEAL OF NEW ZEALAND

CA75/04

THE QUEEN

v

KARLY-MAY PACKER

Hearing:23 June 2004

Coram:McGrath J
Paterson J
Doogue J

Appearances:  Y R Summers for Applicant

B J Horsley and J L Moreland for Crown

Judgment:28 June 2004 

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1]       Karly-May Packer applies for leave to appeal out of time against a sentence of 16 months imprisonment imposed upon her by Judge Atkins in the District Court at Palmerston North for having some 1.28 kilograms of dry cannabis plant in her possession for the purposes of sale.  The delay in appealing is minimal and, no point being taken by the Crown in respect of it, leave to appeal is granted.

[2]       The Judge deferred the commencement of the sentence to enable the applicant to apply for home detention, giving her leave for that purpose largely because the applicant was breastfeeding a four month old infant and also had a five year old daughter at the time of sentencing.  We are informed from the Bar that she was granted home detention.

[3]       The appeal is brought upon the ground that the sentence imposed is manifestly excessive.

Background

[4]       In March 2003 a search warrant, unconnected with the applicant’s offence, was executed at the home where the applicant lived with her de facto partner.  The search disclosed cannabis in both a wet and drying form in three areas of the property.  Also located during the search were two electric scales, a small quantity of cannabis oil and a number of “point bags” commonly used in the sale of packaging other drugs.

[5]       The applicant pleaded guilty to the offence approximately one week prior to trial.

[6]       The pre-sentence report relating to the 25 year old applicant indicated that she accepted responsibility for the cannabis but said there were other parties involved in the offending.  She said that at the time of the offending she was herself a user of cannabis and was motivated in the offending both by the cannabis she would receive and the monetary gain from its sale. 

[7]       The report noted the applicant was no longer a user of cannabis and had addressed and was willing to further address the factors that contributed to her offending.  Other positive comments were made about the applicant’s steps to rehabilitate herself.

Judge’s sentencing remarks

[8]       After traversing the background the Judge referred to the respective submissions of counsel, noting, in addition to factors already traversed, that the applicant had no previous convictions. 

[9]       The Judge came to the conclusion that the appropriate starting point was a sentence of two years imprisonment.  He then took into account the mitigating factors, chief among them being the late guilty plea.  He noted the absence of previous convictions and the level of seriousness.  He then imposed the sentence under appeal and granted leave to apply for home detention.

Submissions

[10]     For the applicant Ms Summers has sought to emphasise factors that she says reduce the applicant’s culpability and increase the mitigating factors relating to her.  She submits that when this is done a starting point of less than two years would have been appropriate, with a significant reduction of more than the eight months that was adopted for all the mitigating factors she submits were present.  In respect of culpability factors Ms Summers stresses the absence of paraphernalia related to supply, the allegedly low-grade cannabis plant involved and the fact that some of the cannabis was undoubtedly for the applicant’s own use.  A further factor relating to culpability that was stressed was that there was a true distinction between possession for supply, as here, and actual supply, which involved a greater degree of sophistication than here.  In respect of mitigating factors Ms Summers stresses the guilty plea, cessation of use of cannabis and engaging in alcohol and drug counselling some six or seven months prior to the guilty plea, undertaking a Family Start Programme, attempting to do all that she could to make herself a good parent and the absence of previous convictions.  In addition, the effect of a sentence of imprisonment on the two children was stressed.  In particular Ms Summers pointed to the fact that this applicant has rehabilitated herself and that that factor should have outweighed the need for deterrence and denunciation.

[11]     After reviewing some of the decisions in this area Ms Summers submits that there is no reason to take a two year starting point, particularly when in the present case there was only a poor commercial potential, which could not generate funds of any significance.  Indeed it is submitted that the circumstances are such that a non-custodial sentence could have been considered.  She relied upon the decision of this Court in R v Edbrooke (CA169/00 27 July 2000) as an example of a case where that had been the result.  However, that was a case with peculiar features of its own that makes it of doubtful relevance in any consideration of the present case.

[12]     For the Crown it is submitted that this was clearly a commercial operation involving a significant quantity of cannabis.   It is submitted that if this case is compared with one such as R v Keefe (CA275/02 28 November 2002), the course adopted by the sentencing Judge can be seen to be entirely appropriate.  In that case the Judge imposed a final sentence of two years imprisonment having taken the same starting point.  This Court upheld the term of imprisonment.  In the present case there was double the quantity of cannabis involved in that case.  In any event the Crown submits that the general principle that sentences of imprisonment should be imposed in respect of drug offending which is commercially motivated as a deterrent is of paramount importance in this area.  Personal circumstances are therefore of much less significance than in respect of other areas of offending.  It is said for the Crown that a reduction of eight months from the starting point was ample to reflect the mitigating features relied upon by the applicant.  It is submitted that some of the factors stressed for the applicant are better described as an absence of aggravating features, rather than factors that could properly be described as mitigating.  The discount given was plainly for much more than the guilty plea, given that it was late.  The sentencing Judge took into account all the mitigating features relating to the applicant.  He took steps to ensure that the children’s interests were protected by deferring the commencement of the sentence to assist the applicant’s application for home detention notwithstanding that the offending had taken place in the home. 

[13]     Thus the Crown submits that the ultimate sentence was well within the Judge’s sentencing discretion and cannot be considered to be manifestly excessive.

Discussion

[14]     We cannot say that a starting point of two years imprisonment and a final sentence of 16 months imprisonment is manifestly excessive having regard to the circumstances before the sentencing Judge.  The commercial nature of the quantity of cannabis involved made it inevitable that the sentencing Judge had to impose a sentence of imprisonment.  He has given a generous allowance for the mitigating circumstances relating to the applicant, including the commendable steps by the applicant to rehabilitate herself.  The final sentence cannot be said to be disproportionate to the total circumstances of the offence and the offender or the sentences imposed for similar offending.  The Judge, in granting leave to apply for home detention and deferring the sentence until the application for home detention could be dealt with, was doing his best to ensure that the innocent victims of the applicant’s offending, namely her children, were properly protected.  In all respects the sentencing Judge dealt with the applicant in the most favourable manner reasonably open to him.

[15]     An appeal is not a re-sentencing. However viewed, the 16 month sentence imposed upon the applicant was clearly within the range of his sentencing discretion.

Result

[16]     The appeal is dismissed.

Solicitors

Y R Summers, Levin for Applicant
Crown Law Office, Wellington