R v Adrian Gene Smith

[2003] NZCA 108

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 90/03

THE QUEEN

v

ADRIAN GENE SMITH

Hearing:12 June 2003

Coram:Anderson J
Baragwanath J
Doogue J

Appearances:  R Laybourn for Appellant

K Raftery for Crown

Judgment:16 June 2003 

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1]        The appellant was sentenced in the High Court at Hamilton to 2½ years imprisonment after pleading guilty to five charges of supplying the class B drug MDMA (Ecstasy) and one of offering to supply the drug.  He appeals against the sentence imposed by Fisher J.

[2]        Over a period of three weeks in August 2001 the appellant made four sales to an undercover police officer of a total of 90 tablets, for a total price of $5,730.  The appellant admitted having possession of over 200 further tablets of Ecstasy of which he had sold 100, which, assuming similar prices to those paid by the undercover officer, would have yielded a further $6,300. 

[3]        The learned High Court Judge recorded that the maximum sentence for such offending is 14 years imprisonment.  He observed:

[3]…Parliament has imposed this high maximum sentence because of the devastation that drugs can bring to the lives of both the people who take the drugs and those around them.  Because of that, the decisions have repeatedly shown the need to maintain the integrity of a strong deterrent system.  Deterrence requires a consistent pattern of sentencing so that it is well understood by everybody that if they deal in drugs, it is virtually certain that a substantial prison term will result.

…

[5]       Those who deal in drugs under the present circumstances know that they are running the risk of prison; they know that if they get caught they will go to prison; with that knowledge they take the gamble and they cannot be heard to complain if, when they are caught, the inevitable results.  Because of that dominance of deterrence, relatively little weight can be given to personal circumstances.  That is particularly sad in a case like yours where you have made a success of your life and have been brought down by personal drug abuse. 

[4]        The learned Judge adopted a starting point of 3½ years for what he described as low-level commercial dealing in substantial quantities of Ecstasy on a continuing basis, albeit to feed the appellant’s own habit.  He found:

[9]       There are no aggravating features and there are major matters in mitigation.  These include your guilty plea, the fact, which I accept, that despite further requests, you voluntarily stopped supplying long before arrest, that also before arrest you sought medical help and appear to have now conquered your addiction.  You are a first offender of good character, with stable employment and strong support from your parents, family and acquaintances.  So the mitigating features are particularly strong.   But bearing in mind the deterrence pattern I referred to, they do not permit me to arrive at a sentence low enough to make you eligible for home detention.

He concluded:

[10]     In the result, from the three years six months I deduct 12 months for the mitigating features.  You will now be sentenced to imprisonment for two years six months to be served concurrently on all charges.

[5]        Mr Laybourn for the appellant argued that the guilty plea had been entered as soon as practicable and that the fact that the appellant had offered to repay the $5,730 had not been expressly referred to by the Judge.  He submitted that the sentence was inconsistent with others imposed in the High Court and that decisions of this Court relied upon by the sentencing Judge were distinguishable.  He urged upon us that the strong mitigating circumstances relating to the appellant justified a greater discount from that adopted by the Judge.

[6]        In his written submissions Mr Raftery for the Crown submitted that the sentence accorded with settled principle.  We did not find it necessary to call upon him to offer oral argument.

[7]        In R v Wallace [1999] 3 NZLR 159, 172 this Court discussed the principles for sentencing in respect of dealing in class B controlled drugs. At page 172 it stated:

[32]     For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate.  This necessarily must be a broad category to enable sentencers to reflect the many varied circumstances that can arise.

[8]        In the case of the less potent class C drug cannabis, this Court in R v Terewi [1999] 3 NZLR 62, confirmed in R v Andrews [2000] NZLR 205, established a starting point for sentencing for small-scale cultivation of cannabis plants for a commercial purpose of between two and four years unless the sales were infrequent and of very limited extent.

[9]        In R v Bowen CA 171/02, 21 October 2002 the appellant supplied or offered drugs to an undercover constable on six occasions.  The total value of the drugs was $7,540 and included $160 of class A supply.  The appellant, who pleaded guilty, had 23 previous convictions for various offences.  His only drug convictions had been for possession of a pipe and cultivation of cannabis over a decade before, together with a conviction in the Youth Court for possession of cannabis.  He was sentenced to 2½ years imprisonment.  The sentencing Judge had taken a three year starting point and deducted six months for the guilty pleas, leaving an effective sentence of 2½ years imprisonment.  This Court observed:

We see little merit in the appeal.  We agree with counsel for the Crown that the starting point was well within the available range for low level commercial dealing in Class B drugs, even if the fact that in one instance the drug was Class A is disregarded.  There were some six separate incidents of sales to an undercover constable.  The appellant's drug dealing was plainly done for monetary gain, as he admitted.

[10]     The sentence of two and a half years imprisonment made an appropriate allowance for the guilty plea, there being nothing in the appellant's personal circumstances warranting any further reduction.  The sentence cannot be said to be manifestly excessive. 

[10]     The value of the drugs sold in this case was of the order of $12,000 and to that extent the offending is more serious than that in Bowen.  Where Bowen supplied or offered drugs to an undercover officer on six occasions the appellant did so on four.  But in the present case there were in addition the other transactions which the appellant admitted.  It was well open to the sentencing Judge to select a starting point of 3½ years rather than the three in Bowen.

[11]     In R v Terewi it was stated at page 66:

[13]     As with any drug offending for the purpose of profit making, the personal circumstances of the [commercial] offender… are usually not to be given much significance in the sentencing process. The fundamental requirement is that the sentence imposed should act as a deterrent to other persons minded to engage in similar activity.

[12]      We accept that in addition to the prompt guilty plea, which warrants distinct recognition, the further mitigating factors identified by the Judge justify some recognition.  But the learned Judge was right in not regarding the offer of amends as of potential significance; there was no effective room for reduction of the sentence on that score.  It cannot be said that the year’s deduction selected by the sentencing Judge was inadequate, or the final sentence of 2½ years excessive.  Anything less would have infringed the dominant principle that Parliament and this Court have stated repeatedly, that of deterrence.  The consequences for the appellant, caught up in drug dealing through supplies by others, illustrate the need for firmness. 

[13]     The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland