R v Anderson

[2007] NZCA 146

IN THE COURT OF APPEAL OF NEW ZEALAND

CA425/06
[2007] NZCA 146

THE QUEEN

v

MEGHAN LEIGH ANDERSON

Hearing:16 April 2007

Court:William Young P, Potter and Fogarty JJ

Counsel:M F Laracy and K Laurenson for Crown

M I Sewell for Respondent

Judgment:23 April 2007 at 3 pm

JUDGMENT OF THE COURT

A   The Solicitor-General is granted leave to appeal.

BThe appeal is allowed and the sentence of community service is set aside.

CThe following sentences (to be served concurrently) are substituted:

·      22 months imprisonment on the charges of possession of equipment and possession of a precursor substance.

·      Two months imprisonment on the two charges of possession of pipes.

·      The respondent is convicted and discharged on the charge of possession of cannabis seeds.

DLeave to apply for home detention is granted.

EThe start date of the sentence is deferred for two months.  Bail is granted on the conditions set out in [50]E.

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1]       The Solicitor-General seeks leave to appeal under s 383(2) Crimes Act 1961 against the effective sentence of 150 hours community service and 12 months supervision imposed on the respondent Megan Leigh Anderson in the District Court at Christchurch on 1 November 2006.

[2]       The Solicitor-General submits the sentence is manifestly inadequate and wrong in principle and that a sentence of imprisonment in the vicinity of two years should have been imposed.  The respondent submits that in all the circumstances the sentence imposed was one available to the sentencing Judge.

Charges

[3]       The respondent entered guilty pleas to:

a)          One count of possession of equipment capable of being used to manufacture methamphetamine (s 12A(2)(a) and (3)(b)) Misuse of Drugs Act 1975).  The maximum sentence is five years imprisonment.  The guilty plea was entered two days prior to trial.

b)         One count of possession of a precursor substance capable of being used for producing methamphetamine (s 12A(2)(b) Misuse of Drugs Act 1975).  The maximum sentence is five years imprisonment.  The guilty plea was entered at depositions.

c)          One count of possession of two pipes for smoking methamphetamine (s 13(1)(a) and (3) Misuse of Drugs Act 1975).  The maximum sentence is one year imprisonment or $500 fine, or both.  The guilty plea was entered at the first call after the indictment was filed.

d)         One count of possession of a pipe for smoking cannabis (s 13(1)(a) and (3) Misuse of Drugs Act 1975).  The maximum sentence is one year imprisonment or a $500 fine, or both.  The guilty plea was entered at the first call after the indictment was filed.

e)          One count of possession of cannabis seeds (s 7(1)(a) and (2) Misuse of Drugs Act 1975).  The maximum sentence is three months imprisonment or $500 fine, or both.  The guilty plea was entered two days prior to trial.

Factual background

[4]       On 4 April 2006 the Police executed a search warrant at the respondent’s home at 56 Joy Street, Christchurch.  They found a number of items used in the manufacture of methamphetamine.

[5]       Flasks, beakers and condensers were found in the garage and a container of acetone in the laundry.  In the respondent’s bedroom were found a bag containing 500 pseudoephedrine tablets, hypophosphorous acid and two pipes for smoking methamphetamine.  (The depositions evidence records that 935 tablets containing pseudoephedrine were found in the respondent’s bedroom, whereas the summary of facts refers to 500 pseudoephedrine tablets.  The Crown accepts that the lesser amount should be taken for the purposes of this appeal.) 

[6]       The depositions evidence records that the estimated amount of the drug methamphetamine able to be produced from 935 pills is 14-21 grams.  On the assumption that the pills found in this case contained the same amount of pseudoephedrine, 500 pills would produce 7-11 grams of methamphetamine.  The summary of facts states that the current street value of a single gram of methamphetamine is between $900-1200.  Thus the potential commercial value of the 500 pills, after manufacture to produce the drug methamphetamine ranges between $6,300 and $13,200.

[7]       The summary of facts is silent as to the amount of hypophosphorous acid found but the depositions evidence records that 250 millilitres were located.  The street value of a millilitre of hypophosphorous acid is between $60-100.  Thus the amount found would have a street value of $15,000 to $25,000 if sold by the millilitre. 

[8]       In the lounge was located a pipe used for smoking cannabis and in the kitchen, a container containing 358 cannabis seeds.

[9]       The respondent admitted to the Police that she knew the glassware and substances found were used in manufacturing methamphetamine.  She told Police she was holding the equipment for some associates and that it was going to be exchanged for money owing as a drug debt.  She said she had offered to store the precursor substances for another group of associates and they were to be taken away when a person was found who knew “what to do with the stuff”.  She admitted she used the pipes for smoking methamphetamine and cannabis.

Sentence indication process

[10]     Having entered guilty pleas to possession of a precursor substance, and possession of the pipes for smoking methamphetamine and cannabis, the respondent was to go to trial on the charge of possession of equipment in the Christchurch District Court in the week of 9 October 2006.  (This was to be the second trial before Judge Saunders that week).

[11]     On 10 October 2006 counsel for the defence filed and served on the Crown a memorandum which indicated the respondent would enter a guilty plea to the charge of possession of equipment/materials on the basis that she was not in possession of the items as the manufacturer but had possession with the knowledge and intention they would be used to manufacture by others. 

[12]     The Crown prosecutor who dealt with the prosecution of the respondent, Kerryn Jane Beaton, has sworn an affidavit dated 27 March 2007 in which she says that after receiving the memorandum from defence counsel and during the course of the first jury trial that week (in which she was involved as counsel for the Crown), Judge Saunders indicated he wanted to see counsel in Chambers the following day to discuss how matters were to proceed.  Accordingly, on 11 October 2006 after the jury in the first trial had retired Ms Beaton and Mr Glover for the respondent met with Judge Saunders in his Chambers.  The respondent was not present.

[13]     Ms Beaton says that Judge Saunders indicated to her that if the respondent pleaded guilty on arraignment he did not intend to imprison her.  He proposed to impose a non-custodial sentence.  Ms Beaton says she inquired of the Judge whether he was aware that the respondent had earlier pleaded guilty to possession of a large amount of pseudoephedrine.  The Judge replied that he had not been, but it did not sway him from his view of her culpability. 

[14]     Ms Beaton says the Judge sought from her an acknowledgement that a non-custodial sentence was appropriate.  She says she acknowledged to the Judge that the respondent had no previous convictions and personal circumstances which were relevant, but without further research, she could not accept whether a community based sentence would be appropriate or not.  She therefore sought the opportunity to consider the matter and prepare and file a memorandum from the Crown in the usual form setting out the parameters of the Crown’s participation and endeavouring to give the Judge assistance on appropriate sentencing levels, before a sentence indication was given.

[15]     She says the Judge advised that he did not intend to hold a formal sentence indication hearing the following morning in the presence of the respondent.  He said he was of the firm view that community work was appropriate. 

[16]     On 12 October 2006 the respondent appeared and pleaded guilty to the remaining charge of possession of equipment capable of being used to manufacture methamphetamine.  Subsequently Ms Beaton prepared and filed a sentencing memorandum submitting that imprisonment was the appropriate sentence despite the sentence indication given by the Judge.

[17]     Mr Glover also swore an affidavit dated 4 April 2007.  He questions that Ms Beaton could have assumed the Chambers hearing on 11 October 2006 was to be for any purpose other than to consider his request for a sentencing indication from the Judge.  He generally accepts Ms Beaton’s account of what occurred in the Chambers hearing on 11 October 2006, though he is uncertain whether Ms Beaton indicated that she wished to file a memorandum in the usual form.  He notes that in any event, Ms Beaton had the opportunity to file a sentencing memorandum.  His recollection is that he received a copy on the morning of the sentencing, which took place on 1 November 2006.

Respondent’s situation

[18]     The pre-sentence report notes that the respondent is 34 years of age at the time of sentencing.  She has two sons of 5 and 14 years.  The elder son has complex needs as the result of diabetes and an intellectual disability and Child Youth & Family Services have been involved.  The report writer had been advised by the respondent at interview, that by prior arrangement with the Court a community based sentence was to be imposed in exchange for a guilty plea.  The report notes:

Although Ms Anderson tended to minimise the seriousness of her offending and drug use, she insisted that her commitment to completing a rehabilitative sanction would not diminish once she is sentenced.  Given this assertion and Ms Anderson’s limited criminal history, the Court might be inclined to consider imposing community work and a sentence of supervision with special conditions as recommended.

[19]     The respondent has two driving related previous convictions.  She has $7,826 in outstanding fines and associated costs.

District Court sentence

[20]     In sentencing the respondent on 1 November 2006, Judge Saunders referred to the indication he had given that he was prepared to consider a community based sentence.  He said he agreed that in the general course of events deterrence is an important aspect of sentencing in drug offences and that personal circumstances must count for little when it comes to the need to deter people from this type of activity.  However, in the case of the respondent he was satisfied he could depart from imposition of a full-time custodial sentence.  He said he was satisfied that while the Crown called the respondent’s property a “safe house” she had no intention to actually manufacture methamphetamine at the house.  She was really storing the equipment for others.  He said it was “misguided on your part to have done so”, particularly having regard to the respondent’s family responsibilities and that she is the mother of a young child.

[21]     He considered the way forward would be best served by imposing on the respondent a salutary term of community work coupled with a sentence of supervision which would require her to look at issues surrounding drug abuse and alcohol abuse.

[22]     The Judge imposed in respect of the charges of possession of equipment and a precursor substance, 150 hours community work and on the other charges lesser periods of community work to be served concurrently.  He imposed 12 months supervision adopting as conditions the recommendations in the pre-sentence report.  He said he believed the sentence imposed adequately addressed both the punitive and rehabilitative needs of sentencing in the particular case of the respondent.

Process after sentencing

[23]     The respondent’s sentence of community work has been suspending pending the outcome of this appeal.

[24]     In accordance with the requirement stated in Sipa & Edwards v The Queen [2006] NZSC 52 at [8], the respondent has filed an affidavit sworn on 10 April 2007 stating that she entered her guilty plea to the charge of possession of equipment following a sentencing indication from Judge Saunders. “At this stage” she does not intend to vacate her guilty plea if a sentence other than community work is imposed by this Court, but leaves the question of the ultimate sentence in the hands of this Court.

Sentence indication process : discussion

[25]     In R v Edwards [2006] 3 NZLR 180 this Court allowed appeals by the Solicitor-General against sentences imposed on Mr Edwards and Mr Sipa following a sentencing indication hearing conducted by Judge Saunders. This Court found the sentences imposed in the District Court could not be supported. The first ground for that finding was that the sentencing indication given by the Judge in relation to Mr Edwards did not comply with the District Court Bench Book standards in that the Judge did not have the victim impact statement or pre-sentence/probation reports before him at the time of his sentencing indication and the Crown was not invited to make submissions on the appropriate sentence. At [41] of the judgment in Edwards the standards from the relevant District Court Bench Book relating to sentence indications are set out.

[26]     The sentence indication guidelines include a requirement that any sentence indicated must accord with the principles and aims of the Sentencing Act 2002.  A Judge who considers he or she lacks sufficient information should decline to give a sentencing indication.  Further, consultation with all parties, Police, victims and the defendant is essential.

[27]     In this case the Crown was not given proper opportunity to present a sentencing memorandum to the Judge before he gave his sentencing indication.  There may have been some misunderstanding that led to Ms Beaton not appreciating that the Chambers hearing on 11 October 2006 was to be a sentence indication hearing.  But the outcome was that she was not able at that hearing to assist Judge Saunders by providing submissions on relevant case law and sentencing principles, and ensuring that a complete summary of facts was available if a guilty plea was to be entered following a sentence indication.  Consequently, there was not adequate consultation with all parties and the Judge did not have the information necessary to enable him to assess the proper sentence, as the guidelines require.  Had the proper process been followed the Judge should have been properly informed as to the relevant case law and the principles and aims of the Sentencing Act 2002 which applied in this case. 

[28]     The Judge’s sentencing notes on 1 November 2006 refer to the indication he gave that he was prepared to consider a community based sentence.  While at sentencing he would have had the benefit of the Crown’s sentencing memorandum prepared by Ms Beaton, he did not make any reference to the relevant authorities in his sentencing notes and proceeded to sentence in accordance with the sentencing indication given.  The sentencing notes reflect the perfunctory and flawed nature of the sentencing indication process in this case.

Sentence : discussion

[29]     Three questions arise for determination:

a)          Was the sentence imposed either wrong in principle or manifestly inadequate?

b)         If so, should it be set aside?

c)          If so, what sentence should be substituted?

a)        Was the sentence wrong in principle or manifestly inadequate?

[30]     The Crown submitted that the non-custodial sentence imposed:

a)          Represents an unjustified departure from the principle that material involvement in serious drug offending, especially Class A drugs, will, other than in exceptional circumstances result in a term of imprisonment;

b)         Undermines the consistent message of deterrence which the Court has endeavoured to send to drug offenders.  The sentence is out of line with previous relevant decisions of the Court of Appeal and inconsistent with a compelling body of High Court sentencing decisions.

c)          Creates an unjustified disparity between the respondent and others who have properly received custodial sentences for comparable offending.

[31]     The Crown referred to relevant authorities including R v McLean CA102/05 18 August 2005 as being probably the leading authority on sentencing under s 12A of the Misuse of Drugs Act.  Ms Laracy noted that the facts and personal circumstances of Ms McLean provide a relevant point of comparison with the present case. 

[32]     Ms McLean pleaded guilty to pseudoephedrine “shopping” on 12 occasions.  The tablets acquired from the shopping expeditions would have enabled the production of between 9 and 14 grams of methamphetamine with a retail value between $9,000 and $13,000.  She indicated very late in the piece, that she would plead guilty – a week before trial.  The sentencing Judge noted that guilty pleas entered so late can “merit only limited recognition as a mitigating factor”.  Ms McLean was a 29 year old mother of two children aged 7 and 11 years who lived with her.  She had a difficult upbringing and was a drug user.  She was motivated to address the causes of her offending and had only a few previous convictions of no real relevance.  The Court of Appeal considered the starting point of three and a half years as taken by the sentencing Judge was too high and substituted a starting point of two and a half years with a final sentence of 25 months imprisonment.

[33]     Ms Laracy said that it is difficult to see any factor that might permit the massive discrepancy in outcome between McLean and this case.  If anything, the number of charges and the range and quantity of items found suggest a closer involvement by the respondent than in the case of Ms McLean.  The Crown submitted that nevertheless, the position is comparable, both being knowing participants in action preliminary to commercial scale methamphetamine production given the quantities, costs and potential profits involved.  Their personal circumstances are also similar.

[34]     The Crown referred to R v Rewita CA276/05 23 November 2005 as reinforcing the approach taken in McLean.  In that case the appellant was convicted after trial on one count of possession of equipment capable of being used to manufacture methamphetamine and two counts of possession of precursor substances (pseudoephedrine and toluene).  This Court upheld the trial Judge’s starting and end point of two and a half years imprisonment.  The chemicals and equipment in Rewita were similar to those in McLean and this case – there was sufficient to produce between 8.6 and 12.9 grams of methamphetamine valued at between $6,000 and $13,000.  At the time of sentencing in Rewita, methamphetamine was a Class B drug.

[35]     The Crown submitted that the cases of McLean and Rewita and the High Court decisions referred to in them, demonstrate that sentences of imprisonment are appropriate for those who have precursor substances along with chemicals and equipment for manufacturing methamphetamine, even where the offender had limited involvement and where there are personal circumstances that call for some leniency.

[36]     In relation to the Judge’s observation that the respondent had no intention of manufacturing methamphetamine, Ms Laracy in oral submissions cited R v Joll (2003) 20 CRNZ 144 where this Court held that the passive expression “is to be used” in s 12A(2) indicates that the intention to use the equipment, material or substance in drug related offending, may be either that the accused or someone else be the user.  She submitted on the basis of Joll, that intention being an essential ingredient of the offence, there is no lesser culpability if someone other than the accused is the intended user.

[37]     Counsel said that in the Crown’s search of the numerous High Court sentencing decisions under s 12A the Crown had not found any cases where offending of this kind had received a non-custodial sentence.  She referred to R v Saundercock & Robertson HC WN CRI 2005-085-3489 8 February 2007 where Mallon J, after analysing other decisions, concluded there was a range in sentences for these kind of charges of between 15 months and four years, though a start point of between two and three years was common.

[38]     In R v Puckey HC AK CRI 2004-044-5853 11 July 2006, Ms Puckey pleaded guilty to five charges of possession of equipment, precursor substances, iodine, a pipe and permitting premises to be used.  She was a 19 year old solo mother who had fallen under the influence of a much older man who was said to have been manufacturing methamphetamine at her house (although he was later acquitted of the manufacturing charge).  Asher J took a starting point of two years observing that he did not feel able to accede to the request of her counsel to depart from normal sentencing practices in this area and not sentence her to imprisonment.  Asher J allowed a generous reduction for youth, good character, remorse, co-operation and guilty pleas entered after depositions, to reach an effective sentence of 13 months imprisonment.  The Crown submitted that the mitigating factors in this case are less compelling than those in Puckey.

[39]     In our view, the sentence imposed in the District Court cannot be supported.  The cases cited above, particularly McLean and Rewita, demonstrate that sentences of imprisonment are appropriate for those who have precursor substances along with chemicals and equipment for manufacturing methamphetamine, even where the offender had limited involvement and where there are personal circumstances that call for some leniency.  We do not accept the submission of Ms Sewell for the respondent that this case can be distinguished on the facts from the cases referred to above.  Providing a safe harbour for equipment and substances to be used in the manufacture of methamphetamine assists the commission of that crime, as does the acquisition of precursor substances to be used ultimately in the manufacturing process.

[40]     It is well established that personal factors can be given only limited weight where serious drug offending is concerned.  Sentencing is to aim principally at deterrence.  It was not open to the Judge in reliance on the respondent’s personal circumstances, namely that she was a mother of two sons even allowing for the special needs of the elder son, to impose a non-custodial sentence when the authorities clearly establish the principle that material involvement in serious drug offending will result in a term of imprisonment. 

[41]     The sentence lacked consistency with other relevant decisions of this Court or the High Court.  It was both wrong in principle and manifestly inadequate.

b)        Should the sentence be set aside?

[42]     This Court will be reluctant to substitute custodial sentences for non-custodial sentences on appeal.  Nevertheless in this case where the sentencing indication process did not comply with the District Court Bench Book Standards and the sentence was wrong in principle and manifestly inadequate, it must be set aside.

c)        What sentence should be substituted?

[43]     Upon a successful appeal by the Solicitor-General the sentence is to be adjusted by no more than the minimum necessary to remove the element of manifest inadequacy.

[44]     We have determined that a custodial sentence is required.

[45]     The Crown submitted that the lowest available starting point in this case is two and a half years imprisonment, consistent with McLean, and that mitigating factors could not justify more than a five to six months reduction.  The Crown pointed to the late guilty pleas and also submitted that the pre-sentence report suggests the respondent’s understanding of the seriousness of her offending and her willingness to address her drug use are somewhat equivocal.  However, Ms Laracy said the Crown recognised that the mitigating factors of a near clear record and family circumstances deserve some recognition and that while in the Crown’s submission the appropriate final sentence would be in the vicinity of two years imprisonment, on a Solicitor-General’s appeal a sentence of slightly less than two years would not be inappropriate.

[46]     We consider a starting point of two and a half years consistent with that adopted in McLean, to be appropriate in the circumstances of this offending. A generous allowance for mitigating circumstances of eight months would result in a sentence of 22 months imprisonment which we consider is the minimum sentence necessary to remove the element of manifest inadequacy in the District Court sentence. That sentence will be imposed on the charges of possession of equipment and possession of a precursor substance. There will be concurrent sentences on the other charges as set out in [3].

[47]     Ms Sewell submitted, referring to Saundercock & Robertson and Puckey, that if the Court were to impose a custodial sentence, in the circumstances of this case it was appropriate, that, as in those cases, leave to apply for home detention should be granted.  She also submitted that deferral should be granted given the circumstances of the respondent, particularly as a mother of two children, the elder of whom requires special care.

[48]     Ms Laracy expressed the Crown’s position in relation to leave to apply for home detention as neutral, noting however, that the respondent admitted to using drugs in her own home.  Ms Laracy accepted that if the respondent’s need to make arrangements in respect of her children amounted to exceptional circumstances, then there was no impediment to deferral.

[49]     In all the circumstances we grant leave to the respondent to apply for home detention and defer the start date of the sentence for the maximum period of two months.

[50]     Result

A   The Solicitor-General is granted leave to appeal.

B   The appeal is allowed and the sentence of community service is set aside.

C   The following sentences (to be served concurrently) are substituted:

·  22 months imprisonment on the charges of possession of equipment and possession of a precursor substance.

·  Two months imprisonment on the two charges of possession of pipes.

·  The respondent is convicted and discharged on the charge of possession of cannabis seeds.

D        Leave to apply for home detention is granted.

E         The start date of the sentence is deferred for two months.  Bail is granted pursuant to s 39A of the Bail Act 2000 on the following conditions.  The appellant must:

(a)       Within two weeks of the date of this judgment -

(i)        apply for home detention in accordance with s 33(1) Parole Act 2002; and

(ii)       appear at any hearing by the New Zealand Parole Board of that application; and

(b)        Surrender herself to the prison manager of the prison concerned at the expiry of the period of two months from the date of this judgment or the period ending with the date on which the New Zealand Parole Board determines the application for home detention, whichever is sooner.

Solicitors:
Crown Law Office, Wellington