R v Bainbridge

[2003] NZCA 87

IN THE COURT OF APPEAL OF NEW ZEALAND

CA40/03

THE QUEEN

v

GARRIE REGINALD BAINBRIDGE

Hearing:27 May 2003

Coram:Gault P
Fisher J
O'Regan J

Appearances:  M S Gibson for Appellant

J Jelas for Crown

Judgment:4 June 2003 

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]       The appellant pleaded guilty to one charge of conspiring to manufacture a Class B controlled drug, methamphetamine.  He was charged along with 11 others after an electronic surveillance operation between May and July 2001.  While his co-conspirators were sentenced in the Christchurch High Court, the appellant was sentenced in the Auckland High Court at his request.  The sentence was a term of four years imprisonment and he appeals to this Court against that sentence.

[2]       The grounds for appeal are that:

a)The sentence is manifestly excessive;

b)There is a significant disparity of sentences as between co-accused of similar culpability.

[3]       At the time of the sentencing of the appellant, the key player in the conspiracy, Mr Richardson, had already been sentenced in the Christchurch High Court to a term of five years imprisonment.  Mr Richardson pleaded guilty not only to conspiracy to manufacture methamphetamine, but also supply of methamphetamine, supply of the Class B drug Ecstasy, supply of the Class A drug Psilocine, and possession of Psilocine for the purpose of supply.  He also pleaded guilty to possession of a pistol, two charges of burglary and one of receiving stolen property.

[4]       After the appellant had been sentenced, two other co-conspirators, Mr Rock and Mr Love were sentenced in the Christchurch High Court.  Like the appellant, Mr Rock pleaded guilty to conspiracy to manufacture methamphetamine.  In the sentencing notes relating to Mr Rock, the Judge noted the sentences for Mr Richardson and the appellant.  He referred to the varying levels of involvement of the co-conspirators, and noted that the appellant was centrally involved, in that he was in regular contact with Mr Richardson and seemed to have been handling the operation in the Auckland area.  The Crown argued that Mr Rock was at a similar level to the appellant, but the Judge did not accept that argument, finding that Mr Rock was at a lower level.

[5]       The Judge commented on Mr Rock’s positive pre-sentence report and accepted that Mr Rock had tried to reform himself.  He assessed an appropriate starting point, in the light of Mr Rock’s criminality, of two years and nine months imprisonment, and after allowing for his guilty plea, sentenced him to two years imprisonment with leave to apply for home detention.

[6]       Mr Love went to trial and was convicted on the conspiracy charge.  The case presented to the jury was on the basis that Mr Love was the person responsible for the actual manufacture of methamphetamine, using ingredients supplied by co-conspirators.  The Crown submitted that Mr Love was a central figure in the conspiracy, in a position not dissimilar to the appellant or Mr Rock.  But the Judge found that his role was not as significant as that of Mr Rock, and sentenced him to 18 months imprisonment with leave to apply for home detention.

[7]       The sentencing notes for the appellant are brief.  The Judge recorded that he pleaded guilty to the offence.  He then referred to the summary of facts and observed that the operation in which the appellant was involved was substantial and commercially orientated, involving the possibility of a very considerable distribution of methamphetamine.  He referred to the sentence imposed on Richardson, and to the Crown’s contention that the appellant and two others (presumably Rock and Love), were at a level immediately below Richardson.  In fact, it appears that the appellant was at a higher level than both Rock and Love. 

[8]       The Judge then observed that the appellant discussed activities with Richardson and was a source from which ingredients in the manufacture of methamphetamine were obtained.  Counsel for the appellant took issue with this last statement, which he said was contrary to the acceptance by the Judge who sentenced Rock and Love and that there was no evidence that the conspiracy had led to the actual production of methamphetamine.  The statement of facts, on the basis of which the appellant pleaded guilty, said that the appellant was “involved in the sourcing of chemicals and the running of a network of pseudoephedrine ‘shoppers’ for later use in the manufacture and distribution of methamphetamine”.  In our view that statement was a proper foundation for the Judge’s comment.

[9]       The statement of facts indicated an extensive involvement in the conspiracy by the appellant.  In particular, it said:

a)Richardson purchased quantities of methamphetamine from his network of Auckland associates, including the appellant;

b)Richardson conspired with the appellant, Love, Rock and others, to supply methamphetamine once manufactured;

c)The appellant travelled regularly between Auckland and Christchurch using false names and stolen credit cards, and was involved in the sourcing of pseudoephedrine and operating a network of “shoppers”;

d)The appellant regularly gave Richardson instructions on how to carry out the chemical processes, and details of the chemicals required to manufacture methamphetamine;

e)The police recovered from an Auckland hotel where the appellant had been staying a large number of snaplock bags, commonly used for packing methamphetamine for sale;

f)The appellant’s diary contained references to chemicals and amounts required for manufacturing methamphetamine.

[10]     The Judge noted that the appellant had a long list of previous convictions.  These included charges of conspiring to deal with a Class B controlled drug, and conspiring to deal with a Class A controlled drug in 1997.  The Judge recorded that both Crown counsel and counsel for the appellant accepted that the sentence should be in the range of three to four years imprisonment, and sentenced the appellant to four years.  He ruled the sentence would be concurrent on any sentence which the appellant was then serving.

[11]     During the course of the appeal, it became apparent that the ruling that the sentence would be concurrent on other sentences being served by the appellant was particularly significant.   This was because the appellant had been sentenced only a week before to 18 months imprisonment for offending unrelated to the conspiracy charge.  On normal principles, the sentence for the conspiracy charge would therefore have been a cumulative sentence.  This meant that the appellant faced a four year sentence for the totality of his offending, not just the conspiracy charge.  Put another way, it meant the effective term of imprisonment for the conspiracy charge alone was two and a half years imprisonment.  This was not apparent from the case on appeal, or the submissions received from both counsel, and we were not provided with the sentencing notes of the Judge who sentenced the appellant for the earlier offending.  That was an omission on the part of counsel which should not have occurred.

[12]     We turn now to the two grounds of appeal.  We will first deal with the contention that there is too great a disparity between the appellant’s sentence and that of Rock and Love, and too little disparity between the appellant’s sentence and that of Richardson.  Counsel for the appellant said the one year difference between the sentence for the appellant and that for Richardson was insufficient, particularly given the fact that Richardson faced a number of charges other than those related to the conspiracy.  It is now apparent that the four year sentence for the appellant also incorporated the 18 month sentence for a number of other offences, so this argument loses its force.

[13]     The distinction between the sentences imposed on Rock and Love, and the effective sentence imposed on the appellant, is appropriate in our view.  It reflects the fact the appellant had a greater role than both Rock and Love in the conspiracy.  This ground of appeal therefore fails.

[14]     The second ground of appeal was the sentence was manifestly excessive.  In particular, counsel for the appellant argued that the Judge had not made an explicit allowance for the appellant’s guilty plea.  We accept that the Judge did not specifically say that he was making an allowance for a guilty plea.  But an effective sentence of two and a half year imprisonment for the serious charge the appellant faced, based on the facts outlined in the summary of facts and in the light of the appellant’s previous convictions, was at the low end of the range of sentences available to the Judge.  In the absence of a guilty plea a higher sentence would have been inevitable and the sentence imposed was not excessive. 

[15]     The appeal is dismissed.

Solicitors:

Crown Law, Wellington