R v Bunning

[2005] NZCA 60

IN THE COURT OF APPEAL OF NEW ZEALAND

CA378/04

THE QUEEN

v

SHANNON PETER BUNNING

Hearing:17 February 2005

Court:Chambers, Williams and Salmon JJ

Counsel:K W Burroughs for Appellant

M A Woolford for Crown

Judgment:6 April 2005 at 10 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Williams J)

[1]       On 10 September 2004 the appellant, Mr Bunning, was sentenced on a number of charges.  These were that:

(a)        On 1 March 2003 at Auckland he had the Class B controlled drug, methamphetamine, in his possession for supply, with the further count that on the same day he had a precursor substance, pseudoephedrine, in his possession with the intention that it be used towards manufacture of a controlled drug and a third count of having an offensive weapon, an expandable baton, with him in a public place.

(b)        Together with his partner, Mr Bunning was also charged that on 21 March 2004 at Ngaruawahia, he produced a precursor substance, ephedrine, knowing it would be used in the manufacture of methamphetamine, possession of precursor substances for the same purpose, possession of equipment with intention it be used for that purpose, possession of utensils for smoking methamphetamine and for consuming cannabis, possession of a .40 calibre semi-automatic pistol except for some lawful purpose, plus possession of explosives namely sixteen .40 calibre bullets and possession of a restricted weapon, a stun gun. 

[2]       The sentencing judge, Judge Cooper, divided the offending into three categories: the 2003 drug offending; the 2004 drug offending; and the 2004 Arms Act offending.  Within each category, the sentences imposed were concurrent.  But the total sentence for each category was made cumulative on the other sentences.  The individual sentences of imprisonment imposed were :

2003 drug offending

Possession of methamphetamine for the purpose of supply	Three years
Possession of precursor substance with the intention that it be used towards manufacture of a controlled drug	Three years
Having an offensive weapon in a public place	One year
Total	Three years

PLUS

2004 drug offending

Producing a precursor substance (ephedrine) knowing it would be used in the manufacture of methamphetamine	Three years
Possession of precursor substances for the same purpose	Three years
Possession of equipment with intention that it be used for that purpose	Three years
Possession of utensils for smoking methamphetamine	Convicted and discharged
Possession of utensils for consuming cannabis	Convicted and discharged
Total	Three years

PLUS

Arms Act offending

Possession of semi-automatic pistol except for some lawful purpose	One year
Possession of explosives	One year
Possession of a stun gun	One year
Total	One year

[3]       He appeals to this Court on the basis that the resulting total of seven years imprisonment was manifestly excessive both individually and in totality.

Facts

[4]       For reasons which will appear it is convenient in considering the facts relevant to this appeal to go further back in time than the matters giving rise to the 2003 offending.

[5]       Mr Bunning has a relatively lengthy history of previous offending though his offences committed before 2000 can be disregarded for present purposes.  They all relate to driving matters apart from one charge of possession of cannabis in 1997 on which he was convicted and discharged.

[6]       However, amongst three offences committed on 18 September 2000 was one of burglary for drugs.  On 26 September 2001 he was imprisoned for nine months on that and the other charges and was granted leave to apply for home detention.  He served his sentence by way of home detention from 26 October 2001 – 12 March 2002.

[7]       In November 2002 Mr Bunning was convicted on three counts of possessing utensils, methamphetamine and cannabis and two counts of theft.  He was sentenced to community work.  Not having completed that sentence, on 2 March 2003 – the day after the 2003 offending - the community work sentence was cancelled on review and fines totalling $2,300 substituted.  They remain unpaid.

[8]       Then, on 4 July 2003, he was imprisoned for six months on two charges of unlawful possession of a firearm on 22 February 2003 and for two months on a charge of presenting the firearm that day.  All those terms appear to have been concurrent.  He was again granted leave to apply for home detention.

[9]       For present purposes, however, the relevance of those matters is that Mr Bunning was subject to the community work sentence when he committed the 2003 offences;  and secondly, that he was on bail for the offences committed on 1 March 2003 both when he was sentenced on the firearms offences on 4 July 2003 and when he committed the 2004 offences.

[10]     As far as the 2003 offences were concerned, the facts are that Mr Bunning’s vehicle was stopped by a police car in Auckland as his vehicle’s registration was not operational.  When police officers approached it they noticed an expandable baton between the front seats.  The vehicle was searched under the Crimes Act 1961, s 282B.  A knapsack was located where the appellant had been sitting which contained cannabis, three point bags of pure methamphetamine worth $1700, utensils for smoking the drug, utensils for burglary, a 500 gram tin of red phosphorous - a precursor substance used in the manufacture of methamphetamine - 32 plastic snap lock bags, 304 grams of pseudoephedrine - another precursor - and $4,395.70 in cash.

[11]     The 2004 offences arose out of the execution of a search warrant at the address occupied by Mr Bunning and his partner.  Four glass dishes were located containing a total of 117.9 grams of ephedrine hydrochloride and pseudoephedrine capable of producing between 55–89 grams of methamphetamine which would have been worth $38,500-$62,300.  Other items containing acetone and toluene - precursor substances for manufacturing methamphetamine - and items used in such manufacture were also recovered, as was 213.7 grams of methamphetamine cutting agent, utensils used for smoking methamphetamine and cannabis and empty point bags.  The hot plates on which two of the glass dishes were found and some electronic scales all tested positive for methamphetamine, ephedrine and pseudoephedrine.  Utensils found in the house were those commonly used for smoking cannabis and methamphetamine.

[12]     In the main bedroom a .40 semi-automatic pistol was found loaded and ready to fire with a round in the breech and a spare magazine attached.  Other live rounds of ammunition were found elsewhere in the premises.  A stun gun was found in a parked vehicle.  Mr Bunning told the officers the weapons were for the couple’s protection.

Judgment under appeal

[13]     In addition to the facts outlined, the Judge noted expert evidence on the file relating to the 2003 offending indicating the total of 304 grams of pseudoephedrine found could conservatively have been converted to sufficient methamphetamine to yield $91,200 – $121,600 on the market.  The 2004 offending was committed whilst Mr Bunning was on bail in relation to the earlier charges.  He recorded counsel’s submission that Mr Bunning and his partner were both methamphetamine addicts at the time and accordingly there was no commercial gain for the couple in relation to the methamphetamine offences:  rather, they were simply obtaining and using methamphetamine for their own use.  After reviewing Mr Bunning’s personal circumstances the Judge listed the aggravating features as including that the appellant was on bail at the time of committing the 2003 offences for the earlier offending mentioned, and on bail in relation to the 2003 offences for those committed in 2004.  The value of the methamphetamine in both cases was regarded as an aggravating feature as were possession of the pistol and stun gun.  Mitigating features included the pleas of guilty - relatively early in relation to the 2004 offending but somewhat later for the offences committed the year before - and that, even if the submission that all the methamphetamine was for the couple’s own use was not accepted, their addiction would have reduced the quantity of drug available for commercial dealing.  The Judge held Mr Bunning was towards the top of the lowest category in R v Wallace [1999] 3 NZLR 159, at [32] and there was a need to impose deterrent sentences for firearms offences. He took Mr Bunning’s previous convictions into account although taking the view (at [23]) that “nothing in your previous conviction list approaches the degree of seriousness of the matters now before the court”.

[14]     The Judge then went on to refer to the totality principle holding (ibid) that:

To achieve what I regard as the appropriate total sentence, the individual sentences that I intend to impose are perhaps somewhat less than would be the case if I was dealing with each set of offending in isolation, but I have to, nonetheless, look at the total sentence that I impose.

[15]     The 2003 offending, he held, would have warranted a sentence of four and a half years had it not been for the pleas of guilty, but, “giving you as much credit as I am able for your pleas of guilty” the Judge imposed the sentences earlier mentioned.

[16]     The 2004 drug offending was also said to merit a starting point of four and a half years imprisonment which was reduced by 18 months for the plea.

[17]     Though the Judge did not expressly deal with  the Sentencing Act 2002, ss 83 and 84, he clearly took the view that the two sets of offending, whilst having some similarity, were not a connected series of offences and accordingly warranted cumulative sentences.  The Arms Act offences, of course, bore no similarity to the 2003 offending.

Submissions

[18]     For the appellant, Mr Burroughs was constrained to accept during discussion with the bench that terms of three to three-and-a-half years imprisonment for the 2003 offending would have been within range even though methamphetamine was then still classified in Class B.  But in relation to the 2004 offending, he emphasised that the most serious offence Mr Bunning faced was producing a precursor substance under the Misuse of Drugs Act 1975 s 12A(1)(b) where the maximum sentence is seven years imprisonment and not the offence of manufacturing methamphetamine where the maximum sentence was, by then, life imprisonment.  Seen in that light, he submitted the three year term imposed was manifestly excessive.  He drew attention to R v Murphy HC HAM CR10301924339 9 September 2004 where Ronald Young J set a starting point of two years imprisonment on a charge of producing a precursor substance and reduced that to 18 months for a guilty plea and personal circumstances.

[19]     In relation to the appropriate totality of sentences imposed for combined drug and firearms offences, Mr Burroughs relied on R v Drever (2003) 20 CRNZ 96.  There the appellant was apprehended after firing a gun in a residential street and on searching his home under warrant a well equipped methamphetamine laboratory and chemicals were found together with other paraphernalia.  A sentence of four years imprisonment was imposed on the manufacturing and possession of equipment charges plus a cumulative sentence of 18 months imprisonment on the Arms Act charges.  This Court held the Judge was correct to impose a cumulative term on the Arms Act charges but the overall sentence paid insufficient regard to totality.  The sentences for the drug offences were reduced to three-and-a-half years and those for the firearms charges to nine months.  The two terms of imprisonment were ordered to be served cumulatively.

[20]     Mr Burroughs also submitted that, apart from the Arms Act offences, the two sets of offences faced by the appellant did not warrant cumulative sentences because they were substantially similar and represented continuing offending, relying on R v Tait CA163/04 29 September 2004.  But that case related to two sets of cannabis offending within a two month period whereas this Court substituted four years imprisonment for two cumulative sentences each of two-and-a-half years imprisonment.  There is such a difference in time between the two sets of offences with which Mr Bunning was charged and differences in the actual offending that Tait cannot be regarded as an authority of great assistance in this appeal.

[21]     For the Crown, Mr Woolford stressed Mr Bunning’s criminal history including that both sets of offending were committed whilst the appellant was on bail or subject to an existing sentence.  He accepted that each set of drug offending would, seen in isolation, have justified a finding that it was in the lowest category in Wallace but, once the aggravating features were taken into account, the total offending justified the sentence imposed.  He also made the point that the circumstances of the 2004 drug offending showed that, despite the actual charges faced, Mr Bunnng should be regarded as having been at serious risk of being charged with manufacturing methamphetamine.

Discussion

[22]     A number of the cases cited in argument were of no particular relevance since the offences charged were different from those faced by Mr Bunning but some assistance can be derived from the following :

(a)        R v Fitzpatrick  (CA154/03 29 September 2003) where the appellant appealed a sentence of four years imprisonment following conviction by a jury on a charge of possessing methamphetamine, then still a Class B drug.  The quantity was small.  The defence was he had the drug for personal use.  Though described as stern, the sentence was upheld.

(b)       R v Albert (HC Auckland CRI 2004 004 1493 29 June 2004) where Ms Albert, a drug courier, pleaded guilty to possession of a precursor substance, pseudoephedrine, and possession of a prescription medicine.  Five years and four-and-a-half years starting points were chosen on the pseudoephedrine and prescription medicine counts respectively.  After a “substantial” reduction for personal factors, three years and one month respectively were imposed.

(c)        R v Murphy (supra) where Mr Murphy pleaded guilty to producing a precursor substance, possession of equipment for manufacturing methamphetamine, possession of a pipe and possession of methamphetamine.  Substantial materials and equipment were discovered on execution of a search warrant together with weapons.  The Judge took the view that Mr Murphy was preparing to manufacture methamphetamine.  He had a considerable list of previous convictions.  On the charge of producing a precursor substance, a starting point of two years imprisonment was reduced to 18 months for the guilty plea.

[23]     Though we have also considered this Court’s recent decision in R v Arthur CA283/04 17 March 2005 in its review of sentencing for supply of methamphetamine plus the schedule attached to that judgment, there is no guideline judgment in this Court for the offences Mr Bunning faces.

[24]     In relation to the 2003 offending, Judge Cooper did not expressly refer to a starting point but said that had it not been for the guilty pleas, the appropriate term of imprisonment for that offending would have been four-and-a-half years.   That would appear to have indicated he chose a starting point in the region of three-and-a-half to four years imprisonment and then added the aggravating features to reach his figure.  That would have been consonant with authorities such as Fitzpatrick.  There were, however, significant aggravating features relating to the 2003 offending in Mr Bunning’s case.  They included the circumstances of the offences, his previous history, the fact he was subject to a sentence at the time of commission of the offences, the delay of about a year in entering the pleas, the considerable potential financial yield and the fact the 2003 offending included possession of an offensive weapon.  Seen in that light, the allowance of one-third of the sentence for the mitigating factors must, in the circumstances, be seen as lenient.  However, whether the ultimate sentence for the 2003 offending is considered in the manner Judge Cooper considered it or in the manner just outlined, the sentences actually imposed for that offending, particularly on the two major charges, could not be said to be manifestly excessive.

[25]     As far as the 2004 offending was concerned, the Judge said that the appropriate starting point would have been four-and-a-half years imprisonment taking that view, it would appear, after factoring in the aggravating features.  He then allowed a reduction of 18 months for the guilty pleas.

[26]     Although the implication of methamphetamine manufacture or preparation for it was strong, the major charge Mr Bunning faced was only one of producing a precursor substance.  Given the reclassification of methamphetamine as a Class A drug on 30 May 2003 and the obvious fact that methamphetamine cannot be produced without the earlier production or obtaining of precursor substances, the seven year maximum term could perhaps be seen nowadays as meriting reconsideration.  However, Parliament has not seen fit to increase the maximum and Mr Bunning’s appeal must be determined in that light. 

[27]     Despite those observations, an appropriate starting point, before considering personal factors, would have been at least 3½ years imprisonment and a further 6 to 12 months could easily have been justified because of the aggravating circumstances including the previous history, the further offending while on bail and subject to an existing sentence, the potential yield of the precursor substances and the range of utensils and material found which conveyed a strong implication that manufacture was in contemplation. 

[28]     Then as far as mitigating factors are concerned, reduction of the proposed sentence by one-third for the couple’s addiction and the timing of the pleas should again be regarded as generous.   Therefore, the sentences imposed for the 2004 drug offending must again be regarded as being within range.  And in that regard, the sentence imposed for producing the precursor substance in Murphy must, with respect, be seen as lenient in its choice of starting point.

[29]     Further, in our view the Judge was fully justified in the sentence he imposed on the Arms Act charges.  Possession of a loaded pistol with a round in the breech and additional ammunition, particularly when seen in association with drug offending, possession of a stun gun and the earlier conviction for possession of an offensive weapon, fully warranted the sentence imposed including that the terms be served cumulatively.  Indeed, higher sentences would have been justified but for application of the totality principle.

[30]     Finally, at the end of that process we have stood back and looked – as did the sentencing Judge – at the total sentence of seven years.  We have considered whether it needs further adjustment in order to ensure the total period of imprisonment is not “wholly out of proportion to the gravity of the overall offending” (Sentencing Act 2002 s 85(2)).  Having undertaken that exercise, we are satisfied the total period is not wholly out of proportion and should stand.  Indeed, as indicated, some of the individual sentences could have been higher had they been standing alone.  The conclusion is inescapable that Mr Bunning had learned nothing from his previous offending and the punishments to which it led.

[31]     There was one error in what the Judge did.  When fixing the concurrent sentences, the Judge in most cases gave the penalty appropriate for the totality of that category of offending to each offence within the category.  Under s 85(4) of the Sentencing Act, he should have chosen one offence within each category as “the most serious”.  It should then have received the penalty appropriate for the totality of the offending within that category.  Each of the other offences should then have received the penalty appropriate to it.  Mr Burroughs took no point about this and we take it no further, since there is no practical effect arising from the error but, because of it, it is possible some of “the lesser offences” within each category received too high a sentence.  But for the reasons given we are satisfied that the total penalty for each category and the total penalty for the overall offending were within range.

Result

[32]     In the result, the appeal is dismissed.

Solicitors:
Kerry Burroughs, Hamilton for Appellant
Crown Law Office, Wellington