R v Burnside

[2007] NZCA 527

IN THE COURT OF APPEAL OF NEW ZEALAND

CA412/07
[2007] NZCA 527

THE QUEEN

v

DAVID BURNSIDE

Hearing:12 November 2007

Court:Wilson, Chisholm and Potter JJ

Appearances:  M E Goodwin and M M Dixon for Appellant

H D M Lawry for Crown

Judgment:21 November 2007 at 3pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1]       Mr Burnside appeals against a sentence of six years one month imposed in relation to two sets of charges.

[2]       The charges and sentences imposed were:

1.1Importing a Class C controlled drug, pseudoephedrine – five years five months imprisonment.

1.2Possession for supply of a Class A controlled drug, methamphetamine – four years imprisonment.

Those sentences were to be served concurrently.  The appellant entered guilty pleas to both charges on the fourth day of trial.

2.1Possession of methamphetamine – six months imprisonment.

2.2Possession of equipment for manufacturing a Class A drug – eight months imprisonment.

2.3Possession of precursor substance – eight months imprisonment.

2.4Possession of cannabis – one month imprisonment.

Those sentences were to be served concurrently.  The eight month sentence was made cumulative on the sentence of five years five months, resulting in the end sentence of six years one month.  The appellant entered guilty pleas to the second set of charges shortly before depositions.

[3]       The focus of the appeal was the lead sentence of five years five months imposed for importing pseudoephedrine.  No issue was taken with the other sentences imposed, nor with the sentence of eight months for the second set of offending being made cumulative on the sentence for the first set of offending.  It was submitted that the starting point of five years taken for the lead sentence was inconsistent with starting points adopted in other Court of Appeal judgments for sentences for importing pseudoephedrine and lacked parity with the starting point for the sentence imposed on the co-offender Mr Rikitama Wilson.

[4]       The Crown submitted first that the sentence of five years five months imposed on the lead charge was well available to the sentencing Judge particularly as it reflected the significantly aggravating feature of the appellant having been found in possession of 22 grams of methamphetamine shortly after he collected the envelopes containing the imported pseudoephedrine.  Secondly, it submitted that there are no parity concerns: the different sentences imposed on the appellant and the co-offender Mr Wilson reflected their different roles in the importation as assessed by Cooper J.

Background facts

[5]       On 18 March 2005 a customs officer at the International Mail Centre in Auckland intercepted 27 envelopes each marked with a sticker reading “Sample” or “Free sample, directions and price list enclosed”.  The envelopes were date stamped 12 March 2005.  Each envelope also contained an A4 size fact sheet on White Portland Cement headed paper which was wrapped around a snaplock plastic bag containing white powder, contained within a second snaplock plastic bag.  Each bag of powder was found to contain about 100 grams of pseudoephedrine.  The total weight of the powder within the 27 envelopes was 2245 grams. 

[6]       On 23 March 2005 police and customs officers carried out a controlled delivery of one of the envelopes to the designated address.  Immediately after the envelope had been delivered the appellant collected it from the letterbox, got into his car and drove away.  Police followed him, stopped him and searched his car.

[7]       The following items were found:

·     The envelope containing the pseudoephedrine which had been the subject of the controlled delivery.

·     A handwritten list of 19 addresses and names which matched those on the 27 intercepted envelopes.

·     Documentation outlining recent travel to Korea by the appellant (he travelled to Korea in November 2004).

·     Electronic messages between the appellant and the co-offender Ms McCloskey and an unidentified person communicating addresses to which the packages were to be sent.

·     Six snaplock plastic bags containing approximately 22 grams of methamphetamine in a pure form.

·     45 empty snaplock bags.

·     A set of electronic scales.

·     A business card belonging to the co-offender Mr Wilson, on the back of which an email address was recorded in handwriting, being the address used to communicate the addresses for the packages.

[8]       The 2245 grams of pseudoephedrine imported inside the envelopes were assessed to have an estimated yield of methamphetamine of between 104.5 and 157 grams giving a potential street value between $104,000 and $157,000.

[9]       A fingerprint examination of the documents revealed Mr Burnside’s fingerprints on methamphetamine recipes found in the vehicle and on a later search at his address, and also on one of the A4 size White Portland Cement fact sheets found in the inside of one of the envelopes.  A subsequent document examination revealed that several documents with the addressee names and addresses handwritten upon them which had been located in Mr Burnside’s possession, had been written by him and Ms McCloskey.

[10]     Customs records revealed that Mr Wilson had departed New Zealand for Korea on 9 March 2005 and returned on 13 March 2005, the day after the post date on the envelopes intercepted at the International Mail Centre.  Mr Wilson was shown to have been responsible for addressing the 27 intercepted envelopes.  He was also found to have penned some of the names and addresses on the list of addressees found in the possession of Mr Burnside.

[11]     In relation to the second set of charges, Mr Burnside was found asleep in the driver’s seat of a car in Auckland on 16 January 2007.  When police searched the car, having detected a strong smell of cannabis emanating from the vehicle, they found cannabis plant material, a glass pipe, acetone, funnels, a burner, methamphetamine and other chemicals.

Sentencing

[12]     In relation to the importing charge, Cooper J who was the trial Judge, noted the calculation and premeditation involved in the importing venture, the financial motive behind the offending, the volume and value of the pseudoephedrine imported and the potential yield of pure methamphetamine from the pseudoephedrine.

[13]     The Judge referred to the categories identified by Winkelmann J in R v Ho HC AK CRI 2005-092-00567 12 April 2005 at [25] for the importation of Class C drugs.  The instigators and masterminds in the importation enterprise could expect to receive starting points of around six or seven years imprisonment (category 1) while crucial players who are not the instigators, masterminds or prime movers would attract a starting point of between three and five years imprisonment (category 2). 

[14]     The Judge said he inclined to the view that the appellant did not qualify to be treated as a category 1 offender, although he was plainly heavily involved in the importation.  While Mr Burnside could not properly be characterised as a mastermind he was appropriately seen as a category 2 offender, “albeit at the more serious end of that category”.  Cooper J considered a five year starting point was appropriate. 

[15]     He then considered the second charge arising from Mr Burnside having been found in possession of 22 grams of methamphetamine.  He accepted the Crown’s submission that if this charge were considered on its own it would have merited a starting point of between four and five years imprisonment.

[16]     Bearing in mind the need to ensure that the sentence imposed would reflect the overall gravity of the offending, the Judge applied an increase from the five year starting point to take account of the additional offending represented by the possession for supply count, to reach a resultant starting point of six years for the lead charge of importing pseudoephedrine.  He allowed a discount of seven months notwithstanding the lateness of the guilty plea, to reach an effective sentence of five years five months on the importation charge.

[17]     On the charge of possession of equipment in the second set of offending, the Judge took a starting point of twelve months which he reduced by one-third for the early guilty plea to reach an effective sentence of eight months imprisonment.  He imposed that sentence cumulatively to reach the end sentence of six years one month imprisonment.

[18]     The Judge assessed the involvement of Mr Wilson as less extensive than that of Mr Burnside and adopted a starting point of three years for the importing charge.  He allowed a discount of four months for the guilty plea, which in the case of Mr Wilson was entered on the first day of trial, to reach an end sentence of two years eight months imprisonment.

[19]     He separately considered the sentence for Ms McCloskey (which is not at issue on this appeal) and imposed a sentence of two years imprisonment with leave to apply for home detention.

Authorities

[20]     Mr Goodwin for the appellant submitted that in other sentencing judgments in importation cases, particularly in this Court, the quantity of pseudoephedrine and the estimated amount and value of methamphetamine potentially able to be produced from it were much more significant than in this case.  However, he said, there seemed to be little distinction made here, by way of comparison.

[21]     Counsel referred to R v Xie & Ors [2007] 2 NZLR 240 where this Court considered a sentence following guilty pleas to importation charges relating to six shipments of pseudoephedrine based Contac NT capsules illegally imported from China. The overall offending involved more than 400,000 Contac capsules, each 100,000 of which had the potential to be converted into 4.5 kilograms of pure methamphetamine with a potential street value of $4.5m. Therefore the total potential value of the shipments would have been in the vicinity of $18m. On a Crown appeal the “mastermind” in the offending received a sentence of eight years nine months imprisonment. Two other offenders with a lesser involvement received sentences of five and a half years imprisonment. Mr Goodwin submitted that the potential value of the methamphetamine in that case was some 114 times higher than in this case which justified the considerably higher sentences imposed.

[22]     In R v Zhang HC AK CRI 2005-004-8357 15 September 2006, the prisoner pleaded guilty to a single count of importing pseudoephedrine.  Again Contac NT capsules were involved.  The total pseudoephedrine content of the capsules was 1.5 kilograms with a potential yield of between 750 grams and 1.125 kilograms of pure methamphetamine having a potential street value of $750,000 to $1.125m.  In sentencing the Court took into account that the potential yield of methamphetamine was well within the range described in R v Fatu [2006] 2 NZLR 72 (CA) as a very large commercial quantity (band 4). The offender was placed in the second category in R v Ho. 

[23]     A starting point of four years imprisonment was adopted.  Following a discount for the guilty plea the sentence imposed was three years imprisonment with a minimum period of 18 months imprisonment.  Counsel emphasised that again the yield of methamphetamine was considerably higher than in this case. 

[24]     In R v Yu HC AK CRI 2007-004-15768 27 August 2007 there was a guilty plea to a single charge of importing pseudoephedrine.  2.193 kilograms of pseudoephedrine was found concealed in clothing by customs officers at the airport.  This was estimated to produce 442 to 663 grams of methamphetamine with a street value between $265,530 and $663,830.  A starting point of four years six months imprisonment was taken, with a final sentence after a discount for the guilty plea and remorse, of two years nine months imprisonment.

[25]     Mr Goodwin further submitted that the authorities relied on by the Crown also involved importation of much greater quantities of methamphetamine.

[26]     In R v Qiu CA202/06 17 October 2006, customs officers located 4783.9 grams of pseudoephedrine-based medicine (Contac NT) imported from China.  It was estimated that this would yield between 923 and 1385 grams of methamphetamine with a street value between $923,700 and $1,385,500.

[27]     It was agreed that the offender was in category 2 as applied in R v Ho and that his offending was at the higher end of that category.  This Court upheld the starting point of five years imprisonment adopted by the sentencing Judge having regard to the value of the drug involved, its potential for the manufacture of methamphetamine and the serious social and criminal problems that flow from that drug.  The Court allowed a greater discount for the guilty plea and mitigating circumstances than had been applied by the sentencing Judge, to reach a sentence on appeal of three years nine months imprisonment. 

[28]     In R v Wang [2007] NZCA 226 the prisoner was convicted following trial of one count of importing and one count of conspiracy to import pseudoephedrine. There were two importations of 5,000 and 2,000 capsules of Contac NT. The total amount of pseudoephedrine involved was 630 grams with a potential yield of 315 to 472.5 grams of pure methamphetamine having a street value in the vicinity of $315,000 to $472,000.

[29]     Mr Wang was found by the sentencing Judge to be within category 2 in R v Ho.  He adopted a starting point of three years six months imprisonment which took into account the aggravating features of premeditation and repetition.  The Judge allowed a discount of six months for the appellant’s previous good character and relative youth, and imposed a final sentence of three years imprisonment.  This Court upheld both the starting point and the end sentence, finding the starting point adopted consistent with cases such as Zheng and Qiu.

[30]     Mr Goodwin submitted that the starting point for the importation charge in this case should have been between three and a half and four years.  He submitted that, although it was correct to treat the appellant as a category 2 offender, his level of involvement did not justify the five years starting point applied.  Secondly, the quantity of pseudoephedrine and the potential street value of the methamphetamine to be produced was far less than in cases such as Zhang and importantly Xie.

[31]     In adopting a starting point of five years the Judge said he placed the appellant at the “serious end” of the second category identified in R v Ho.  On the evidence, it is clear that Mr Burnside was involved in all aspects of the importation – in compiling the lists of addresses, in the documentation including the preparation on computer of the White Portland Cement fact sheets, in communicating with Ms McCloskey about addresses and in uplifting the envelope from the designated address.  There was also the evidence of his previous visit on at least one occasion to Korea in November 2004.  This was a deliberate and carefully planned importation and the appellant was crucially and intimately involved throughout its process.  We consider the five year starting point, though at the high end, was available to the sentencing Judge notwithstanding the quantities actually imported may have been less than in other cases that have come before the Courts.

[32]     The quantity and quality of the illegal substance involved will usually be a highly relevant factor in sentencing.  But all the relevant circumstances must be considered.  While other importations have been of greater quantities of pseudoephedrine, this importation, if not intercepted, was nevertheless likely to have resulted in a further 104.5 to 157 grams of the highly dangerous drug, methamphetamine, being made and sold in New Zealand.

[33]     However, importantly in this case, the appellant was also convicted of possessing methamphetamine for supply.  Not only was Mr Burnside found in possession of 22 grams of methamphetamine, but recipes for manufacturing methamphetamine were found in his car and at his address, and he was also found with a dealers kit including scales and point bags.

[34]     In terms of R v Fatu, 22 grams falls within band 2 (commercial offending - 5 grams to 250 grams), with a sentencing range of three years to nine years imprisonment before taking into account aggravating and mitigating factors relating to the offender (as distinct from the offending). The Judge considered this charge would have merited a starting point for sentencing, had the charge been considered in its own right, of between four and five years. We agree. And even at the low end of that range, an increase of 12 months on the starting point of five years to reflect this further serious offending was clearly appropriate. Indeed, a greater increase could not have been criticised. We note that in none of the cases referred to above was this seriously aggravating factor present. We consider the resultant adjusted starting point of six years adopted by the sentencing Judge was well within the available range to reflect the overall offending involved in the first set of charges.

Disparity argument

[35]     It was contended for the appellant that the co-offender Mr Wilson had a pivotal role and that the five year starting point for the appellant, compared with the three year starting point applied for Mr Wilson, resulted in an unjustified disparity.  Counsel submitted that while the Judge correctly described Mr Wilson’s role as akin to that of a courier and critical to the importation his role was much more organisational and active than that of a pure courier – he took the envelopes to Korea, liased with Mr Burnside and Ms McCloskey from Korea by email, wrote out the addresses on the envelopes, collected the pseudoephedrine and posted the envelopes containing the pseudoephedrine back to New Zealand.

[36]     The Judge assessed Mr Wilson’s involvement as less extensive than that of Mr Burnside.  He presided over the trial until Mr Burnside, and later in the day Ms McCloskey, entered guilty pleas on the fourth day of trial.  Although the Crown case had not concluded the Judge was in a good position to assess the evidence and determine the respective involvements of Mr Burnside and Mr Wilson.  Possibly Mr Wilson was treated lightly, but we agree with the Crown that there are no parity concerns in this case.

Conclusion

[37]     We have concluded that the starting point of six years adopted by the Judge for the lead offence was well available to him given the aggravating factors, particularly the conviction for possession of methamphetamine (22 grams) for supply.  The discount of seven months from that starting point could be viewed as generous given the very late stage at which the appellant entered the guilty pleas to the importing and possession for supply charges.  The sentence of eight months imposed cumulatively for the second set of charges is not disputed and in our view was appropriate.  The end sentence of six years one month, when considered in relation to the totality of the offending, was within the range available to the sentencing Judge and cannot be described as manifestly excessive.

[38]     The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent