R v Byford

[2008] NZCA 215

IN THE COURT OF APPEAL OF NEW ZEALAND

CA319/07
CA323/07
CA425/07
[2008] NZCA 215

THE QUEEN

v

TERRY KAWHIAITI BYFORD
ANGELA JONNA NGATAKI

Hearing:3 July 2008

Court:Ellen France, Gendall and Venning JJ

Counsel:P J Kaye for T K Byford

P S Coles for A J Ngataki
A Markham for Crown

Judgment:8 July 2008 at 2.30 pm 

JUDGMENT OF THE COURT

The appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]       Following a two week trial at Palmerston North Mr Byford and Ms Ngataki were found guilty on one count of possession of the class A drug methamphetamine for supply, five counts of unlawful possession of firearms and one count of unlawful possession of explosives.  The trial Judge, MacKenzie J, sentenced Mr Byford to six years six months’ imprisonment and Ms Ngataki to five years’ imprisonment:  HC PMN CRI 2006-054-000557 29 June 2007. 

[2]       Mr Byford appealed against both conviction and sentence.  Ms Ngataki initially appealed only against sentence.  Subsequently she also sought to appeal against conviction.  At the outset of the hearing both Mr Kaye and Mr Coles confirmed the appellants no longer pursued the appeals against conviction and they are accordingly dismissed.  The appeals were limited to sentence. 

Background

[3]       On 30 January 2006 the appellants drove from Auckland to Palmerston North and checked into a motel.  They took three units for themselves and for their associates.  The police were alerted and watched the units from 11.00 pm.  At about 5.30 am on 31 January Mr Byford and three others left the motel unit in a car.  The police stopped the car.  They found 270 mg of a crystalline substance later confirmed to be methamphetamine and cash of $3,462.  The police then searched the motel units.  Ms Ngataki had been alerted by a text message from Mr Byford and was found leaving with a backpack containing 14.3 grams of methamphetamine.  The backpack also contained a number of ziplock bags, a scanner, a stun gun, a knife, digital scales and $8,000 cash.  In the course of their search of the motel property the police also found a sports bag containing five firearms, three of which were loaded, and further ammunition for the weapons but no further drugs.  However, after the units had been released the motel operators found three one-ounce bags containing a further 82.9 grams of methamphetamine in a bed in the back bedroom of the unit which the appellants had occupied.  The total amount of methamphetamine found was 97 grams with a street value of approximately $97,000.

The sentencing exercise

[4]       The Judge took a start point of seven years for the sentence of Mr Byford as the principal offender and in order to reflect the totality of the offending.  He then reduced that by six months because he treated Mr Byford as a first offender.  He also took account of other personal mitigating factors.  That left the final sentence of six and a half years. 

[5]       The Judge accepted Ms Ngataki may not have known about the three one-ounce bags of methamphetamine in the motel room but found that she was nevertheless actively complicit in the serious offending to a degree which involved significant culpability on her part.  To reflect her lesser role he took a start point of five years’ imprisonment.  The Judge then considered her personal aggravating and mitigating factors.  Although Ms Ngataki was only 24 years old she had a number of previous convictions and particularly convictions in 2005 for the possession of drugs, including methamphetamine.  She was also subject to a sentence of supervision at the time of the offending.  In the circumstances the Judge considered those personal aggravating factors balanced out her personal mitigating factors.  He left the sentence at five years. 

Mr Byford’s appeal

[6]       For Mr Byford, Mr Kaye submitted that the sentence of six years six months was manifestly excessive.  Mr Kaye acknowledged that the offending fell within band 2 in R v Fatu [2006] 2 NZLR 72 (CA) and accepted that the start point of five years could not be criticised. While he agreed that the additional charges relating to the firearms offending were aggravating and justified an uplift Mr Kaye submitted that the increase of two years was, in the circumstances, excessive and a term of one year would have been more appropriate. He referred to the case of R v Creelman HC AK CRI 2005-090-003426 30 March 2007 Venning J where the Judge imposed an uplift of nine months for an additional charge of unlawful possession of a firearm.

[7]       The issue is whether the ultimate end sentence of five years six months was manifestly excessive, not whether the individual components of the sentence, taken separately, might have been approached differently.  In R v Johnstone [2008] NZCA 143 this Court said at [9]:

An appellant is not entitled to corral those parts of the sentencing judge’s reasoning process which find favour and concentrate solely on that part or those parts they find less palatable.

[8]       When the offending is considered overall, the end sentence of six years six months cannot be described as manifestly excessive.  The matter can be tested this way.  The offending falls in the mid range of Fatu.  That would have warranted a start point of six years for the drug offending alone.  Mr Kaye accepts that an uplift of one year for the firearms offending could not be criticised.  The reduction of six months for personal mitigating factors was appropriate given Mr Byford was effectively a first offender. 

Ms Ngataki’s appeal

[9]       Mr Coles submitted the end sentence of five years’ imprisonment for Ms Ngataki was manifestly excessive given her more limited role in the offending.  He first emphasised that none of Ms Ngataki’s personal effects were in the back bedroom where the three one-ounce bags of methamphetamine were found.  But the Judge expressly accepted that submission at sentencing and took it into account. 

[10]     Next Mr Coles submitted that none of her personal items were found in the backpack.  The force of that submission is diminished somewhat by Ms Ngataki’s letter to the police demanding the return of her property found in the backpack. 

[11]     Mr Coles then sought to distance Ms Ngataki from Mr Byford and the offenders at the motel units.  He emphasised the difference between the amounts of methamphetamine found in the unit and the much smaller amount found in the backpack in her possession.  But the person in the best position to assess the extent of her role in the offending was the trial Judge who sat through the two weeks of evidence.  We accept his assessment of her as actively complicit in the serious offending to a degree which involved significant culpability on her part.  While Ms Ngataki may not have known the precise quantities of methamphetamine that Mr Byford had hidden in the bedroom, Ms Ngataki would have known of the scale of the operation that she involved herself in.  The conviction and the Judge’s comments reflect that.

[12]     Mr Coles then suggested that given the different roles of the offenders, the principles discussed in R v Lawson [1982] 2 NZLR 219 (CA) were engaged. There is no basis for that submission. To the extent that Mr Byford’s role was that of the principal offender, and Ms Ngataki had a lesser role, the Judge acknowledged that and reflected it by taking the lower start point of five years’ imprisonment for her as opposed to the seven years for Mr Byford.

[13]     Again the appropriateness of Ms Ngataki’s sentence can be tested in the following way.  On the basis of her possession of the 14.3 grams a start point of four years would be appropriate.  An uplift of a further year for the five additional charges of possession of firearms could not be criticised.  That leads to the same five year start point the Judge adopted.  The fact Ms Ngataki had previous convictions for drug offending and committed this offending whilst subject to a sentence of supervision are personal aggravating factors which would have justified a further uplift.  She may consider herself fortunate that the Judge cancelled out any such uplift by again taking into account personal factors in her favour even though this was a drug dealing offence.

Result

[14]     Neither appellant establishes that the sentences in this case were manifestly excessive.  The appeals are dismissed.

Solicitors:
Crown Law Office, Wellington