R v Dodd
[2013] NZCA 270
•2 July 2013 at 10.30am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA589/2012 [2013] NZCA 270 |
| BETWEEN | THE QUEEN |
| AND | KELLY RICHARD DODD |
| CA590/2012 | |
| AND BETWEEN | THE QUEEN |
| AND | MATTHEW KAWENA SMITH |
| Hearing: | 17 June 2013 |
Court: | Stevens, Courtney and Dobson JJ |
Counsel: | J M Jelas for Appellant |
Judgment: | 2 July 2013 at 10.30am |
JUDGMENT OF THE COURT
AThe Solicitor-General is granted leave to appeal against sentence in each case.
BThe appeals against sentence are allowed and the sentences set out below are imposed.
CIn the case of Kelly Richard Dodd the sentences of five years and four months imprisonment on the three charges of conspiring to supply a precursor substance are quashed and in their place sentences of six years and two months imprisonment are substituted. All other sentences are confirmed including their concurrent effect.
DIn the case of Matthew Kawena Smith the sentence of four years and four months imprisonment on the charge of conspiring to manufacture methamphetamine is quashed and in its place a sentence of five years and two months imprisonment is substituted. All other sentences are confirmed including their concurrent effect.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
The Solicitor-General applies for leave to appeal against the sentences imposed on the respondents in the High Court at Whangarei on 24 August 2012 by Woodhouse J.[1] Both respondents pleaded guilty to numerous charges of serious drug offending involving class A, class B and class C controlled drugs. Mr Kelly Dodd was sentenced to five years, four months imprisonment. Mr Matthew Smith was sentenced to four years, four months imprisonment.
[1]R v Clarke [2012] NZHC 2146.
The appeal is advanced on the basis that the uplifts of 18 months imprisonment imposed on each respondent for additional offending were inadequate and have resulted in end sentences that are manifestly inadequate.
Background
The respondents were apprehended as a result of a police investigation into drug offending by members and associates of the Tribesman motorcycle gang. The intelligence‑gathering phase of the operation took place between April and July 2009. The interception phase ran from 31 July to 27 September 2009. The operation was terminated on 28 October 2009, when both respondents, along with a number of associates, were arrested.
The trial was originally allocated for May 2011, but this was later moved to February 2012. Mr Smith pleaded guilty to some counts towards the end of 2011 and to the remaining counts after the scheduled commencement date of the trial. Mr Dodd pleaded guilty after the scheduled commencement date of the trial.
In summary, Mr Dodd was sentenced for the following offending:
Offence Quantity/value Conspiring to supply precursor substance (ContacNT) (x 3) 33 sets with potential yield of 1.49 – 2.23 kg of methamphetamine Conspiring to supply methamphetamine 14 grams Offering to supply methamphetamine (x 7) 3.75 grams Offering to sell cannabis (x 9) Cannabis to value $1,200.00. Quantities range from one or two tinnies to an ounce for $300 Conspiring to supply cannabis Cannabis to value $4,000 (40 x $100 bags) Cultivating cannabis Estimated yield of 7.4–11.4 kg with value of between $52,200 and $80,420 Money laundering $10,200 laundered
A summary of Mr Smith’s offending is as follows:
Offence Quantity/value Conspiring to manufacture methamphetamine Assembly of equipment and attempts to obtain pseudoephedrine Conspiring to supply precursor substance (ContacNT) (x 2) Potential yield of 540–805 grams Conspiring to supply methamphetamine (x 5) 72 grams Offer to sell cannabis (representative) 1 pound Conspiracy to supply cannabis Cannabis to value $4,000 (40 x $100 bags) Unlawful possession of a pistol – Unlawful possession of explosives (ammunition) –
Sentencing decision
Mr Dodd
Justice Woodhouse determined that the lead offending should be the three counts of conspiracy to supply a precursor substance (ContacNT), the total potential yield of which was 1.49 to 2.23 kg of methamphetamine. A starting point of four and a half years imprisonment was adopted.
The Judge then considered the appropriate uplift for other offending. He held:
[25] There needs to be an uplift for all of the other offending. In relation to that offending I have also placed a reasonable amount of weight on Mr Lawry’s submissions on your behalf as to the general nature and extent of the offending. Mr Lawry submitted that the overall starting point, or the base starting point increased for other offences, should not exceed six years. I agree.
An uplift of three months imprisonment was imposed to reflect the fact that some of the offending was committed while Mr Dodd was still subject to a prior sentence of imprisonment. Justice Woodhouse then allowed a reduction of 15 per cent, or 11 months, to account for Mr Dodd’s guilty pleas. This produced an end sentence on the lead charge of five years, four months imprisonment.
Concurrent sentences of imprisonment were imposed in respect of the other offending as follows:
•Conspiracy to supply methamphetamine – 18 months imprisonment.
•Offering to supply methamphetamine (x 7) – two years imprisonment on each charge.
•Offering to sell cannabis (x 9) – six months imprisonment on each charge.
•Conspiring to supply cannabis – two years imprisonment.
•Cultivating cannabis – three years imprisonment.
•Money laundering – two years imprisonment.
Mr Smith
In relation to Mr Smith, Woodhouse J considered the lead offence as the conspiracy to manufacture methamphetamine. He determined that this offending fell within band 2 of the guidelines outlined in R v Fatu.[2] A starting point of three and a half years imprisonment was adopted.
[2]R v Fatu [2006] 2 NZLR 72 (CA) at [43].
On the question of an uplift for other offending, the Judge held:
[50] There must be an increase in that sentence to take account of the other offences. In relation to some of them it is in your case appropriate to consider a starting point if some of these other offences were treated as the lead offence:
(a)The starting point for the five offences of conspiring to supply methamphetamine, if treated as a single offence, or a series of offences with uplifts, would be around three years.
(b)The starting point for the conspiracy to supply precursor substances would be at least three years imprisonment. It is less than the other precursor conspiracies because the conspiracies you were involved in did not get beyond the theoretical plan.
[51] The Crown submits that the sentence for the totality of the offending, before considering personal factors, should be eight to nine years imprisonment. Mr Bailey challenges this on the basis that it appears that the Crown has simply added together the suggested starting points of each of the main sets of offences. There is some substance in Mr Bailey’s submission, particularly when regard is had to the totality principle. However, the gravity with the different sets of offences does warrant a substantially greater increase than I have dealt with generally in cases of most other offenders. The sentence is increased to five years, subject to deductions for personal factors.
Justice Woodhouse then allowed a discount of 14 per cent, or eight months, for Mr Smith’s guilty pleas. This left an overall sentence on the lead charge of four years, four months imprisonment.
The Judge imposed the following concurrent sentences of imprisonment in relation to the other offending:
•Conspiring to supply precursor substance (x 2) – three years imprisonment on each charge.
•Conspiring to supply methamphetamine (x 5) – 18 months imprisonment on each charge.
•Offer to sell cannabis (representative) – one years imprisonment.
•Conspiracy to supply cannabis – two years imprisonment.
•Unlawful possession of a pistol – one years imprisonment.
•Unlawful possession of explosives (ammunition) – one years imprisonment.
Submissions
Appellant’s submissions
The Solicitor-General does not take issue with the starting points adopted for the respondents’ lead offences or with the increases and credits given for personal aggravating and mitigating factors. The appeal is limited to the correctness of the uplifts imposed for additional offending.
Ms Jelas for the appellant submits that the 18 month uplifts imposed on both respondents fail adequately to reflect the true criminality of the additional offending and the total criminality and culpability of each respondent. This has resulted in sentences that are manifestly inadequate. As the methodology applied in assessing the appropriate uplift is different in each case, we deal with the separate submissions for the two respondents.
(a) Mr Dodd
With respect to Mr Dodd’s role, Ms Jelas submits that he was a “principal player” in the commercial distribution of methamphetamine, ContacNT, and cannabis, and was also involved in the cultivation of cannabis. He acted as a “drug broker”, identifying a supplier and arranging on sale to the buyer in a context in which one of the other central players, Mr Clarke, was in prison and could only contact Mr Dodd using a contraband mobile telephone.
First, Ms Jelas submits that the Judge failed to determine the notional starting points for any of the additional offending. She submits that if that exercise had been carried out, particularly for the additional methamphetamine offences, it would have better informed the question of the appropriate uplift.
In terms of such notional starting points, Ms Jelas submits the charges of offering to supply 3.75 grams of methamphetamine would warrant a starting point in the range of three years imprisonment.[3] The offence of conspiracy to supply methamphetamine concerned the potential supply of 14 grams of methamphetamine. Applying Fatu, this would attract a starting point between three and nine years. Ms Jelas submits that after a discount to reflect the fact that the offence is one of conspiring, the appropriate starting point would be approximately two and half years.
[3]Citing Higgins v R [2010] NZCA 365 where a starting point of two years, nine months imprisonment for 3.4 grams of methamphetamine was held to be unexceptional.
Second, Ms Jelas submits that given that Mr Dodd’s methamphetamine offending occurred over two distinct periods, it was open to Woodhouse J to consider imposing a cumulative sentence. If such a sentence had been considered, it would have reinforced the need for a substantial uplift.
Finally, Ms Jelas refers to the aggravating features of Mr Dodd’s offending. There were three such features as follows:
31.1The multidimensional nature of the offending reflects Mr Dodd’s deep involvement in the organised illicit drug trade. The ContacNT and cannabis cultivation charges inherently facilitate Mr Dodd’s other offending of supply of both methamphetamine and cannabis. Those charges are also indicative of a future intent to offend. The high quantity of drugs reflects a high degree of organisation and commerciality. The summary of facts also illustrates Mr Dodd’s huge network of drug associates and the time he spent drug offending. The extent and circumstances of his offending also reflects his entrenchment in the illicit drug trade.
31.2The period of the offending. Mr Dodd’s offending covers three discrete periods being mid-December 2008 to mid-January 2009, 11 March 2009 and 5 August to 28 October 2009. The ongoing nature of his offending illustrates that the offending was not isolated but rather increasing in its seriousness. It is readily accepted that Mr Dodd could only be sentenced on the offending convicted of. However, it would be unrealistic for the Court to consider Mr Dodd ceased all ties with his drug associates during the intervening periods. The discrete offending periods provided the Judge with the opportunity to consider imposing cumulative sentences. Consideration of cumulative sentences would have highlighted this aggravating feature.
31.3The offending was part of organised criminal activities within the Tribesman motorcycle gang. Mr Dodd acknowledges he was a Tribesman gang member along with many of his co-accused including his brother. While it is accepted that gang membership alone doesn’t warrant greater deterrence, offending resulting from gang organised crime does increase the seriousness of the criminality involved.
(b) Mr Smith
In Mr Smith’s case, the Judge did identify the notional starting points for the more serious additional offending.[4] Ms Jelas accepts that the starting points adopted by the Judge were within the general range available. However, she submits that the 18 month uplift did not reflect the totality of the additional offences or the offending as a whole: there was no proportionality between the notional starting points identified and the 18 month uplift.
[4]At [50]. These are set out at [12] above.
Ms Jelas submits that Woodhouse J did not have reference to four aggravating features of the offending. First, Mr Smith was also a “multidimensional” offender. His role involved sourcing raw materials for the manufacture of methamphetamine as well as conspiring to manufacture and supply methamphetamine. Second, the offending took place in January 2009 and between June – October 2009. This gap in time left it open to the Judge to consider a cumulative sentence, an option which would have reinforced the importance of a substantial uplift for the other offending. Third, although Mr Smith was not a member of the Tribesman gang, he was associated with them. Finally, Ms Jelas submits that the presence of the firearm and ammunition ought to be seen as a serious aggravating feature.
Respondents’ submissions
(a) Mr Dodd
Mr Lawry, for Mr Dodd, submits that it is not correct to refer to Mr Dodd as a “broker”; rather, his role was more as a “go-between”. He contends that the Judge appropriately took all relevant matters into account and that the final sentence was one that was available to him.
Mr Lawry submits that the appellant’s suggestion that Mr Dodd was a principal player in the commercial distribution of methamphetamine, contacNT, and cannabis, and in the cultivation of cannabis, was overstated. While he does not dispute that he was involved in the cultivation of cannabis, his role was not that of the cultivator. The amounts of cannabis he offered to be supplied demonstrate that he was attempting to deal at the lowest level. Furthermore, there is no evidence of his involvement in the distribution of methamphetamine other than the small offers to supply.
As to the suggestion that Mr Dodd continued to offend in-between the identified periods of offending, Mr Lawry submits that the Judge could only sentence Mr Dodd for proved or acknowledged offending. Although Mr Dodd had associates who were clearly involved with drugs, he was not deeply enmeshed in a drug trade underworld. Mr Lawry further submits that although Mr Dodd is an accepted member of the Tribesman gang, he ought not to be sentenced on the basis of the criminality of those persons with whom he was associated.
Overall, Mr Lawry submits that the Judge had a thorough understanding of the case including the background leading up to the trial and the circumstances of all offenders. He correctly identified the lead charges and made the appropriate adjustments to each of the remaining counts. While it is accepted that the Judge could have imposed a greater increase because of other offending, he submits the sentence as it stands is not manifestly inadequate.
(b) Mr Smith
Mr Bailey for Mr Smith submits that this Court ought to focus on whether an end sentence of four years, four months imprisonment is manifestly inadequate for the combined offending. Mr Bailey accepts that the notional starting points identified in respect of Mr Smith’s other offending were within range. But he disputes the appellant’s challenge as to how the Judge translated those starting points into the 18 month uplift. Mr Bailey submits that there is no requirement that a total sentence must in some way reflect the total of the notional starting points. Rather, s 85(4) of the Sentencing Act 2002 requires that each concurrent sentence must accurately convey the seriousness of each charge, and that the lead sentence must reflect the totality of the offending.
Given that the question for this Court is whether the final sentence was manifestly inadequate, Mr Bailey refers to a number of cases with some similarity to Mr Smith’s position.[5]
[5]Martin v R [2012] NZCA 572 (end sentence of four years for “very similar offending”), R v Turner [2009] NZCA 389 (end sentence of four years two months with a two year uplift for other offending), and R v Mosley [2008] NZCA 510 (uplift of 18 months for drug offending and firearms offences).
Mr Bailey also invites us, in the course of making an assessment of the overall criminality of Mr Smith’s offending, to reassess some of the discounts allowed, for example, for rehabilitation and the allowance for the early guilty pleas.
Discussion
The totality principle is “the established judicial approach to sentencing for multiple offences”.[6] This Court has previously emphasised that the principle must be applied flexibly. In R v Williams Robertson J held: [7]
We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. The issue is what is an appropriate total sentence for the various charges which have been admitted or proved. How that is constructed in the particular circumstances is a matter of individual discretion and assessment. ...
[6]R v Strickland [1989] 3 NZLR 47 (CA) at 50.
[7]R v Williams CA 91/00, 31 May 2000 at [11].
This was again emphasised in R v Barker,[8] where the key principles were stated as:
·With multiple offences the sentence must reflect the totality of the offending.
·In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way.
·The total sentence must represent the overall criminality of the offending and the offender.
[8]R v Barker CA 57/01, 30 July 2001 at [10].
As this Court emphasised in R v Xie,[9] these principles survive the enactment of the Sentencing Act. Sections 84 and 85 of that Act describe when concurrent and cumulative sentences are generally appropriate. But the guidelines do not have the effect of trumping the central principle of sentencing for multiple offending that requires that the total sentence must represent the overall criminality of the offending and the offender.
[9] R v Xie [2007] 2 NZLR 240 (CA) at [18].
Thus, the key issue on this appeal is whether Woodhouse J erred in considering that uplifts of 18 months were sufficient to reflect the totality of each of Mr Dodd and Mr Smith’s offending. We are satisfied that he did. Our reasons in respect of each respondent follow.
Mr Dodd
It is problematic that the Judge did not identify the notional starting points in respect of the additional offending, and in particular the methamphetamine offending. Sound sentencing methodology requires that such starting points are identified. In cases of major drug offending involving many different charges this step will generally assist the analysis of the sentencing Judge and facilitate appellate review where necessary in the sentencing process.
We agree with the Solicitor-General’s submissions regarding the appropriate notional starting points for serious methamphetamine offending discussed at [19] above. Mr Lawry did not seriously challenge this assessment on a stand-alone basis.
Such starting points (approximately three years imprisonment on the charge of offering to supply, and two and a half years on the charge of conspiracy to supply) reflected significant criminality. Further, it is not evident that the Judge had specific regard to the aggravating features of Mr Dodd’s offending. We agree that the Judge would have been justified in considering cumulative sentences for the additional offending.
Ms Jelas submitted that the total uplift for all additional offending (other than the lead offences) ought to have been between two and a half to three and a half years imprisonment. Given that this was a Solicitor-General’s appeal, Ms Jelas accepted that if this Court were minded to allow the appeal an uplift of two and a half years only would be sought.
In the end, resolution of the appeal comes down to a totality assessment. In this regard the role of the offender and all applicable aggravating circumstances must be taken into account. We are satisfied that an appropriate uplift for all of the additional offending in the case of Mr Dodd would be two and a half years imprisonment.
The result is that a total sentence of six years and two months imprisonment should be imposed on the three charges of conspiring to supply a precursor substance. This is made up as follows:
•Starting point (not disputed) - Four years six months
•Uplift (as a result of appeal) - Two years six months
•Overall starting point - Seven years imprisonment
•Uplift allowed by Judge for prior offending - Three months
•Total - Seven years three months
•Discount of around 15 per cent for guilty plea - 13 months
•Final sentence – Six years, two months imprisonment
Accordingly in the case of Mr Dodd the sentences of five years and four months imprisonment on the three charges of conspiring to supply a precursor substance are quashed and in their place sentences of six years and two months imprisonment are substituted. All other sentences are confirmed including their concurrent effect.
Mr Smith
In Mr Smith’s case the Judge did identify notional starting points in relation to some of the other offending (set out at [12] above). The Solicitor‑General advanced the appeal on the basis that those starting points (as well as the length of sentences that would have been contemplated for the other offending) were not adequately reflected in the final uplift of 18 months.
The notional starting point for the five offences of conspiring to supply methamphetamine would have been around three years imprisonment. For the conspiracy to supply precursor substances the Judge said that the starting point should be “at least three years imprisonment”. In addition to this offending there is the offering to supply cannabis charge, the conspiracy to supply cannabis and the possession of a pistol and ammunition charges. We agree with the appellant’s submission that the uplift of 18 months was inadequate.
The discrepancy between the notional starting points and the 18 month uplift is surprising. Further, the Judge made no reference to aggravating factors including the multi-dimensional nature of the offending, the involvement in offending involving class A, class B and class C drugs and Mr Smith’s engagement at every level of methamphetamine offending. The period of the offending was significant and, as in the case of Mr Dodd, the offending increased in seriousness and covered extended periods of time. The gap in offending between the January and June–October offences would have enabled the Judge to consider imposition of a cumulative sentence for some of the offending. A further aggravating factor was that although Mr Smith was not a gang member himself he was associated with the Tribesman motorcycle gang, placing the offending as part of organised criminal activities within the gang. Finally there is the presence of the firearm and ammunition. Useable weapons in the context of drug offending is a serious aggravating feature.
As to the extent of the uplift we accept the Solicitor-General’s submission that an uplift of two years and six months imprisonment would be the very least that is appropriate in the circumstances. We therefore consider the total adjusted starting point of six years imprisonment. Viewed on a totality basis that is an appropriate sentence to reflect the overall criminality and involvement by Mr Smith in this significant criminal enterprise.
We have not overlooked the submissions made by Mr Bailey. In particular, we have not approached the totality issue in a “discrete or microscopic” way. Rather, we have stood back and looked at all of the offending and its seriousness in the light of the aggravating factors referred to above. We are satisfied that an end sentence of four years and four months imprisonment was manifestly inadequate.
Mr Bailey also drew attention to the fact that the Judge appeared to have taken into account specific personal factors when determining the overall adjusted starting point. Mr Bailey relied on the wording used by the judge when he said “the sentence is increased to five years, subject to deductions for personal factors”.[10] Mr Bailey argued that this was a reference to attempts made by Mr Smith at rehabilitation while he was in prison on remand.[11]
[10]At [51].
[11]Referring to passages in the pre-sentence report.
The difficulty we have is that such efforts, commendable though they may be, would not normally result in an adjustment in the context of serious drug offending, particularly where the offending involved multiple classes of drugs.[12] The other aspect to this submission is that the Judge himself did not identify the rehabilitation efforts of Mr Smith as being the basis for any deductions. Even if some small adjustment of say three months were allowed we are satisfied that a proper uplift from the three and a half year initial starting point is two years and six months imprisonment.
[12]R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
Finally, despite Mr Bailey’s helpful submissions, we see no reason to make an adjustment to the discretionary decision on the allowance for the guilty pleas.
Accordingly we are satisfied that the appropriate sentence for Mr Smith on the charge of conspiring to manufacture methamphetamine should be five years and two months imprisonment.
This is made up as follows:
•Starting point (not disputed) - Three years six months
•Uplift (as a result of appeal) - Two years six months
•Overall starting point – Six years imprisonment
•Discount of around 14 per cent for guilty pleas – 10 months
•Final sentence – Five years, two months imprisonment
Accordingly in the case of Mr Smith the sentence of four years and four months imprisonment on the charge of conspiring to manufacture methamphetamine is quashed and in its place a sentence of five years and two months imprisonment is substituted. All other sentences are confirmed including their concurrent effect.
Result
We grant leave to the Solicitor-General to appeal against the sentence in each case. The appeals against sentence are allowed and the respondents are sentenced on the basis set out above.
Solicitors:
Crown Law Office, Wellington for Appellant
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