R v Edwards

[2009] NZCA 269

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/2009
[2009] NZCA 269

THE QUEEN

v

RORY ANTON EDWARDS

Hearing:8 June 2009

Court:Arnold, Priestley and Winkelmann JJ

Counsel:D G Slater for Appellant

M D Downs for Crown

Judgment:25 June 2009 at 11.30 am 

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1]       The appellant pleaded guilty to eight charges of offering to supply the class A drug LSD, one charge of supplying LSD, one charge of possession of LSD for the purposes of supply, one charge of producing the class B drug cannabis oil, 14 charges of possession of the class C drug cannabis for supply and six charges of offering cannabis to others.  Panckhurst J sentenced him to a term of imprisonment of three years.  Mr Edwards appeals against his sentence on the grounds that the final sentence imposed is manifestly excessive because:

(a)The Judge failed to give an appropriate discount in light of the early guilty pleas.

(b)The Judge adopted too high a starting point for the totality of the offending. 

Factual background

[2]       During a 22 day period between 8 and 30 November 2008, Mr Edwards committed a total of 31 offences.  All charges against him were brought as a consequence of a police investigation during which warrants were obtained to intercept text message traffic between a number of people, including Mr Edwards.  On 11 December 2008, the investigation in his case was brought to a close and a search warrant executed at his home.  On execution of that warrant, Mr Edwards was found in possession of a small amount of cannabis (1.5 grams), two BZP pills, but no LSD.  When questioned by the police he admitted that he was the person involved in the intercepted text messages, and that he had been dealing in drugs, cannabis and LSD in particular.

[3]       Mr Edwards entered a guilty plea to all charges on what was accepted by the Crown as the earliest possible date, 16 January 2009.  The guilty plea was entered on the basis of the summary of facts and schedules of intercepted text messages attached to the summary.  The summary said nothing about the quantities of drugs involved in the offending other than referring to one text in which Mr Edwards said that he could source 100 LSD tabs at a time.  The sentencing Judge was invited to make a finding as to the level of dealing, and Mr Edwards’ involvement in it, on the basis of the text messages. 

The sentence

[4]       The sentencing Judge dealt with Mr Edwards’ culpability in the following passages:

[12]Mr Slater said on your behalf that you were essentially dealing in cannabis and I have no doubt that that is so.  The number of cannabis charges confirms as much.  As to that you were a tinnie dealer dealing at street level, selling a handful, one or two tinnies at a time, and at the normal street prices.  The word “middleman” has been used, something of a euphemism, as if that made matters better, but it doesn’t to my mind matter an awful lot.  The fact is you were dealing in cannabis.  Whether you did so strictly on your own account or as a middleman doesn’t much matter.  The fact is you ensured that supplies were made to others.

[13]With reference to the LSD, again all the indications are that you were dealing in comparatively small numbers or at least offering to supply small numbers of LSD tabs from time to time.  There is really only one exception to that and it is one of the offering charges where the text messages referred to an ability to secure as many as 100 LSD tabs, although that exchange ends on the note of a discussion about 20 tabs at $40, a total of $800 worth.  I add however, of course, that it is a charge of offering that number of tabs.  Whether it actually eventuated we simply do not know.  Nonetheless it is plain that you dealt in LSD over this period, at least in lesser numbers and that you were prepared, if need be, to secure rather greater numbers and supply those as well.

[14]There has been some suggestion that you were relatively naïve and didn’t realise quite what you were letting yourself in for.  I doubt that.  The indications from the texts themselves and from elsewhere are that you were firmly in the drug scene and you must have known what you were about, and the risks that you were running.

[5]       The Judge then discussed the appropriate sentence.  We set out the passage where he describes the basis for the sentence, because the meaning of this passage has been the subject of argument before us:

[15]Mr Edwards, the view I have formed in light of the submissions I have heard this afternoon is that the appropriate starting-point for your sentence is four years imprisonment.  That I see as the starting-point in relation to the LSD offending.  So far as the cannabis is concerned you are in category 2, as we call it, of the leading case of R v Terewi [1999] 3 NZLR 62. I regard the starting-point for that offending as two to two and a half years imprisonment. You are entitled to a full discount of a third or thereabouts for your prompt pleas of guilty and also for your co-operation in admitting what you were about in your interview.

[16]I accordingly reach the view that in relation to all of the LSD charges the appropriate sentence is one of three years imprisonment and you are sentenced accordingly.  In relation to the cannabis offences, including that relating to the class B cannabis oil, you are sentenced to 18 months imprisonment after allowance is made for the pleas of guilty.  Those terms are to be served concurrently so that your effective sentence is three years imprisonment.

First ground of appeal: The Judge failed to give an appropriate discount in light of the early guilty pleas

[6]       It is argued for Mr Edwards that the Judge adopted a starting point of four years imprisonment.  In the light of his guilty plea, made at the earliest possible opportunity, Mr Edwards should have been entitled to a full 33 per cent discount from that starting point.  By reducing the sentence to three years, the Judge erred in giving Mr Edwards the benefit of a 25 per cent  discount only.

[7]       Counsel for the Crown responds that this ground of appeal is based upon a misinterpretation of the Judge’s sentencing notes, because it is implicit in those that he adopted a higher starting point than four years for the totality of the offending, and then applied the 33 per cent discount to arrive at the final sentence of three years. 

[8]       While we accept that the reasoning in [15] and [16] of the Judge's sentencing notes is not as clear as it might be, there is little doubt that the Judge was attempting to give effect to the totality principle in s 85(4) of the Sentencing Act 2002.  That provides that when a Judge imposes concurrent sentences for two or more offences, the sentence for the most serious offence must be at a level that reflects the totality of the offending.

[9]       The Judge identified the appropriate starting point for the LSD offending as four years imprisonment, and two to two and a half years imprisonment for the cannabis offending.  Since the sentences were to run concurrently, the Judge had to raise the starting point for the LSD offending to take account of the cannabis offending.  An uplift in the order of six months from the LSD starting point of four years was clearly appropriate to reflect that additional offending.  This produces an overall starting point of four and a half years, one third of which is three years.  Accordingly, when the sentence is properly analysed, it is plain that the appellant received the full discount for his early guilty pleas.

[10]     In any case, we consider that irrespective of how the Judge arrived at the final sentence imposed, the sentence was well within the available range of sentences for this type of offending for the following reasons.  As this Court has repeatedly emphasised, what matters is the end sentence, not its precise makeup: see R v Faifua CA287/05 27 March 2006 at [33].

Second ground of appeal: A sentence of less than four years imprisonment should have been imposed

[11]     It was submitted for the appellant as an alternative argument that a starting point of less than four years imprisonment for all of the offending should have been used in the sentencing process.  In support of this argument Mr Slater for Mr Edwards referred to three recent High Court sentences where a starting point less than four years imprisonment was adopted when sentencing for a combination of offending involving class A and class C controlled drugs: R v Proudley HC HAM CRI 2006-039-723 26 July 2007 Rodney Hansen J; R v Wati HC AK CRI 2005-057-000272 5 April 2006 Winkelmann J; or low level class A offending:  R v Hoeta HC AK CRI 2006-057-1237 21 November 2006 Lang J.

[12]     However, we accept the Crown’s submission that in the light of several Court of Appeal decisions referred to below, neither the starting point adopted (whether it be four years or four years, six months) nor the final sentence can be described as manifestly excessive. 

[13]     The decisions cited in R v Stanaway [1997] 3 NZLR 129 indicate that in relation to supply type offending involving small numbers of LSD tabs a starting point of around four years is appropriate. For example, in R v Connolly-Baker CA104/92 8 July 1992, the defendant sold a total of 25 tabs of LSD over two transactions, as well as supplying socially a small amount of cannabis oil.  Whilst observing that the sentence was “at the high end of the range”, the Court of Appeal declined to interfere with the three year, three month term of imprisonment.  There, as here, the defendant had pleaded guilty.  In R v Diack [1991] 1 NZLR 281 (CA), the offences were possession, possession for supply and supply of LSD to members of a motorcycle gang. The supply was low level involving 17, 12 and 17 tabs. A sentence of four years, five months following a guilty plea was upheld.

[14]     Similarly in R v Watson CA36/01 24 May 2001, decided after Stanaway, the Court of Appeal accepted as correct a four year starting point for a single offer to supply 50 tabs of LSD that ultimately resulted in 10 tabs of the drug being sold.

[15]     Mr Edwards’ offending is more serious than that described in Connolly‑Baker or Watson.  The offer of 100 tabs alone supports the conclusion that this was dealing on a more significant scale than in either of those two cases.  Further, Mr Edwards was also guilty of other class C dealing offences, falling within band 2 of R v Terewi [1999] 3 NZLR 62. He committed a total of 31 offences in a 22 day period involving three classes of drug. Dealing in more than one class of controlled drug constitutes a serious aggravating feature. As it was put in R v Barker CA57/01, 30 July 2001:

[17]Offenders who trade in all classes of drugs with the inherent risk in such trading that their customers will graduate from the less harmful to the more injurious drugs cannot expect the sympathy of the Court.

[16]     Whether arrived at by means of the totality principle or because the cannabis offending is an aggravating factor, a higher starting point than four years imprisonment was clearly available to the Judge.  Having considered the Judge’s sentencing notes, we have concluded that the higher starting point of four years, six months was utilised by him, and we consider properly so.  This ground of appeal must also fail.

Result

[17]     Mr Edwards’ appeal is therefore dismissed.

Solicitors:
Crown Law Office, Wellington