R v Fonotia
[2007] NZCA 188
•10 May 2007
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA413/06
[2007] NZCA 188THE QUEEN
v
DELIA MARIE FONOTIA
Hearing:5 and 8 March 2007
Court:Chambers, Gendall and Heath JJ
Counsel:J Soondram for Respondent
P K Feltham for Crown
Judgment:10 May 2007 at 3 pm
JUDGMENT OF THE COURT
A The Solicitor-General’s application for leave to appeal is granted.
B The convictions on counts 4 and 5 are quashed on the ground that those counts in the indictment were nullities.
C The appeal is allowed.
D The sentence passed on count 1 (possession of methamphetamine for supply) is quashed.
E In substitution therefor, a sentence of five years’ imprisonment is passed, to be served concurrently with the sentences imposed on count 2 (possession of weapons) and count 3 (possession of a precursor substance), which are unchanged.
REASONS OF THE COURT
(Given by Chambers J)
A Solicitor-General appeal against sentence takes an unexpected turn
[1] Delia Fonotia was a drug dealer. On 9 October 2005, she was arrested at Auckland’s Sky City Casino for possession of a counterfeit banknote. While being processed at the Auckland Central Police Station following her arrest, she was searched. Police found in her handbag almost 40 g of methamphetamine, a large amount of cash, a “tick list”, and other drug paraphernalia.
[2] The police then obtained a search warrant for her car. They found in the boot a loaded shotgun. Ms Fonotia told the police she had the shotgun in the car for protection from drug dealers.
[3] Police then obtained a search warrant for her home. Police found in Ms Fonotia’s bedroom more methamphetamine, pseudoephedrine-based medicines, other drug-related paraphernalia, including digital weighing scales, glass “P” pipes, numerous point bags, and gas burners, and yet another “tick list”. The police also came across a loaded Beretta pistol and a tubular stun gun.
[4] In the kitchen police found a black aerosol can labelled “Blizzard Spray”. This is commonly known as “mace” and is a restricted weapon under the Arms Act 1983. Ms Fonotia did not hold a current firearms licence and had no lawful authority to be in possession of any firearm, ammunition, or restricted weapon.
[5] The police charged Ms Fonotia with an array of offences. She applied for bail, which was granted.
[6] On 27 April 2006, Ms Fonotia, while on bail, was apprehended by police and searched pursuant to the Misuse of Drugs Act 1975. Police found in her handbag 2 g of methamphetamine, cannabis, $27,000 cash, and drugs paraphernalia. Police then executed a search at her home. More drugs were found. Additional charges were laid with respect to this offending.
[7] Apparently negotiations then took place between a lawyer in the Auckland Crown Solicitor’s office and Mr Comesky, Ms Fonotia’s lawyer. Those negotiations resulted in an amended indictment of five counts, to all of which Ms Fonotia pleaded guilty on 22 August 2006. We shall return to the details of the amended indictment shortly.
[8] Ms Fonotia came up for sentence on 17 October last year. Andrews J sentenced Ms Fonotia to a total sentence of four and a half years’ imprisonment. She made no order fixing a minimum period of imprisonment.
[9] The Solicitor-General now seeks leave to appeal on the basis that the sentence was “manifestly inadequate and wrong in principle”. Ms Feltham, for the Solicitor-General, submitted the sentence should be increased to six years and three months’ imprisonment.
[10] In the course of hearing the Solicitor-General’s appeal, the bench raised an issue as to whether two of the counts disclosed offences known to law. We required further submissions to be filed on that topic.
Issues on the appeal
[11] As it turns out, the first issue on this appeal is whether counts 4 and 5 of the indictment were nullities in that they alleged offences not known to the law. For reasons we shall give, we conclude they were.
[12] That leads on to the second issue. What can or should this court do about that?
[13] The third issue is what should happen to the sentence for the rest of the offending.
[14] We shall deal with the issues in turn.
Were counts 4 and 5 nullities?
[15] Counts 4 and 5 of the amended indictment read as follows:
4.THE said Crown Solicitor further charges that DELIA MARIE FONOTIA between 1 January 2005 and 9 October 2005, at Auckland, sold a controlled drug to a person or persons unknown.
5.THE said Crown Solicitor further charges that DELIA MARIE FONOTIA between 16 December 2005 and 27 April 2006, at Auckland, sold a controlled drug to a person or persons unknown.
[16] The side note on the amended indictment (which is not part of the indictment) made reference to s 6(1)(c) of the Misuse of Drugs Act. We set out not only that paragraph but all of s 6(1) because of its importance to the discussion which follows:
Except as provided in section 8, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall –
(a)import into or export from New Zealand any controlled drug, other than a controlled drug specified or described in Part 6 of Schedule 3; or
(b)produce or manufacture any controlled drug; or
(c)supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug;
(d)supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or
(e)sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or
(f)have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e).
[17] Section 6(2) reads:
Every person who contravenes subsection (1) of this section commits an offence against this Act and is liable on conviction on indictment to –
(a)Imprisonment for life where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b)Imprisonment for a term not exceeding 14 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c)Imprisonment for a term not exceeding 8 years in any other case.
[18] The Crown’s predicament was that it could not apparently prove the kind of drugs Ms Fonotia had been supplying. That is reflected in the agreed statement of facts. Paragraph 16 of the agreed statement set out the facts said to be relevant to counts 4 and 5. These facts do not go further than a concession that Ms Fonotia had been “dealing in controlled drugs”.
[19] It is common ground that the case was presented to Andrews J on the basis that the maximum penalty in respect of counts 4 and 5 was eight years’ imprisonment, the maximum penalty prescribed by s 6(2)(c).
[20] The problem is there is no offence of “selling a controlled drug”. Rather, there are three offences relating to the supply of controlled drugs:
(a)Section 6(1)(c), prescribing the offence of supplying any class A or class B controlled drug;
(b)Section 6(1)(d), prescribing the offence of supplying any class C controlled drug to a person under 18;
(c)Section 6(1)(e), prescribing the offence of selling any class C controlled drug to a person of or over 18.
[21] Where the Crown alleges a contravention of s 6(1)(c), the Crown must prove that either a class A controlled drug or a class B controlled drug was supplied. Where the Crown relies on a contravention of s 6(1)(d) or (e), it is essential that the Crown prove that it was a class C controlled drug which was supplied or sold (as the case may be). The specified class is an essential ingredient not merely a particular of the charge. Accordingly, the indictment must specify the class of controlled drug alleged to be involved. The position is very similar with the crime of theft, where the value of the things stolen “is an element of the offence being charged”, with the consequence that the indictment must allege the value of the things stolen: see R v Koura [1996] 2 NZLR 9 at 12 (CA).
[22] All of this is very elementary. None of the present panel can ever recall seeing an indictment before which did not specify the drug or drugs supplied. Although we have not seen the original indictment in this case, we have little doubt that it followed conventional practice and alleged the supply of a controlled drug of a particular class. Then, in the course of discussions leading to the amended indictment, a deal was struck whereby the Crown would simply allege supply of “a controlled drug”, both parties believing eight years’ imprisonment would be the maximum penalty by virtue of s 6(2)(c). It may well be the Crown believed this course was possible in light of this court’s decision in R v Karpavicius [2001] 3 NZLR 41. (This court’s reasoning was subsequently upheld by the Privy Council: [2004] 1 NZLR 156.)
[23] Unfortunately, the course adopted was not in accordance with law and, if Karpavicius was relied on, the parties misunderstood it. In Karpavicius, the accused faced alternative charges of conspiring with others to import either a class A controlled drug or a class B controlled drug contrary to s 6(1)(a) and (2A) of the Misuse of Drugs Act. It was common ground that the evidence to be led at trial was sufficient to establish that the drug which was the subject of the conspiracy was either a class A controlled drug or a class B controlled drug, but was insufficient to establish which class. The trial judge had directed an acquittal on both counts and had reserved a question of law to the Court of Appeal as to whether in those circumstances the accused could be properly convicted on either count in the indictment. This court allowed the Crown’s appeal, quashed the acquittals, and directed a new trial. It held that the Crown was in a position to prove that the accused had conspired to commit an offence against subs (1), namely the offence of importing into New Zealand a controlled drug: see s 6(1)(a). Since the Crown was unlikely to be able to prove that the drug involved was a class A controlled drug or a class B controlled drug, the penalty would be restricted to the residual category in subs (2A)(c), namely a term of imprisonment not exceeding seven years.
[24] The reasoning in Karpavicius applies to importing and exporting cases (s 6(1)(a) and (2)) and producing and manufacturing cases (s 6(1)(b) and (2)). That is because the relevant provision in subs (1) does not specify a particular class of controlled drug. The reasoning is not available, however, with respect to supply or possession for supply offences – paras (c)-(f). Each of those paragraphs specifies the class of drug alleged to be involved. Where the contravention of subs (1) relies on one of those paragraphs, the contravention will not be established unless the Crown can prove beyond reasonable doubt (or the defence admits) that the drug in question was of the particular class.
[25] In Karpavicius, this court indicated that in cases covered by its reasoning, the Crown would have a choice as to the framing of the indictment: at [32]. In cases where the Crown accepted it had no hope of establishing beyond reasonable doubt what kind of controlled drug had been imported, exported, produced, or manufactured, the indictment should direct attention to s 6(1)(a) or (b) (as appropriate) and to s 6(2)(c) (or, in conspiracy cases, to subs (2A)(c)). In cases where the Crown considered it might be able to establish that the drug involved was within class A or class B, then the appropriate course was alternative counts, which would refer to s 6(1)(a) or (b) (as appropriate) and to s 6(2)(a) or, in the alternative, s 6(2)(b) or, in the alternative, s 6(2)(c). (For conspiracy charges, the references would be to the equivalent paragraphs in s 6(2A).) But these possibilities are not available in supply cases.
[26] It follows that counts 4 and 5 were nullities, in the sense that they did not disclose a criminal offence. There is no offence of “selling a controlled drug”. The only offences known to our law are selling class A controlled drugs or class B controlled drugs or class C controlled drugs, where the class of drug is an essential element of the crime.
What can or should this court do about the fact that counts 4 and 5 were nullities?
[27] There is no doubt that, where the statement and particulars of an offence in an indictment disclose no criminal offence whatever, the indictment is a nullity and any conviction under that indictment cannot stand: R v Ayres [1984] AC 447 at 460-461 (HL).
[28] The difficulty we face is that Ms Fonotia has not appealed her conviction on those counts. This is, after all, a Solicitor-General appeal against sentence.
[29] On an appeal against sentence, our express powers are set forth in s 385(3) of the Crimes Act 1961. Under that subsection, if we think a different sentence should have been passed, we can quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as we think ought to have been passed. It is obvious that subsection does not expressly confer a power to quash a conviction. But we must have inherent power to quash convictions which are nullities: see R v Newland [1988] QB 402 at 408 (CA), R v Nakhla (No 2) [1974] 1 NZLR 453 (CA), and R v Smith [2003] 3 NZLR 617 at [28]-[39]. We obviously cannot sanction a sentence based in part on presumed (but in truth non-existent) offending. In order to determine the appropriate sentence for the admitted actual offending, we must remove from the equation the “offending” covered by counts 4 and 5. The convictions on those counts must be quashed so that we can then determine whether the sentence was appropriate.
[30] Another course would be to adjourn this appeal in order to give time to Ms Fonotia to appeal (out of time) against her convictions on counts 4 and 5. That appeal could then be heard at the same time as this adjourned Solicitor-General appeal. Obviously Ms Fonotia’s appeal would have to be allowed; the Solicitor‑General’s appeal would then proceed on the basis of the remaining offending under counts 1-3.
[31] We see no reason why that course should have to be taken. We are satisfied we have inherent power to achieve that same result under the present appeal. It is, after all, a fundamental proposition that an accused should not suffer a penalty in respect of a non-existent crime.
[32] We add, by way of completeness, that Ms Fonotia’s guilty pleas present no problem. It is well established that a plea of guilty will not prevent the overturning of a conviction if, “on the admitted facts, the accused could not in law have been convicted of the offence charged”: R v Le Page [2005] 2 NZLR 845 at [18]. See too R v Dar [2007] NZCA 140 at [22].
[33] For these reasons, we quash the convictions on counts 4 and 5.
What should happen to the sentence for the rest of the offending?
[34] What we are now left with are counts 1-3, which read as follows:
1. THE said Crown Solicitor further charges that DELIA MARIE FONOTIA on or about 9 October 2005, at Auckland, had a class A controlled drug (namely methamphetamine) in her possession for the purpose of supplying it to another person.
2. THE said Crown Solicitor further charges that DELIA MARIE FONOTIA on or about 9 October 2005, at Auckland, was in possession of a firearm (namely a shotgun), a pistol and restricted weapons (namely a stun gun and a can of Blizzard Spray) without some lawful, proper, and sufficient purpose.
3. THE said Crown Solicitor further charges that DELIA MARIE FONOTIA on or about 9 October 2005, at Auckland, had in her possession a precursor substance (namely pseudoephedrine) and material (namely hypophosphorous acid) that were capable of being used for producing methampethamine with the intention that the substance and the material were to be used for producing methamphetamine.
[35] Andrews J sentenced Ms Fonotia to four and half years’ imprisonment on count 1, 18 months’ imprisonment on count 2, and 18 months’ imprisonment on count 3, all sentences being concurrent. She had also sentenced Ms Fonotia to two years’ imprisonment on counts 4 and 5. Those sentences were also concurrent, with the consequence that the total effective sentence was four and a half years’ imprisonment.
[36] When concurrent sentences are imposed, the most serious offence must receive the penalty that is appropriate for the totality of the offending: Sentencing Act 2002, s 85(4)(a). So the four and half years’ imprisonment imposed on count 1 was Andrews J’s assessment of the penalty appropriate for the totality of the offending, which all believed at that time included substantial selling of controlled drugs between 1 January 2005 and 27 April 2006.
[37] In the circumstances of this appeal as it has developed, we see no alternative but to approach this sentencing afresh. Clearly there must be a complete re-evaluation of the sentence given our quashing of the convictions on counts 4 and 5.
[38] Obviously, the most serious offence of the three remaining counts was count 1, the count of possession of methampethamine for the purpose of supply. On 9 October 2005, Ms Fonotia was found in possession of almost 40 g of methamphetamine. This placed the offending in band 2 of R v Fatu [2006] 2 NZLR 72 at [34] (CA). The starting range for that band is three years to nine years’ imprisonment. It is the band appropriate for those “supplying commercial quantities”. That was seen by Andrews J as the appropriate band, and it was a point not in dispute either in the High Court or before us.
[39] We turn now to consider where within that band the starting point relevant to the methamphetamine offending should be fixed. The starting point is, of course, not just based on the quantity. All the admitted facts are relevant in determining the seriousness of the methamphetamine offending. We see as especially significant the fact that, as a consequence of the searches on 9 October, the police discovered digital weighing scales, glass “P” pipes, numerous point bags, and gas burners. The tick lists are also significant. As well, Ms Fonotia had over $16,000 in cash. Taking all these facts into account, we are satisfied Ms Fonotia was a serious commercial dealer, making substantial sums from her dealing. In our view, all those circumstances lead to a “provisional” starting point of five years.
[40] To that, however, must be added appropriate uplifts to reflect the offending disclosed by counts 2 and 3. It is, of course, a seriously aggravating factor that Ms Fonotia was in unlawful possession of no fewer than four different weapons: a loaded shotgun, a loaded Beretta pistol, a tubular stun gun, and the Blizzard Spray. This court in R v Richardson CA450/02 25 March 2003 referred to “loaded firearms” as being “anathema within our community”: at [33]. The court said that every court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of unlawful possession of such firearms because of their potential for danger. In R v Faifua CA287/05 27 March 2006, this court referred to “the presence of a firearm” as “one of the most serious aggravating features that can be found in drug cases”: at [26]. R v Bunning CA378/04 6 April 2005 is another example of a case where possession of a loaded pistol and of a stun gun was seen as a serious aggravating factor in relation to drug offending: at [29].
[41] The maximum penalty which could be imposed on count 2 is four years’ imprisonment or a $5,000 fine or both: Arms Act 1983, s 45(1). The position is complicated in the present case by the fact that the amended indictment contains just one count with respect to Arms Act offending, even though the particulars reveal that four offences had occurred. Andrews J sentenced Ms Fonotia to 18 months’ imprisonment on this count. Given that she applied a 30% discount for mitigating factors, that must indicate that her unstated starting point for this offending was about two years’ imprisonment or a little more. The leading appellate authority under s 45 is R v McDonald CA108/00 10 July 2000. A starting point of two years’ imprisonment would appear to be within the range sanctioned by McDonald, albeit at the lower end. In light of that, we see no cause to interfere with the sentence imposed on count 2. But the question is to what extent there must be uplift to the count 1 sentence. Clearly, totality principles would prevent a full two year uplift. In the overall circumstances, however, we do not consider the uplift could be less than 15 months’ imprisonment to reflect this offending.
[42] Then count 3 must be factored in. Ms Fonotia was ready to manufacture methamphetamine, even if the Crown was not in a position to prove she had already manufactured. Andrews J imposed a sentence of 18 months’ imprisonment on this count. That too was appropriate. Once again, the unstated starting point (before mitigating factors) must have been two years’ imprisonment or a little more. We consider that assumed starting point to be appropriate. Again, for totality reasons, the uplift must be more limited. In our view, one year’s uplift is appropriate to reflect this additional offending.
[43] The starting point for the totality of the offending is, therefore, seven years and three months’ imprisonment.
[44] Andrews J did not consider there were any personal aggravating factors to be taken into account. Ms Feltham, for the Crown, did not contend otherwise. We agree.
[45] The judge identified two mitigating circumstances. The first was Ms Fonotia’s remorse, coupled with some very unusual family circumstances and personal history. The second mitigating factor was the guilty pleas.
[46] Ms Feltham accepted both factors were appropriately taken into account, although she submitted that the allowance for Ms Fonotia’s family circumstances “should have been modest”. The judge herself had referred to the personal circumstances as being “extraordinary”. We find it unnecessary to go into detail on this topic. There is some substance in Ms Feltham’s complaint that the judge placed “too much weight on [Ms Fonotia’s] personal circumstances”. Andrews J was obviously moved by the difficult situation in which Ms Fonotia’s children would be placed as a result of her being imprisoned. Of course, that is a factor, but it must be kept in perspective. On this topic, we can do no better than quote from two earlier judgments of this court. See first R v Howard CA315/99 2 December 1999 at [13]:
Although we are naturally sympathetic towards Miss Kennedy’s argument that the separation of the two young children from their mother, with their father also imprisoned, makes them victims of her offending, and that there is a possibility of longer term psychological disturbance by reason of the separation, as revealed by the literature tendered to the court, we must necessarily bear in mind the need to deter other women in Ms Howard’s position and to remove from their minds any thought that a substantial prison sentence will not be visited upon them because they happen to have young children. Nor would we wish to encourage that thought in the minds of those who might perceive an advantage in the transacting of drug activities through women who might, because of their family circumstances, escape otherwise well merited sentences.
[47] Then, in R v Williams CA23/05 15 March 2005, this court said at [20]:
The very sad consequences to dependent children of the imprisonment of their parents is always deeply troubling to a Court. This case is no exception. To separate a child at 21 months of age from a loving and accomplished parent is an emotional wrench which may affect such a child for a long period of time or even for life. When, to preserve the benefits of kinship, the child is placed with close family whose age and own circumstances carry their own difficulties, the scope for distress and disruption is obviously enlarged. But society cannot overlook serious offending by parents in order to save distress to their children. The principles of denunciation, deterrence and accountability cannot be ignored. This is not to say that mercy may not be prompted by domestic circumstances in certain cases.
[48] Ms Fonotia’s children were, at the time of sentencing, 12 and 11. They were not as young as the children in Howard and Williams. Notwithstanding that, we accept their mother’s imprisonment will cause those children significant distress and disruption. Against that, however, it must be said their previous domestic situation was far from ideal: living in a house with a mother addicted to drugs and gambling and where loaded firearms are present was a most unsatisfactory situation for these young girls.
[49] We consider that six months’ reduction would have been appropriate for Ms Fonotia’s obvious remorse and for the other personal and family circumstances to which Andrews J referred. That brings the sentence back to six years and nine months.
[50] We now finally turn to consider the reduction for the guilty pleas. This court has yet to deliver a guideline judgment on reductions for guilty pleas, although reference has previously been made to the excellent work which has been done on this topic by United Kingdom’s Sentencing Guidelines Council and the New South Wales Court of Appeal in R v Thomson (2000) 49 NSWLR 383: see R v Hannagan CA396/04 18 July 2005 at [25], R v Growden CA67/05 25 October 2005 at [50], and R v Marsters (2005) 22 NZTC 19,649 at [27]. This court has regularly approved discounts of between 10% and 33%. The extent of the discount primarily reflects when the guilty pleas were entered: the earlier the plea is entered, the greater the discount. That accords with the position under the United Kingdom and New South Wales guidelines.
[51] In the present case, the pleas were not entered at the earliest possible time. Against that, however, is the fact that the Crown was prepared to amend its indictment, which may reflect a perceived inability to prove all the counts originally charged. We do not know for sure what the position is in that regard, as we have not seen the original indictment and do not know the circumstances leading to its amendment and the entry of the guilty pleas. In the circumstances, we consider a 25% discount is appropriate in this case. That reflects what the discount would have been under the United Kingdom guidelines. The discount percentage should be applied to the provisional sentence after all aggravating factors and all other mitigating factors have been taken into account: see the United Kingdom Sentencing Guidelines Council’s provisional Revised Guideline on Reduction in Sentence for a Guilty Plea, published on 18 January 2007 at [2.3] and [3.1]. Applying a 25% discount to the provisional sentence of six years and nine months gives 21 months’ discount for the guilty pleas. The resultant sentence is five years’ imprisonment.
[52] That is six months longer than Andrews J fixed. It follows that the Solicitor-General’s appeal must be allowed. We vary only the sentence on count 1, as the sentences imposed on counts 2 and 3 were within permissible range.
[53] The sentence we have imposed is significantly lower than the Crown sought at sentencing and is also lower than the sentence Ms Feltham urged. She had submitted to us that the lowest possible sentence which could be sanctioned (bearing in mind the restraints on a Solicitor-General appeal) was six years and three months’ imprisonment. But Ms Feltham’s submissions were, of course, based on an assumption that counts 4 and 5 were valid counts.
[54] We express no view as to whether it would now be open to the Crown to recharge properly Ms Fonotia with respect to her admitted general drug dealing between 1 January 2005 and 27 April 2006. For the avoidance of doubt, we make clear that the sentence now upheld does not reflect the admitted offending on 27 April 2006 (which did not form part of counts 1-3). Nor does the sentence take into account drug dealing over the extended period, except in so far as inferences can legitimately be drawn from the overall circumstances unearthed on 9 October 2005.
Footnote on forfeiture
[55] At the conclusion of sentencing, Andrews J made an order under the Proceeds of Crime Act 1991 forfeiting the car in which the loaded shotgun was found. There is no appeal against that forfeiture order, and it is unaffected by our decision on counts 4 and 5.
[56] The Crown had also sought forfeiture of the cash found in Ms Fonotia’s possession – approximately $16,000 on 9 October 2005 and a further $27,000 on 27 April 2006. Andrews J adjourned that application for forfeiture, “to be argued as soon as time can be made available”. We do not know what happened to that part of the application for forfeiture. We simply note that, as a result of this decision, there is now no conviction relating to what was found on 27 April 2006.
Solicitors:
Crown Law Office, Wellington
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