R v Gray

[2008] NZCA 224

IN THE COURT OF APPEAL OF NEW ZEALAND

CA128/08
[2008] NZCA 224

THE QUEEN

v

MARK ANTHONY GRAY

Hearing:24 June 2008

Court:Baragwanath, Rodney Hansen and Harrison JJ

Counsel:R M Mansfield for Appellant

M D Downs and S P Symon for Crown

Judgment:10 July 2008 at 11.30 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]       Mr Mark Gray appeals against a sentence of two years and nine months’ imprisonment imposed following his conviction in the High Court at Auckland on one charge of supplying cannabis. 

High Court

[2]       Mr Gray was one of 10 people who faced trial jointly and separately on a range of drug dealing offences.  He was acquitted on the two principal charges of supplying methamphetamine and conspiring with the others to supply the same drug. 

[3]       The Crown’s case was based on intercepted audio and telephone communications together with one witness who gave evidence of an actual supply of a small quantity of cannabis.  Allan J, who had the benefit of hearing the evidence in a trial of 20 weeks duration, found the relevant facts of Mr Gray’s offending as follows:

[60]     … The Crown case is that you were a regular and consistent dealer in cannabis, purchasing significant quantities and either reselling that for a profit or for the most part, selling smaller quantities to your associates.  You traded from your home.  The Crown has referred to a number of passages in the transcripts of recorded conversations which, it contends, establish that the quantity of cannabis sold by you exceeded two pounds.  As part of the Crown calculations reference is made by you to ‘four and a half’ as the purchase price for one particular sale …  The Crown says this is more likely to be a reference to $4,500 for a pound, but counsel accepts that it could refer also to $450 for an ounce.

[61]     Mr Mansfield submits that for present purposes the Court must adopt the alternative most favourable to the prisoner.  I agree.  To do otherwise would be to engage in impermissible speculation.

[62]     The Crown relies also on your debt collecting activities.  Specific reference is made by the Crown to your having at one stage, $20,000 in outstanding debts and to evidence of actual collections of some $6,600 …  In your favour I infer that some at least of the debt collecting must have related to [legitimate trading], but I am satisfied that at least a significant portion of the debt collecting related to your cannabis business, because that is precisely what it was.  The regularity of your references throughout the transcript to having made supplies to a range of people, provide justification for the Crown submission that you were engaged in a consistent drug dealing exercise.

[4]       Allan J recorded that Mr Ron Mansfield, Mr Gray’s counsel, accepted the Crown’s submission that the offending fell within the category of small scale commercial dealing with a starting point within the range of two to four years’ imprisonment: R v Terewi [1999] 3 NZLR 62 (CA). The Judge adopted a starting point of three years imprisonment. He was unable to identify any relevant mitigating factors. He did, however, allow a deduction of three months to recognise the significant infringement on Mr Gray’s liberty caused by a curfew and other stringent conditions of a grant of bail during the period between December 2004 when he was arrested and 25 September 2007 when he was sentenced.

Appeal

[5]       Mr Mansfield submits that the sentence of two years and nine months’ imprisonment was excessive.  He acknowledges that the offending falls within the generic category of small scale commercial dealing identified in Terewi which normally attracts a starting point of between two and four years’ imprisonment.  However, Mr Mansfield draws a distinction between the offences of supply and cultivation of cannabis; Terewi was in the latter category.  He submits that it is a well settled sentencing principle that the offences of cultivating or manufacturing drugs are treated more seriously than supplying because the former types of crime increase a drug’s availability. 

[6]       Thus, Mr Mansfield says, a discrete sentencing range for supplying cannabis of one to three years should be recognised in substitution for the comparable range of two to four years applying to cultivation.  He submits that a two year starting point is appropriate for Mr Gray.  A further deduction of six to nine months imprisonment should be allowed, he says, for the inhibiting effects of bail both before and during trial.  He submits that the final sentence should have been in the range of six to 18 months. 

[7]       We shall address each of Mr Mansfield’s principal submissions in the same order.  First, differently constituted divisional Courts of this Court have discussed the appropriate starting points for cultivation and supply of cannabis where the scale of offending is otherwise comparable.  Dicta from some might suggest a distinction: see R v Watson CA36/01 24 May 2001 at [10]; R v Walker CA356/01 25 July 2002 at [13] and [15].  However, the weight of recent authority is to the contrary: see R v Keefe CA275/02 28 November 2002 at [11]; R v Leighs CA360/02 15 September 2003 at [11]; R v McLaine CA355/00 30 November 2000 at [12].  In R v Taui CA494/05 14 June 2006 a Permanent Court noted with apparent approval that Keefe and Leighs confirmed that the Terewi categories applied to all cannabis dealing offending: at [6].

[8]       Some support for Mr Mansfield’s argument may be drawn from the tariff decision in R v Fatu [2006] 2 NZLR 72 (CA). This Court recognised an ascending scale of culpability from supplier to importer to manufacturer in methamphetamine offending. That is because importers and manufacturers are responsible for bringing the drugs in question into circulation in New Zealand and will usually be more culpable than a dealer in drugs: at [22]. An upward adjustment of 10 – 20 per cent to the sentencing tariffs for supplying methamphetamine was appropriate for importation: at [35] and [36]. A further increase in the latter, also of 10 – 20 per cent, was justifiable for manufacturing on the grounds that it is inherently more dangerous and involves larger set-up costs: at [37] – [45].

[9]       The approach in Fatu does not readily translate to sentencing for cannabis offending.  Methamphetamine is largely homogeneous and the quantities made, imported or traded are a fair reflection of culpability.  In contrast, cannabis varies in form, quality and value; quantity is only one measure of culpability.  The different approaches to sentencing each requires are reflected in the way in which the bands or categories are defined in Fatu and Terewi.  Fatu focuses on and is specific as to the quantities involved.  Terewi avoids rigid classifications; the scale of cultivation is only one of the criteria employed.

[10]     Also, the nature of cannabis growing and distribution is different from methamphetamine.  The offences of cultivation and possession for supply often relate to different stages in the same operation conducted by the same person: see R v Jeffries [1992] 1 NZLR 134 (CA) at 136; and Terewi (Category 2 Schedule) at 71 – 80. The two offences are frequently described as associated or interrelated and this Court has recognised ‘a close analogy’ between growing and dealing for profit: McLaine at [12].

[11]     Moreover, if a comparison is to be drawn with the Fatu approach, the comparable appropriate upward adjustment for supplying cannabis would be with importing (manufacturing is in a special category).  On this basis a 10 – 20 per cent difference in the scale, at the low end of the scale for cannabis dealing, would be minimal.

[12]     The statutory provisions appear decisive against Mr Mansfield’s argument.  The maximum penalties for supplying and cultivating are eight and seven years respectively: ss 6(2)(c) and 9(2) Misuse of Drugs Act 1975. Official records of the Parliamentary Debates, order papers and explanatory notes to the relevant parliamentary bills do not explain the reason but the difference carries a clear legislative presumption that, if anything, supplying is the more serious offence.  We follow the decisions later in time in this Court – Keefe, Leighs, McLaine and Taui – and agree with Allan J that no distinction should be made between selling and cultivating cannabis: at [63] and [64].

[13]     We reject Mr Gray’s first ground of appeal.

[14]     Second, we accept that it is appropriate in certain circumstances for a sentencing Judge to allow a deduction against the starting point for compliance with a restrictive bail regime: R v Cristia [2008] NZCA 19; R v Tamou [2008] NZCA 88 at [18]; R v Nepe [2008] NZCA 98. However, as this Court has cautioned, it is for the sentencing Judge to evaluate all relevant circumstances. The inquiry is into whether the bail conditions themselves are so restrictive as to equate with a remand in custody. If the sentencing Judge concludes that a person’s freedom of movement has been significantly infringed as a result, he or she has a discretion to reduce the starting point. But the discretion is to be exercised with care, and its invocation is not automatic.

[15]     Allan J was in the best position to undertake this evaluation.  His allowance of three months for this factor cannot be challenged.  Mr Gray’s appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington