R v Hughes

[2007] NZCA 73

IN THE COURT OF APPEAL OF NEW ZEALAND

CA444/06

[2007] NZCA 73

THE QUEEN

v

MICHAEL PATRICK HUGHES

Hearing:8 March 2007

Court:Ellen France, John Hansen and Williams JJ

Counsel:C Smith for Appellant

D J Boldt for Crown

Judgment:19 March 2007 at 11 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

REASONS OF THE COURT

(Given by Williams J)

Issue

[1]       On 27 October 2006 the appellant, Mr Hughes, was sentenced by Gendall J to two years six months’ imprisonment following pleading guilty to one count of possessing methamphetamine for supply.  The plea was entered in the District Court, it declined jurisdiction and remanded him for sentence in the High Court.

[2]       He appeals to this Court on the ground that the sentence was manifestly excessive.

Facts

[3]       When Police executed a search warrant at the appellant’s premises on 11 August 2006, he endeavoured to secrete a package on his person.  Searched, it was found to contain five bags each containing a “point” of methamphetamine.  He was also in possession of a notebook showing signs of being a “tick list”.  He had $100 in cash.

[4]       An agreed statement of facts was prepared and it was on that basis that Mr Hughes pleaded guilty.  He also told the probation officer he agreed with its contents.  Those documents contained an acknowledgement by the appellant that he “sells each bag for around $80 a bag to a couple of close friends”.   It said he “has been selling for a couple of months” and that “he would sell the methamphetamine whenever he needed money as he is not on the benefit”.

Remarks on sentencing

[5]       Gendall J noted that in the pre-sentence report and in a specially obtained alcohol and drug assessment, the appellant was shown to have been a user of a range of class A and class B drugs over about 20 years with a large number of convictions from 1982 onwards including about 16 convictions for drug-related offending.  They included possession of methamphetamine in 2001, 2002 and 2004.  The appellant had been sentenced to a number of terms of imprisonment, the longest of which was one year four months in 2003.  The criminal history and the previous drug offending were aggravating features.  The Judge treated the guilty plea as a mitigating feature.

[6]       The Judge held the appellant fell into the low level category defined in R v Fatu [2006] 2 NZLR 72 at [34] (CA) and, from the indicated range of two to four years’ imprisonment, chose three years after referring to a number of sentencing decisions. He reduced the starting point by one-third for the guilty plea but increased it by six months’ imprisonment for the aggravating features to reach the sentence imposed.

Submissions

[7]       For the appellant, Mr Smith stressed the early plea, lack of aggravating features and the appellant’s long-standing drug addiction and submitted the offending was no more than occasional sales to close friends.  He did, however, acknowledge the appellant telling the probation officer that he procured and sold methamphetamine to those who asked him for it once his benefit was terminated.  Mr Smith suggested that the appellant’s offending fell within the observation in Fatu at [32] that:

In cases involving supply, there is an obvious culpability difference between those who supply for gain and those who give small quantities of drugs to friends for their personal consumption.

[8]       Having been found in possession of a total of .5 of a gram, Mr Smith submitted the appellant’s offending should have been regarded as well towards the lower point of band one in Fatu at [34]. A precedent, he suggested, was to be found in R v Fagan HC BLE CRI2006 006 341 14 September 2006 where the prisoner was sentenced to 12 months’ imprisonment having pleaded guilty to one count of possessing 2.5 grams of methamphetamine for supply.  However, the sentence in that case was concurrent with one for possessing cannabis for sale and affected by rehabilitative factors.

[9]       For the Crown, Mr Boldt stressed the appellant’s lengthy drug and offending history.  He emphasised the scale of the appellant’s drug trading as admitted to the probation officer and suggested Gendall J was fully entitled to regard Mr Hughes as responsible for a small but continuing commercial drug operation.  He drew attention to the decision of this Court in R v Conway CA275/04 23 March 2005 which upheld a sentence of two and a half years’ imprisonment following a plea of guilty on facts somewhat similar to the present on one count of possessing methamphetamine for supply.

[10]     Whilst accepting that the structuring of the sentence might have differed, Mr Boldt submitted the discount allowed for the plea was generous given the inevitability of conviction and the ultimate sentence was well within range.

Discussion and Decision

[11]     We largely agree with the Crown’s submissions.  This was an unremarkable case where the facts are all too prevalent. 

[12]     The appellant was in possession of a modest amount of methamphetamine.  On his own admission he sold small amounts to friends from time to time.  In addition, as he told the probation officer, he obtained and sold methamphetamine to those who asked him for it when short of money.  That was unsurprising given his very lengthy history of drug-taking and his previous conviction history.

[13]     Another Judge may have selected a slightly different starting point and added or subtracted slightly different periods for the aggravating and mitigating features.  But this was not, as in Fatu at [32], a case where the appellant obtained drugs and gave them occasionally to his friends: on his own admission he was obtaining methamphetamine and selling it, even though on a small scale.

[14]     In our view, the starting point, the allowances for aggravating and mitigating features and the final sentence imposed were all well within range.

[15]     The appeal against sentence is accordingly dismissed.

Solicitors:
Craig Smith Law, Wellington for Appellant
Crown Law Office, Wellington