R v Mosley

[2008] NZCA 510

IN THE COURT OF APPEAL OF NEW ZEALAND

CA612/2007
[2008] NZCA 510

THE QUEEN

v

CHRISTOPHER JAMES FULLBECK MOSLEY

Hearing:26 November 2008

Court:Robertson, Hugh Williams and Harrison JJ

Counsel:P T R Heaslip for Appellant

S J Mount for Crown

Judgment:28 November 2008 at 2 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Hugh Williams J)

Introduction

[1]       At the conclusion of a jury trial in the Auckland High Court which ran from 12 February 2007‑22 June 2007, the appellant, Mr Mosley, and a number of co-accused were found guilty or, in some cases, pleaded guilty, on a variety of charges under the Misuse of Drugs Act 1975 and the Arms Act 1983.

[2]       More specifically, Mr Mosley was convicted on six counts, including supplying and offering to supply methamphetamine, conspiracy to supply and supplying Ecstasy, unlawful possession of a pistol and carrying a pistol in a public place.

[3]       On 25 September 2007, the trial Judge, Allan J, sentenced the eight persons convicted to a variety of terms of imprisonment.  In Mr Mosley’s case the starting point of nine years imprisonment on the methamphetamine convictions was increased to ten and a half years’ imprisonment for the Ecstasy and firearms matters.

[4]       Mr Mosley appeals to this Court on the ground the sentences imposed were manifestly excessive.

Facts

[5]       The broad factual situation can conveniently be taken from the sentencing Judge’s summary:

[4] The offending was detected in the course of a long police investigation known as Operation Leningrad, conducted in the latter part of 2004.  You were each arrested at the conclusion of that operation on 30 November 2004, or within a short time thereafter.  During the course of that operation, the police carried out electronic surveillance, first on Mr Gray’s [one of those being sentenced] residence, and then in respect of a significant number of mobile telephones.  Some of the charges relate to more recent offending, committed while some of you were on bail.

[5]       Police investigations revealed a loose network of offenders, each connected to one or more co-offenders.  This was not a single, tightly controlled group.  Rather, each of you took opportunities to engage in drug-related transactions as the occasions presented themselves.  Some of those transactions occurred between two or more of you.  Some involved persons who are not before the Court.  but each of you was connected to all of the others, either directly or indirectly. While you were not tightly organised as a group, and indeed some of you knew few of the others, you all had one thing in common, namely a high degree of energy and dedication to what you were doing. It is proper to infer that, at least in most cases, your drug offending was the primary activity in your lives.

[6]       After carefully reviewing the convictions against each of the co-accused and their personal circumstances, the Judge turned to Mr Mosley and summarised his personal circumstances.  They included the appellant’s assertion that he was not a methamphetamine user and had a desire to reform but also that he had a significant number of earlier drug and firearms convictions.

[7]       After reviewing sentencing principles, the sentencing guidelines appearing in R v Fatu [2006] 2 NZLR 72 (CA) and other relevant authority, the Judge made general comments on the “untold human misery in this country” caused by methamphetamine manufacture and supply: at [59].

[8]       After dealing with the other offenders the Judge said of Mr Mosley that:

At trial there was transcript evidence of a very substantial number of transactions in which you were involved

and referred to a Crown analysis that the evidence proved supply by the appellant of at least 322 grams of methamphetamine.  He noted that trial counsel – not Mr Heaslip – did not challenge that evidence, though demurring as to detail.  The Judge recorded the Crown submission that its Schedule:

left out of account a significant number of smaller transactions which, taken together, appreciably increased the total quantity involved over the period of the offending.

and commented that:

It is impossible to reach any concluded view as to the precise quantity of drugs actually supplied: at [98].

[9]       Allan J noted the Crown’s contention that the appellant’s offending fell into the upper range of band 3 of Fatu whilst the appellant’s then counsel argued for the top of band 2 of the Fatu range.

[10]     The Judge accepted the Crown’s calculation of the appellant’s total supply of methamphetamine, concluded that offending on that scale placed the case at the top of band 2 of Fatu and accordingly adopted a starting point of nine years imprisonment.

[11] In relation to the firearms and Ecstasy offending, the Judge’s conclusion was that Mr Mosley was the “leading figure” in the Ecstasy conspiracy: at [100]. He then passed to the firearms offences and held all those offences to be an aggravating feature of sufficient seriousness to justify an increase of 18 months imprisonment on his starting point. That, he said, properly recognised the totality of the appellant’s offending.

[12]     Though the Judge clearly regarded Mr Mosley as the principal offender, it is pertinent to note that the terms of imprisonment imposed on the others before him ranged from two and a half to seven and a half years imprisonment.

Submissions

[13]     Mr Heaslip submitted that the sentence imposed was manifestly excessive, partly because too high a starting point was chosen and partly because of parity issues with the appellant’s co-offenders.  He submitted the ultimate sentence should have been six and a half to nine and a half years’ imprisonment.

[14]     For the Crown, Mr Mount relied on the Crown’s sentencing calculation of the scale of the appellant’s offending and pointed to the Judge’s acceptance of the appellant’s then counsel’s view of the offending in terms of Fatu.  Thus, he submitted, the starting point was appropriate and the 18-month uplift was justified in reflecting the totality of the appellant’s offending.

Discussion and decision

[15]     Dealing first with the starting point chosen, the sentencing Judge was very much in the best position to assess the appellant’s criminality by comparison with that of his co-offenders.  He was also in the best position to assess the correctness of the Crown’s calculation of the scale of Mr Mosley’s dealing in methamphetamine.  We note there was no challenge under s 24 of the Sentencing Act 2002 to the Crown’s calculation.  Indeed, as the Judge recorded, very experienced counsel who acted for Mr Mosley at trial took issue with the Crown’s calculation only in terms of relatively unimportant detail.

[16]     It is therefore not appropriate for this Court to differ from the sentencing Judge either in his assessment of the appellant’s methamphetamine offending or his selection of the appropriate point on the appropriate band of Fatu from which he chose the starting point.  Indeed, we note the starting band selected was that for which the appellant’s then counsel contended.

[17] There is ample authority to justify an increase in the starting point to reflect the further Ecstasy offending and the firearms convictions. We agree with the sentencing Judge’s observation that the “carrying of firearms … adds an appreciably increased risk of serious violence” to drug offending: at [101]. The uplift of 18 months for the Ecstasy and firearm offending might arguably have been seen as less than justified – but, having regard to the Judge’s assessment of the totality of the appellant’s offending, we see no basis to intervene.

[18]     The first point propounded by Mr Heaslip for the appellant accordingly has no substance.

[19]     We are similarly unpersuaded by the parity argument. 

[20]     The appellant’s co-offenders were convicted of a wide variety of offences under the Misuse of Drugs Act 1975 including conspiracies and dealing with different drugs.  As the sentencing notes make plain, their involvement in the drug offending was at different levels.  None were convicted of offences under the Arms Act 1983.  A relatively wide spectrum of sentences was accordingly to be expected.

[21]     Allan J appropriately assessed the level of Mr Mosley’s criminality, correctly chose the starting point for the methamphetamine convictions, correctly increased the starting point for the associated Ecstasy and firearms offending and ultimately reached a sentence which appropriately reflected the totality principle. 

[22]     No basis has been made out to intervene with the sentence of ten and a half years’ imprisonment imposed on Mr Mosley.  His appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington