R v Thompson
[2004] NZCA 68
•19 May 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA435/03
THE QUEEN
v
JANET ROBYN THOMPSON
Coram:McGrath J
Chambers J
O'Regan JCounsel:W Lawson for Appellant
G C de Graaff for CrownJudgment (On the papers): 19 May 2004
| JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J |
Cannabis dealing in Rotorua
On 15 January 2002 police executed a search warrant at Janet Thompson’s home in Rotorua. When they arrived at the address, they saw a vehicle leaving. They talked to the driver. He admitted purchasing a cannabis tinny from the address.
When the police entered the house, they came across Nirai Nikora. He admitted to the police selling cannabis from the address. Police found a chilly bin containing 39 tinnies made up ready for sale. They also found other tinfoil pieces that had been cut up ready to be used in the preparation of tinnies. In the kitchen and laundry were a set of electronic scales and smaller pocket scales and other drugs paraphernalia and remnants.
Ms Thompson was not present when the police executed the search. When she was spoken to by the police, she stated that she lived at the address, but she declined to say anything about the cannabis.
The police subsequently charged Ms Thompson with selling cannabis and with knowingly permitting her premises to be used for the purposes of the commission of an offence against the Misuse of Drugs Act 1975, namely selling cannabis. She stood trial. The jury found Ms Thompson not guilty on the former charge, but guilty on the latter.
The trial judge, Judge McGuire, sentenced Ms Thompson to six months’ imprisonment. He refused to grant leave to apply for home detention.
Ms Thompson has appealed to this court on the basis that her sentence was manifestly excessive. This appeal has been heard on the papers under ss392A and 392B of the Crimes Act 1961. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by members of the court who have conferred and agreed upon this judgment.
Issue on the appeal
There is only one issue on this appeal: was imprisonment the appropriate penalty? If imprisonment is the appropriate penalty, then there is and could be no realistic challenge to the six month term.
Whether imprisonment was appropriate
Judge McGuire determined that a sentence of imprisonment was appropriate for the following reasons, taken together:
(a)Ms Thompson’s home was, on the evidence, “a fully operational tinny house”.
(b)Ms Thompson knew full well what was going on at her house.
(c)Ms Thompson had a string of previous drug convictions, including in 1999 a conviction for allowing her premises to be used for the purposes of selling cannabis, in respect of which she had been sentenced to non-residential periodic detention for five months. Her cannabis offending went back almost 20 years. In addition, she had previously been convicted of possession of LSD, morphine and methamphetamine.
Mr Lawson, for Ms Thompson, submits that imprisonment was an inappropriate penalty, notwithstanding the fact that it had been recommended by the probation officer and notwithstanding the factors referred to by the judge. In particular Mr Lawson submitted that Judge McGuire had:
a)Failed to place due weight on Ms Thompson’s personal circumstances, namely that “she was in a violent and abusive relationship and had limited opportunity to control the use of the premises”; and
b)Failed to give due weight to the fact that Mr Nikora, who had pleaded guilty to one charge of supplying cannabis (two tinnies) and possession of methamphetamine (described as “a small amount”), was sentenced to four months’ periodic detention.
We consider those submissions in turn. As to the first, Mr Lawson submitted that Ms Thompson was living in a violent relationship with a Mr Tepania and had all the hallmarks of her being a “battered woman”. He submitted that “Ms Thompson could do little to stop the premises being used”. While he acknowledged she was the registered tenant, he submitted “she did not exercise real control over what occurred at the property”.
Ms de Graaff, for the Crown, submitted that there was no evidence to support those assertions. Nor, she submitted, had Ms Thompson sought leave to adduce further evidence in this court to support those claims. She said that some of them at least appeared to be counter to the jury’s verdict. Ms de Graaff submitted that the submissions now advanced on Ms Thompson’s behalf effectively raised a defence – lack of control – not run at trial. At trial the defence had been identity.
We consider there is considerable merit in Ms de Graaff’s submissions. We consider that Judge McGuire adopted a lenient attitude in taking Ms Thompson’s personal circumstances into account, given the lack of evidence concerning them. He was prepared to accept that, “to some extent anyway, [she] was subject to the evil influence of others and…simply went along with what was happening around [her]”. But as the judge said when sentencing Ms Thompson, “that sort of situation occurs quite often”. It was not open to the court, the judge said, to conclude that an accused was not the complete master of his or her own destiny, with the consequence that punishment was inappropriate. While the judge did not cite authority for that proposition, it is nonetheless clearly in line with authority from this court: see R v Howard CA315/99 2 December 1999 and R v Richards CA272/98 15 October 1998. Judge McGuire’s decision to impose a custodial and deterrent sentence, despite Ms Thompson’s assertion as to Mr Tepania’s influence, is consistent with these authorities and the long-standing principle that personal circumstances are relegated in importance to deterrence in sentencing for commercial drug offending.
We turn now to the second ground on which Mr Lawson relied, namely disparity of sentence.
We note first that Mr Lawson did not comply with para [10] of the Practice Note – Criminal Appeals [2002] 1 NZLR 788. The Practice Note requires “counsel raising [the] disparity to ensure that all necessary materials are brought before the Court”. The Practice Note records that at a minimum the court will need at the hearing a statement of facts or other evidence upon which the other sentence was based, the victim impact report, the pre-sentence report, including the offenders previous record, and the judge’s sentencing remarks. Mr Lawson supplied none of that information. All Mr Lawson told us about Mr Nikora was that he was “convicted and sentenced to four months’ periodic detention for the sale of cannabis from the address on 16 January 2002”. That is most unsatisfactory.
Fortunately, Ms de Graaff was able to discover some further information about Mr Nikora’s offending. It is clear from that information that Mr Nikora’s position was quite different. Mr Nikora pleaded guilty on his first appearance. He had far fewer convictions than Ms Thompson, the last being back in 1990. The most serious punishment he had ever served was community work back in 1978; he had never been to prison or even ordered to serve periodic detention. We still do not know what his other personal circumstances were, but it is clear that his position was significantly different from Ms Thompson’s.
The principles to be applied when “disparity” is raised are well established: see R v Rameka [1973] 2 NZLR 592 (CA) and R v Lawson [1982] 2 NZLR 219 (CA). It is for an appellant to show that the disparity is unjustifiable and gross. The test for intervention by an appellate court is not merely whether an offender feels a sense of grievance over the sentence imposed on her compared with that imposed on a fellow offender, but whether the disparity is such as not to be consonant with the appearance of justice. Ms Thompson has not come close to demonstrating disparity of a kind justifying appellate intervention.
Accordingly this ground of attack must also fail.
Result
We dismiss the appeal against sentence.
Solicitors:
Lance Lawson, Rotorua
Crown Law, Wellington
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