R v Walker

[2002] NZCA 406

THE QUEEN

V

BILLY TAUIRA WALKER

Coram:  McGrath J Anderson J Glazebrook J

Appearances:  Appellant in person

A Markham for Crown

Judgment: (on the papers)     25 July 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]      This is an appeal against a sentence of 25 months imprisonment imposed in respect of three counts of dishonest receiving and one count of selling cannabis.  The appeal has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.   The relevant materials included documentary exhibits, a copy  of  the  indictment,  a  summary  of  facts,  and  the  District  Court  Judge’s sentencing notes.  The Notice of Appeal briefly sets out two grounds of appeal which will be examined later in this judgment.  Mr Walker made a submission in writing as did the Crown.  All relevant materials have been considered by the members of the Court who have conferred and agreed upon this judgment.

Circumstances of the appeal

[2]      During the year 2000, Police at Hamilton became concerned about burglaries and thefts which seemed linked to drug dealing, particularly in relation to cannabis. They set up an operation using undercover agents, one of whom had dealings on several occasions with the appellant.  The appellant twice sold stolen property to the undercover officer in circumstances suggesting that the appellant wanted money to buy drugs.  The property comprised a compressor, a sander, two angle grinders and a bench grinder.  On a subsequent occasion the undercover Police officer accepted an offer for the sale of an ounce of cannabis which the appellant obtained and delivered for a consideration of $300.  The appellant also received a stolen photocopier and printer.  The total value of the stolen goods was about $1,500, although the sales to the undercover Police officer were for about half the relevant values.

[3]      The appellant faced a number of counts but on the eve of trial pleaded guilty to three counts of receiving and one count of selling cannabis, whereupon the other counts in the indictment in respect of him were withdrawn.

[4]      The appellant’s de facto partner Ms Kiri Morgan, who was also named in the indictment, pleaded guilty to three counts of selling cannabis.  It is pertinent to note that she was sentenced to 12 months imprisonment followed by nine months supervision.

Reasons for sentence

[5]      Although no reference was made in the District Court Judge’s sentencing notes specifically to R v Terewi [1999] 3 NZLR 62, the tenor of the sentencing remarks which included references to “category 2” and “…fall within the category of two years to four years” suggests that the sentencing approach examined in that case informed the District Court Judge’s decision to impose a sentence of 25 months imprisonment. The sentencing notes suggest that counsel, both for the Crown and for the appellant, accepted that the sentencing range was between two and four years, seemingly by reference to Terewi.

included several for assaults on a female, one for burglary and one for theft, as well as a number of other offences indicating a somewhat undisciplined and antisocial attitude.  She adverted to reliance on alcohol and drugs and appeared diffident about prospects  of  rehabilitation.     The  Judge  approached  the  issue  of  parity  with Ms Morgan on the basis that the latter had not faced receiving charges and had not the same criminal history.

[7]      When speaking to a Probation Officer the appellant said that he had obtained cannabis reluctantly as part payment for a car which he had sold to a gang member. The cannabis was in lieu of $700 unpaid purchase price.  The District Court Judge made a reference to that in her sentencing notes in the following terms:

Clearly there seems to be association with gang offending, and indeed one  of  the  explanations  that  you  put  forward  for  the  sale  of  the cannabis is that you sold your car to a gang member who then gave you cannabis and it was as a result of that you determined to sell the drug.

[8]      The Judge adopted a starting point of 30 months imprisonment and reduced that by five months for the guilty plea.

Appellant’s submissions

[9]      In his written submissions in support of the appeal the appellant said that all he wished to do was to refer to the implication that he was related to gang activity, a fact which he strongly denied.  He said that he did not have nor had in the past any affiliation with any gangs and that when he initially sold the car and received part payment in cash he was unaware of gang affiliations.   He did not know that the outstanding balance would be tendered in cannabis.  He said that having [at the date of the submission] served a significant portion of his sentence he was prepared to discharge the remainder of it as ordered by the Court but did not wish it to be on record that the offence was in some way connected to gang affiliation.  He referred briefly also to “the significantly short sentence that my co-offender received”.

Crown’s submission

[10]     The Crown submission in writing makes it plain that there is no suggestion that the appellant was himself a gang member or affiliated with any gangs, and submits that the Judge does not make that suggestion.  In counsel’s submission the Judge’s reference to gang offending was not treated as an aggravating feature but was mentioned by way of an explanation for the offending.

[11]     As to the issue of unjust disparity in relation to Ms Morgan, counsel drew the

Court’s attention to s8A(2) of the Criminal Justice Act 1985 which provides:

Where a Court imposes a community-based sentence cumulative on a sentence  of  imprisonment,  the  total  duration  of  the  combined sentences shall not exceed the term of imprisonment that would otherwise be appropriate for that offence.

[12]     Counsel submitted that because Ms Morgan received a combined sentence of imprisonment and supervision the “equivalent” sentence in terms of imprisonment is

21 months which is not indicative of any unjust disparity in relation to the appellant, particularly when the appellant also stood to be sentenced in respect of the receiving counts.

Reasons for judgment

[13]     We are rather surprised that in the District Court the Judge and counsel seemed to have accepted that the cannabis offence should attract a sentencing range of between two and four years.  There is nothing in Terewi to suggest that a single sale of a limited quantity of cannabis leaf, such as an ounce, should fall within that range.  Terewi was concerned with the cultivation of cannabis and not with selling cannabis or possessing cannabis for supply.  The categories set out in Terewi may be helpful but need to be applied with care.   It is noted in any event in Terewi that, where sales are infrequent and of very limited extent, a lower starting point may be justified.  This is not to suggest that there is a twilight zone between Category 1 and

2.   This Court rejected that in R v Andrews [2000] 2 NZLR 205. It is merely to suggest, as set out in Terewi, that the actual scale of commercial operations needs to be examined.

[14]     The circumstances in which the sale or possession for sale of a relatively modest amount of cannabis occurs may indicate actual drug dealing on a wider scale thereby  warranting  a  firm  sentencing  response.    See  for  example  R  v  O’Brien CA 226/96, 30 September 1996, where this Court dismissed, ex parte, an appeal against a sentence of three years imprisonment in respect of the possession for sale of ten cannabis bullets.   That offender was in possession of a revolver, a large amount of money, and had nearly $20,000 in a safety deposit box.   Such context indicated fairly large scale commercial offending.   The present appeal is not of a similar degree.  Indeed, the Police factual summary tends rather to suggest that the appellant’s dishonest receiving was motivated by a desire to buy drugs rather than that he was a drug seller except on the particular occasion.

[15]     In R v Tozer CA 45/98, 1 April 1998, this Court dismissed an appeal against a sentence of three years imprisonment plus a fine of $10,000 and the forfeiture of a van used in connection with cannabis dealing.  Like the present case there were three counts of receiving.  But there were eleven counts relating to the sale of cannabis, some of 24 grams and at least one relating to a single foil, but on one occasion eight ounces was sold.  Mr Tozer had 20 previous convictions for receiving and the scale of his cannabis dealing was indicated by the period of offending, almost a year, and his confession that he “usually bought a pound for $4,000”.  A further aggravating feature was his attempt to recruit a young student into selling cannabis.  In disposing of the appeal this Court approved R v Smith [1980] 1 NZLR 412 which reviewed the pattern of sentencing in cannabis dealing cases. Smith is now more than 20 years old and although its principles may be affected by Terewi it has never been specifically overruled.  We note that in Terewi one of the appellants, Mr Hutchings, had received a sentence of two years imprisonment for selling four ounces of cannabis on each of two occasions, as one element in a composite sentence covering eleven offences against the Misuse of Drugs Act 1975.  This Court took no issue with that aspect of the sentence.

[16]     We are satisfied that even allowing for the three receiving offences and the appellant’s criminal history a starting point of 30 months imprisonment was manifestly excessive.  It seems to have been adopted because of a misunderstanding

in the District Court about the culpability of a single sale of a relatively modest quantity of cannabis leaf.

[17]     The appellant’s concern, as we have mentioned, is not so much with the length of sentence, which he seems prepared to serve, but with the implication of gang associations.  That concern may be met by the recording in this judgment of the Crown’s disclaimer of any such suggestion.

[18]     Although the appellant’s personal attitude to the sentence and the passage of time may render this appeal more or less academic we think it important to correct any impression that as a general principle a solitary commercial transaction for a modest amount of cannabis leaf warrants consideration of a starting point between two and four years imprisonment.   We think all relevant concerns can be met by allowing the appeal against the sentences, quashing each of them and substituting a sentence of 15 months imprisonment in respect of each of the receiving counts, such to be served concurrently, and six months imprisonment in respect of the offence against the Misuse of Drugs Act to be served cumulatively on the 15 month sentence for receiving.  The result is an overall sentence of 21 months imprisonment which we think is the maximum that could reasonably be contemplated in all the circumstances.  We conclude with the caution that this judgment should not be taken to establish a tariff of six months imprisonment for the sale to an adult of 28 grams of cannabis leaf.

Solicitors

Crown Law Office, Wellington