Reardon v The Queen

[2004] NZCA 51

IN THE COURT OF APPEAL OF NEW ZEALAND

CA459/03

THE QUEEN

v

NORMAN GARTH REARDON

Hearing:25 March 2004

Coram:Chambers J
Laurenson J
Randerson J

Appearances:  M Harland for Appellant

P K Hamlin for Crown

Judgment:19 April 2004 

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

INTRODUCTION

[1]       The appellant has appealed against a sentence of three years imprisonment imposed in the District Court at Hamilton on 12 September 2003 in respect of:

a)Three charges of selling cannabis (s6(1)(c) of the Misuse of Drugs Act 1975).

b)One charge of having possession of cannabis for sale (s6(1)(f)).

Background

[2]       On 5 January 2003 an undercover police officer visited the home of the appellant’s former partner and co-offender. Although the appellant did not normally live at this property he visited it frequently and was present at the time of the visit. He sold two tinnies to the officer for $20 each. Payment was made by way of two $20 notes. The visit had not been prearranged.

[3]       When the police searched the property later the same day they found the appellant at the dining table preparing more tinnies with the assistance of a pair of scales. The police found four other tinnies in a shoe near the back door. They also found $5,000 in cash, mainly in $20 notes hidden inside a teddy bear in a bedroom. One of the $20 notes paid over by the police officer earlier was found in the appellant’s possession, the other in possession of the co-offender.

[4]       The appellant admitted to the police he had been selling cannabis to people who had called at the address.

[5]       The appellant pleaded guilty to the charges on arraignment on 17 July 2003.

The sentencing decision

[6]       The Pre-Sentence Report revealed the following:

a)The appellant was then 47 years of age.

b)He was in receipt of a WINZ benefit and had not held any employment for 16 years.

c)The appellant is a carrier of Hepatitis C virus. He is on a methadone programme and picks up his medication daily. In addition, he periodically suffers from lower back pain and poor eyesight in his left eye.

d)He was reported as not selling a lot of cannabis and that he mainly restricted his sales to friends. He advised that he “could have sold five times that amount”, and that he was only restricted by illegality of the drug and hence caution.

e)He stated that the $5,000 found in the teddy bear was from an original sum of $22,000 from the sale of a house. He denied the implication that the funds were derived from drug sales.

f)He has eight previous drug related convictions from 1982. He last appeared before the Court in July 2001 for possession of cannabis for supply, and in June 2001 for possession of cannabis and cultivating cannabis. At his last Court appearance he was issued a final warning.

g)He was ambivalent when asked whether his attitude to selling cannabis contributing to his offending. He stated that he enjoyed the extra income that selling cannabis provided and that he did not consider there was anything wrong with selling cannabis to consenting adults. He said he would not sell to children.

h)He did not present to the probation officer as motivated to address his offending behaviour by way of intervention. Although he stated he intended to change his drug using behaviour and secure employment, this was treated with scepticism as these sentiments had been echoed in two previous Pre-Sentence Reports. His previous sentence of nine months supervision failed to achieve a change in attitude to drugs and drug use.

i)The probation officer’s recommendation was imprisonment.

[7]       Judge Spear, when sentencing the appellant, noted:

a)The sales in question were to a complete stranger, someone who simply turned up at the door seeking to purchase cannabis.

b)There was no evidence that the appellant had sold to anybody under 18 years of age, and accordingly he was sentenced on the basis that there were no sales to anybody under 18 years of age, nor that the appellant was open for business to those under 18 years of age.

c)This was serious offending because it involved someone actively employed, or self-employed, in the trade of cannabis at the level of a tinnie house operation.

d)The appellant was regarded as being in a far more serious position than the co-offender.

[8]       The Judge stated:

I am in no doubt at all that you are someone who has the attitude that the illegal trade in drugs is one that provides you with the opportunity to make an income beyond your benefit. Your conviction history confirms that. You are clearly a person who operated a cannabis tinnie house operation at a reasonably significant level notwithstanding that only a few actual sales were detected. You are certainly entitled to credit for your plea of guilty, but the principal or primary consideration for the Court must be to a sentence that holds you fully accountable for what you have done; a sentence that operates as a deterrent to you and to others who would contemplate involving themselves in the commercial trade in cannabis.

I am not interested at all in your attitudes to the use of cannabis. I simply tell you that the Courts have lost patience with you and your excuses. I pay no account to your statement that you now have a job and that you want to turn over a new leaf and indeed I do not believe you in that latter respect. You are a person who is going to be sentenced to longer and longer terms of imprisonment, right up to the maximum, if you do not clean up your act. You must understand that your previous convictions put you into that category.

[9]       As to sentence, the Judge said:

I am prepared to grant you credit of six months for your pleas of guilty, but that still brings you back, in my view, to a sentence of three years imprisonment. I understand that the Crown submission is that a sentence of 18 months to two years imprisonment is appropriate here. However, in my view, that would be inadequate to recognise your antecedents, it would be inadequate to recognise your blatant approach to this offending, and it would be inadequate to operate effectively as a deterrent to you and to others for this type of offending.

Grounds of appeal

[10]     The appellant submitted that the sentence of three years imprisonment was manifestly excessive, given the particular circumstances of the case.

[11]     The first ground advanced was that the evidence as to the extent of the appellant’s dealing did not justify a starting point which included aggravating features of three and a half years before deduction for the plea of guilty. In R v Terewi [1999] 3 NZLR 62 (CA) this court identified three broad categories of cannabis cultivation. Category 2 was identified as encompassing small scale cultivation of cannabis plants for commercial purposes with the object of deriving profit, the starting point for which should generally be between two to four years imprisonment but where sales were insignificant and of very limited extent a lower starting point might be justified. In R v Keefe (CA274/02, 28 November 2002) this court confirmed that the categories referred to in Terewi are relevant to dealing offences.

[12]     The appellant submitted that a starting point of two and a half years including aggravating features was appropriate.

[13]     In this case, there were only two actual sales each of $20 and on the following day only a further six “tinnies” were located. Admittedly, the sum of $5,000, largely in $20 notes, was also found sealed in a teddy bear but there was no direct evidence available to disprove the appellant’s contention that these monies were some of the proceeds from an earlier sale of a property. It was therefore submitted that the extent of the appellant’s dealing could not reasonably be shown to extend beyond sales to friends as asserted by him. This being the case, the court should have considered a starting point which after allowance for the plea of guilty would have produced a lesser net sentence.

[14]     The second ground was that other comparable cases also demonstrated that the sentence was too high. The first such case was R v Phillips (CA298/98, 29 October 1998) where a net sentence of two years and three months was imposed after an allowance of three months for a plea of guilty. In this case only two sales, each of $20, was proved. However, the appellant had previous convictions for dealing in cannabis including one where a sentence of twelve months had been imposed. The sentencing Judge had considered that a deterrent sentence was required “for persistent and recidivist offenders”.

[15]     On appeal, the Court of Appeal whilst noting that the small quantity actually located “is not to be viewed entirely in isolation” nevertheless, concluded that overall the appropriate sentence should be eighteen months imprisonment.

[16]     In R v Leighs (CA360/2002, 15 September 2003) this court upheld a sentence of three years imprisonment after the appellant had been found guilty at trial. In this case the police had located 32 concealed cannabis bullets and $327.75 mainly in $20 notes. The appellant had what was described as “a significant list of previous convictions for cannabis offending”.

[17]     It was submitted that both the above cases were appropriate indicators that the starting point which must have been selected in this case was too high.

[18]     Further matters referred to were:

a)That the evidence did not justify a finding that “the appellant was a person who operated a cannabis tinnie house operation at a reasonably significant level, notwithstanding that only a few actual sales were detected” (para 14).

b)Insufficient weight was given to the fact that the property visited by the undercover policeman was the home of the co-offender.

c)There was in fact no evidence of any other sales or any significant amount of cannabis found at the property.

d)There was no evidence that the $5,000 found was from illegal drug activities.

The Crown response

[19]     The Crown submitted that Judge Spear’s starting point was justified by the aggravating factors in this case. These were noted as being:

a)The nature and extent of the appellant’s eight previous convictions for drug offending between 1982 and 2001, three of which had resulted in imprisonment in 1982 and 1988. The most recent conviction was in 2001 when he had been sentenced to seven months periodic detention and when the sentencing Judge had ordered that a final warning be recorded. The present offending was only 18 months after this sentence.

b)The nature of the sales namely to a complete stranger, indicated a blatant approach to offending by the appellant.

c)The appellant’s recalcitrant attitude as recorded in the pre-sentence report.

[20]     Whilst both Phillips and Leighs were comparable to a degree, both could be distinguished on the basis that in neither case was there evidence of dealing to the extent admitted by the appellant, and as indicated by the discovery of the $5000.

[21]     The Crown submitted that this latter factor was significant as a matter of circumstantial evidence given:

a)The sum was made up primarily of $20 notes, which is a common denomination used for the purchase of tinnies.

b)If the sum had come from the earlier sale of a property it is not sensibly conceivable that it would be hidden away in a teddy bear rather than in a bank account.

c)The appellant is a beneficiary.

d)He had consented to the forfeiture of the $5,000 after sentence had been imposed.

Discussion

[22]     In our view, the key issue to be determined in this appeal is whether the Judge was entitled to conclude that the evidence in this case did provide a sufficient basis for concluding that the appellant was in a far more serious position than the co-offender, and that he was “clearly a person who operated a cannabis tinnie house operation at a reasonably significant level notwithstanding that only a few actual sales were detected”. In other words, that he was entitled to adopt a starting point of between three to four years imprisonment which included aggravating factors but before any deduction for mitigating factors.

[23]     As we see it, there were five evidential bases which the Judge relied on to come to the conclusion he did, namely:

e)The prior history of offending and notably the last instance some eighteen months beforehand.

f)The final warning recorded on the last conviction.

g)His admissions as to the extent of his dealings.

h)The blatant approach to offending as evidenced by the particular sale to a complete stranger.

i)The presence of the concealed $5,000.

[24]     A problem which emerged during the course of the hearing was the extent to which, if any, the Judge was entitled to rely on the evidence of the $5,000 as an indication of the extent of the dealing. At the time of sentencing, the appellant had disputed that the $5,000 was from dealing in cannabis. As the Judge noted, a Crown application for the forfeiture of this sum still remained unresolved at the point when sentence was imposed. An order for forfeiture was later made either by consent or in the absence of opposition from the appellant.

[25]     It seems to be implied however, that the Judge had concluded that the $5,000 was in fact the result of drug dealing. We reach this conclusion by reference to para 7 of the sentencing notes where the Judge said:

The police also found $5,000 in cash that had been hidden inside a teddy bear in a bedroom – and made up of $20 notes. It is well understood that the $20 note is the usual amount that is paid for tinnies and that indeed was what the undercover police officer was charged by you for the two tinnies you purchased.

No reference was made at that point to the appellant’s explanation regarding the $5,000.

[26]     The fact remains that at the point when sentence was imposed the important issue as to the source of the $5,000 was unresolved. Accordingly, it could not properly be taken into account for the purposes of sentencing: s24 Sentencing Act 2002.

[27]     However, even if the $5,000 is left to one side, having considered the matter, we have concluded that the remaining four matters referred to in para [23] provide a proper justification for the conclusion reached by the Judge. Indeed, when viewed together, we consider that it would have been quite unrealistic for him to have come to any other conclusion. The appellant, by his own admission, and against the background of his previous criminal conduct, was clearly dealing in cannabis on a regular basis with whomsoever presented themselves.

[28]     The Judge must have had a figure of three and a half years before the deduction of six months for the guilty plea. We are satisfied that this was appropriate. We agree with the Crown’s submission that whilst both Phillips and Leighs are in some respects comparable, they are nevertheless distinguishable from the present case which clearly discloses dealing at a higher level and over a greater period of time.

[29]     Having reached these conclusions we consider the sentence imposed cannot be said to be wrong in principle, and the result cannot be said to be excessive let alone manifestly so.

Result

[30]     For the above reasons this appeal is dismissed.

Solicitors:

Crown Solicitor, Auckland