Reid v The Queen

[2010] NZCA 10

IN THE COURT OF APPEAL OF NEW ZEALAND

CA264/2009
[2010] NZCA 10

BETWEENSETH ALEXANDER REID

Appellant

ANDTHE QUEEN

Respondent

Hearing:11 February 2010

Court:Ellen France, Venning and Miller JJ

Counsel:S C Poore for Appellant

A M Powell for Respondent

Judgment:17 February 2010 at 11.30 am 

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]        Mr Reid appeals against his sentence of four and a half years’ imprisonment imposed for three counts of conspiring to supply a class B drug ecstasy, conspiring to sell a class C drug cannabis, supplying a class A drug LSD, offering to supply a class A drug LSD, offering to supply a class B drug ecstasy, supplying the class B drug ecstasy, offering to sell the class C controlled drug cannabis, selling the class C controlled drug cannabis and offering to supply a class B drug morphine.  A number of the charges were representative.[1]

[1]      R v Reid and Anor DC Christchurch CRI-2008-009-003873, 17 April 2009.

[2]        Judge Doherty took as a starting point six years’ imprisonment.  He then imposed an uplift of six months because the offending occurred while the appellant was serving a sentence for an earlier offence of selling cannabis and having possession of cannabis for supply.  The Judge then gave a credit of approximately 25 per cent or 18 months for the guilty pleas and a further credit of six months for the appellant’s expressed remorse and attempt to address his drug addiction, leading to the end sentence of four and a half years’ imprisonment. 

Appellant’s submissions

[3]        The appellant submits the end sentence of four years six months was clearly excessive because the Judge erred in taking, as the lead offence for sentencing purposes, the class A drug offending.  Mr Poore submitted that the most serious and therefore the appropriate lead offence was that of supplying the class B drug ecstasy.  He did not challenge the uplift or the discount for the guilty plea and other mitigating factors.

[4]        Mr Poore noted that a co-accused, Duncan, was sentenced on the basis that the lead offence was the ecstasy offending which ultimately led to an end sentence in the case of Duncan of three years four months’ imprisonment.[2]  He submitted that if the Judge had taken the class B offending as the lead charge in the appellant’s case, a lower start point would have been fixed, with the result the end sentence would have been in the region of three years.

Decision

[2]      R v Duncan DC Christchurch CRI-2007-009-017193, 22 September 2008.

[5]        The appellant’s offending arose out of his involvement in a drug supply ring in Christchurch between the months of November 2007 and March 2008.  The police investigation led to the arrest of 12 individuals including the appellant. 

[6]        In the course of his sentencing notes Judge Doherty referred to the sentences imposed on a number of co-offenders, Duncan, [3] Ranger,[4] Rock[5] and Gilbert.[6]  The Judge summarised the appellant’s offending as:

[5]         It can be seen from my recitation of the range of charges that you, Reid, have had a more significant involvement across all three classes of drugs.  In particular, the facts are that during the week of 4 December 2007, Ranger and Duncan obtained a quantity of Ecstasy tablets, 400.  They got those from some source in Wellington.  Ranger sold to Duncan, on the 11^th of December 2007.  There then ensued significant text message traffic between you, Reid, and Duncan.  You intended to purchase a large proportion of those tablets for on-selling.  Unbeknown to you, the police were monitoring your text messages.  They seized the drugs on the 11^th of December. 

[6]         After that conspiracy ended, you continued to conspire with your other mates to try and obtain Ecstasy and to on-sell them to individual customers.  You sold 40 LSD tablets to Duncan.  You offered to supply LSD on nine separate occasions.  You sold Ecstasy on two occasions and offered to supply it on 17 occasions over a five week period.  On one occasion, you offered to sell nine Morphine Sulphate tablets.  Your cannabis dealing is described as being prolific.  You conspired with several associates on an ongoing basis to source and on-sell cannabis and you sold cannabis directly on 85 occasions and offered to sell it on a further 101 occasions. 

[7]         I am told that between the 2 January and 11 March 2008, you sent and received hundreds of texts offering to sell both Ecstasy and cannabis.  I have seen the text of some of those texts.  What happened there, is that you continued your conspiracy and your dealing even after the initial action by the police, wherein Ranger was arrested and you were implicated.  You simply lay low for a couple of days and then recommenced your operations having purchased a new cellphone.

[8]         The reading of the text and the information I have, leads me to the view that you were engaged in a significant and concerted commercial enterprise.  You might not have netted a lot of money, but you were very active in either conspiring, supplying, selling or offering to supply Ecstasy, LSD, morphine and cannabis. 

[3]      R v Duncan DC Christchurch CRI-2007-009-017193, 22 September 2008.

[4]      R v Ranger DC Christchurch CRI-2007-009-017822, 21 November 2008.

[5]      R v Rock DC Christchurch CRI-2008-009-011856, 21 November 2008.

[6]      R v Gilbert DC Christchurch CRI-2008-009-004198, 28 November 2008.

[7]        Mr Poore criticised the summary of facts and suggested it was not clear whether the allegation was that the appellant’s involvement in the conspiracy related to communications about 200 ecstasy tablets or the 100 tablets which he negotiated to purchase.  He also noted the summary recorded 10 offers to sell a $50 bag of cannabis.  He submitted that there might have been only one bag which the appellant had offered to sell ten times. 

[8]        Even accepting a degree of ambiguity in the summary of facts, a review of the summary confirms the Judge was right to describe the drug offending by the appellant in this case as a significant and concerted commercial enterprise.  The Judge properly imposed concurrent sentences in this case given the nature of the offending and the connection between the different types of offending.  In imposing concurrent sentences the Judge was directed by s 85(4) of the Sentencing Act 2002 to impose the penalty appropriate for the totality of the offending on the most serious offence.  Judge Doherty took the most serious offence in this case as the class A offending in relation to the LSD.  In the case of Duncan, Judge Neave had taken the class B offending in relation to ecstasy as the lead sentence because of its scale.  Neither Judge can be criticised for the approach they took.  There were more counts in both cases in relation to the ecstasy offending but the class A offending carried the longer maximum sentence. 

[9]        When the sentences are considered, in substance there was little difference between the two approaches to the seriousness of the respective offending.  In sentencing Duncan, Judge Neave took a starting point of four years for the ecstasy and uplifted that to five and a half years to take account of the totality of Duncan’s offending including his offending in relation to class A, LSD and class C, cannabis.  However, earlier in his sentencing notes Judge Neave had correctly observed that the LSD, if taken on its own, would have attracted a sentence of four to five years and the cannabis dealing between nine months and a year.  In Duncan’s case the Judge could have taken the LSD as the lead charge attracting a sentence of four to five years and then uplifted that by reference to the class B ecstasy and class C cannabis offending to arrive at the same end result of five and a half years as the start point.

[10]       In the present case it was open to Judge Doherty, on the information available to him, to impose the lead sentence on the most serious offence, namely the class A offending. 

[11]       Different judges will construct sentences in different ways.  Choosing the lead offence where there are a number of related offences will be a matter of individual discretion and assessment.  What is important ultimately is the end result, the assessment of the overall culpability for the offending.

[12]       In the present case the start point of six years’ imprisonment for the offending was well within the range available to the Judge to reflect the total offending of the appellant in this case.  The difference between the start point for Duncan of five years six months and the six years in the case of the appellant is justified by the Judge’s assessment that the appellant had had a more significant involvement across all three classes of drugs.  That remains the position, even allowing for the ambiguity in the summary of facts.  No objection is taken to the uplift or the discount provided for the mitigating factors identified by the Judge.  The end sentence of four and a half years imprisonment, while perhaps stern for a young man such as the appellant, cannot be described as manifestly excessive in the circumstances of this case.

Result

[13]       The appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent