Saifiti v The Queen

[2004] NZCA 210

IN THE COURT OF APPEAL OF NEW ZEALAND

CA41/04

THE QUEEN

v

WAHA SAIFITI

Hearing:31 August 2004

Coram:Anderson P
John Hansen J
Randerson J

Appearances:  C L Harder for Appellant

P K Hamlin for Crown

Judgment:2 September 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This is an appeal against a sentence of nine and a half years imprisonment imposed in respect of two counts involving criminal dealings with the then Class B controlled drug methamphetamine.  The appellant was convicted following a 14 week trial before Williams J and a jury in the High Court at Auckland, on one count of manufacturing the drug and one count of conspiring to supply it.  Brett Allison was convicted on the same two counts, Fa’afete Taito was convicted on one count of conspiring to manufacture methamphetamine and all three, together with William Hines and David Dunn were convicted of conspiring to supply methamphetamine. 

[2]       At the time of sentencing by Williams J the appellant and Allison faced maximum sentences of 14 years and 10 years on the respective counts, and the other criminals faced a maximum of 10 years imprisonment on each of the various counts of which they had been found guilty.  The jury had disagreed on counts of manufacturing methamphetamine faced by Hines and Dunn, but Hines pleaded guilty before another trial could be held and was sentenced about four months after the imposition of the sentences under appeal.  The appellant was sentenced to imprisonment for nine and a half years on the manufacturing count and for seven and a half years for the conspiracy, the sentences to be served concurrently.

[3]       The appeal is brought on two grounds.  First, that the overall sentence of nine and a half years imprisonment is inherently manifestly excessive.  Second, that there is an unjust disparity between the overall sentence and that imposed on (a) Hines, who was given seven years imprisonment for conspiracy to supply and, subsequently, a concurrent sentence of six and a half years imprisonment for manufacturing methamphetamine; and (b) Allison who was sentenced to 10 years imprisonment.

[4]       In the year 2000 the appellant and his co-offenders devised a plan under which Allison, whose knowledge and willingness to manufacture methamphetamine characterised him in the argot of the drug underworld as a “cook”, would be supplied with the facilities for manufacture.  Those included premises equipment, chemicals and possibly money.  The manufactured product would then be distributed through networks headed by the appellant and Hines.  Manufacturing began in September 2000 at a factory in East Tamaki.  Towards the end of September the manufacturing operation was moved to another property at Kelston in the west of Auckland.  Manufacturing continued there for several weeks until 9 November, the date of a Police action which captured and shut down the operation.

[5]       The appellant’s participation included the supply of 12,600 tablets capable of being manufactured into methamphetamine of a quantity between 12 and 20 ounces and a commercial value of between $135,000 and $290,000.  Pre-empted by the Police action was an intended further purchase of a thousand packets of pills capable of producing between 32 and 48 ounces of methamphetamine with a commercial value of perhaps over $300,000.  The appellant actually supplied others with methamphetamine of a value between $40,000 and $60,000. 

[6]       When imposing sentence, Williams J expressed the view that the offending was commercial activity on a substantial – very possibly a major – scale showing premeditation, sophistication, organisation, manufacture over time and involving substantial quantities of the drug.  The offending was well planned in the sense that it needed the acquisition of a large number of items of laboratory equipment or the modification of household items, and also involved the acquisition of a very large number of tablets to provide raw materials.  The Judge found that the operation needed persistent and lengthy implementation involving two separate premises and the manufacture of a considerable amount of methamphetamine over a period of about six weeks or possibly more.

[7]       The Judge’s evaluation of the scope of the offending was such as to place it at the bottom of the first category or the top of the second category of methamphetamine offending, identified by this Court in R v Wallace [1999] 3 NZLR 159. That is how this Court also categorised the present offending when dealing with an appeal against sentence by Taito in R v Taito CA342/03, 2 March 2004.  Given that the principal offenders were convicted not just of manufacturing methamphetamine but also conspiracy to supply on an extensive scale, a sentence which fell in the lower reaches of the first category in Wallace cannot be considered manifestly excessive.  This appellant’s overall sentence of nine and a half years, and Allison’s of ten years, is clearly within an available range.

[8]       There were no mitigating factors as far as the appellant is concerned.  At the time of the particular offences he was 47 years of age with his whole adult life having been marked with continual criminality for which many terms of imprisonment for years had been imposed.  These included six years for aggravated robbery and four and a half years in connection with the theft of the largest sum of money ever stolen in New Zealand at the time.  Deterrence of an habitual criminal must be given weight and when that factor is brought into account in this case the aptness of the sentence is reinforced.

[9]       Mr Harder took issue with the Judge’s reference to a planned purchase of a further thousand packets of tablets on the grounds that future action could not properly aggravate proved past action and should therefore not have been considered in relation to the sentence for manufacturing.  He did concede, however, that it could be relevant to a conspiracy charge.  In our view the planned future purchase of materials for manufacture is part of the overall indications of criminality comprehended by the two counts on which the appellant was convicted.  It was the overall criminality that was relevant to the ultimate sentence.  As this Court has said on numerous occasions, for example, in R v Peters CA12/03 14 May 2003, the issue whether a sentence is manifestly excessive must be examined in terms of the sentence actually passed rather than the precise process by which it is reached.  In other words, the effect of a sentence is often more relevant than its components. 

[10]     Mr Harder also criticised what he submitted was an inadequate treatment by Williams J of submissions made on the appellant’s behalf at sentencing in relation to the quality of the methamphetamine in the case.  He submitted that there was evidence, including audible evidence on the intercepted communications, that the product distributed by the appellant was not pure methamphetamine or “P” but what is known in the drug community as “chop”, that is, methamphetamine cut to a low level of purity, say ten per cent, through the addition of substances like glucose.  There are two difficulties for the appellant in the particular submission.  First, the sentencing notes indicate that the Judge did have regard to such submissions but did not consider it appropriate to take them into account.  Second, such adulteration of the pure produce indicates a correspondingly increased potential market.  In any event, the methamphetamine that was produced would no doubt have been at a very high level of purity.  We find nothing in the point raised.

[11]     We turn now to the issue of alleged unjust disparity.  As we have indicated, this was argued on a bifurcated basis, the submissions being that the disparity was unjustly inadequate in relation to Allison and unjustly excessive in relation to Hines.

[12]     The basic test for whether an appellate court should intervene on the grounds of alleged unjust disparity is whether a reasonably minded, independent observer aware of all the circumstances of the offence and the offender would think that something had gone wrong with the administration of justice.  See, for example, R v Lawson [1982] 2 NZLR 219, 223. In relation to the comparison between the appellant’s sentence and that of Allison, we consider that Williams J was justified in drawing only a slight distinction between the “cook” and the appellant who was so extensively and instrumentally involved in the whole criminal enterprise. Williams J presided over a 14 week trial and also a hearing to determine disputed facts for the purposes of sentencing. He concluded that there was not much to distinguish the appellant’s position from that of Allison, that the appellant was so close to the organisation and implementation of the scheme that his secondary liability had little weight. He found that the appellant had incited and counselled Allison in his efforts, that he may have procured the offending, and that he played his part in providing pills, chemicals and perhaps money. We see no proper basis to disagree with Williams J’s conclusions that, in effect, the criminality of the appellant and of Allison were virtually on a par.

[13]     As to Hines, who received an overall sentence of seven years imprisonment, it is to be noted that there were a number of distinguishing features which were considered over the course of what became two sentencing exercises for that offender.  These included remorse and apology, strong family support for rehabilitation, ultimately a guilty plea on the manufacturing count and the need to adjust the sentence on that count to prevent the timing of it by reason of the jury’s disagreement from extending, in a way which Williams J obviously thought would be unfair, the effective sentence imposed following the trial.

[14]     But in addition there are points of distinction in terms of culpability.  Hines provided significantly fewer tablets for the purpose of manufacture and was, overall, less involved in the driving of the unlawful enterprise.

[15]     We are satisfied that a reasonably minded independent observer aware of all the circumstances would not think that something had gone wrong with the administration of justice when looking at the sentences imposed, respectively, on Allison, the appellant and Hines. 

[16]     We are not persuaded that the sentences imposed on the appellant are manifestly excessive or unjustly disparate from the sentences of the co-offenders Allison and Hines and the appeal is accordingly dismissed.

Solicitors:
Crown Solicitors, Auckland