Scott v The Queen

[2004] NZCA 80

IN THE COURT OF APPEAL OF NEW ZEALAND

CA34/04

THE QUEEN

v

CHERIE ANN SCOTT

Hearing:24 May 2004

Coram:William Young J
Williams J
Wild J

Appearances:  D G Slater for Appellant

G C de Graaff for Crown

Judgment:1 June 2004 

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

Nature of Appeal

[1]       On 20 January 2004 the appellant, Ms Scott, was found guilty by a jury in the Invercargill District Court of one count of possessing for supply a Class B drug, namely 50 tablets of a drug known as Rubifen.  That offence occurred on 26 September 2003.  Rubifen is also known as Ritalin and is usually prescribed for children with attention deficit hyperactive disorder (ADHD).  It is convenient to refer to the drug by its more common name, Ritalin, in this judgment.

[2]       Ms Scott earlier pleaded guilty to two counts of obtaining a document for pecuniary advantage, two of using such a document and one count of theft, those offences having occurred on 12 and 14 September 2003.

[3]       On 23 January 2004 Ms Scott was sentenced on all counts.  Judge Macaskill sentenced her to two-and-a-half years imprisonment on the possession for supply charge, concurrent sentences of eight months imprisonment with reparation of $1800 on each of the four counts of obtaining and using a document and three months imprisonment, also concurrent, on the theft.

[4]       Ms Scott now appeals to this Court on the ground the sentences were manifestly excessive.

Facts

[5]       The dishonesty charges arose when a wallet was stolen from a shopping trolley at an Invercargill supermarket.  Later that day Ms Scott went to a department store and used the complainant’s credit card as identification for purchase of a cellphone for $1023 and to increase the limit on the card with that store to purchase a DVD player.  Two days later she returned to the department store and shoplifted about $300 worth of baby clothes.  Only the cellphone was recovered and that in a damaged state.

[6]       In relation to the charge under the Misuse of Drugs Act 1975, Police executed a search warrant on Ms Scott’s flat shortly after the delivery of a courier bag.  When they entered Ms Scott was sitting near the opened courier bag and tried to secrete its contents.  The contents were found to be five sheets of Ritalin containing ten pills in each sheet.  On the way to the police station Ms Scott said she only got the pills sent to her twice a year and did not use them herself but gave them away.

[7]       At trial, there was evidence of a sticker ostensibly from the Manawatu on the courier bag.  There was also evidence of Ms Scott (or, on one occasion, her sister on her behalf) paying to the credit of a Ms Monk in Palmerston North sums of $200 (28 August 2003), $100 (5 and 10 September 2003) and $150 (25 September 2003).  When Ms Scott gave evidence she claimed she made those payments to Ms Monk for unpaid board incurred when she was staying with Ms Monk in Timaru some time previously, and the tablets came not from Ms Monk but from a man “Neville” whom she knew in Timaru.  She denied making the comment about her receipt of the pills and said the statement about giving them away related to discussions she had with the Police in which she was trying to stop the supply by others of methamphetamine.  However, as counsel for Ms Scott, Mr Slater, realistically acknowledged, the jury by its verdict must have rejected the appellant’s explanation and at a minimum concluded she possessed the Ritalin for purposes of supply.

[8]       It needs to be recorded that in her evidence Ms Scott accepted she had been a drug addict for a lengthy period prior to her admission to the methadone programme. She supported her evidence she was unlikely to have given the pills away by saying she had, when available, taken Ritalin at the rate of seven cards or seventy pills daily and as a result it was nonsensical for the Crown to suggest she would sell or exchange the Ritalin for other drugs.

[9]       It is also pertinent to note Ms Scott had a lengthy history of previous offending.  Over sixty convictions had been entered against her since 1987.  They broadly fell into two streams.  About half involved dishonesty, nineteen of which were for shoplifting.  As recently as March 2002, she had been sentenced on such charges to terms of imprisonment of up to nine months with leave denied to apply for home detention.  Apart from sundry others, most of the remaining convictions were for drug offences where the most serious result was an eighteen month term of imprisonment imposed in July 1997 on charges of possession of morphine for supply, selling or supplying morphine and conspiring to deal with a Class B drug.

Remarks on Sentencing

[10]     After recounting the broad facts of the offences, the District Court Judge noted lack of evidence of Ms Scott actually selling drugs in the past or this delivery (para [5] p2), recounted the offending history and the salient points of the pre‑sentence report, reviewed the authorities, Ms Scott’s continuing denial of responsibility for the charge under the Misuse of Drugs Act 1975, reviewed counsel’s submissions and then concluded (paras [22]-[25]) :

[22]     As to the structure of the sentencing it is not easy to formulate the most appropriate approach.  Looking at the dishonesty offending alone, it seems to me that overall a sentence of 12 months’ imprisonment is called for, given your record.  You are entitled to credit for your guilty pleas.  So taking that offending alone I would give you credit of one-third and consider that the appropriate sentence is eight (8) months’ imprisonment.

[23]     Moving to the Misuses of Drugs charge, it seems to me that on that matter I should impose a sentence that takes into account the totality of your offending.  Taking into account all of the matters to which I have referred and counsel’s submission, I have concluded that taken alone two (2) years’ imprisonment is the appropriate sentence on that charge.  Adding 12 months for the dishonesty offending and reducing that by four months for the guilty pleas, one would arrive at two years eight months.  However, given that it is a totality sentence I think it calls for a further modest discount and I have concluded that, taking a broad view, two years six months is the appropriate sentence.

[24]     On the charge of possession of a Class B controlled drug for the purpose of supply, you are sentenced to two (2) years and six (6) months’ imprisonment.  I need not consider the matter of home detention.

[25]     With respect to the four fraud charges, you are sentenced to concurrent sentences of eight (8) months’ imprisonment.  With respect to the charge 5912, I order that you pay reparation of $1,800. … With respect to the theft charge, relating to baby clothing valued at $300, you are sentenced to imprisonment for three (3) months.

Police v Monk

[11]     Though neither Judge was aware of the other’s involvement, on 8 April 2004 Judge Ross in the Palmerston North District Court, sentenced Ms Monk on one count of supplying a Class B controlled drug, namely Ritalin.  The Police view was she was Ms Scott’s supplier.  The summary of facts before that Court showed Ms Monk and Ms Scott had been in prison together when Ms Monk had been sentenced to six months imprisonment in May 2002 on charges related to the improper obtaining of a benefit.  Ms Monk has two sons diagnosed with ADHD, both of whom were prescribed Ritalin.  Following her release from prison and shifting from Timaru to Palmerston North she said there was contact – even pressure – from Ms Scott to sell excess Ritalin prescribed for her sons whom she was trying to wean off the drug.  She said that having received payment for the drug she sent it to Ms Scott by courier.  She admitted receiving the payments from Ms Scott.

[12]     Sentencing her, Judge Ross recorded submissions to the effect Ms Monk had succumbed to pressure from Ms Scott to sell her the drugs, noted Crown submissions as to aggravating features including premeditation and the previous offending but balanced the modest commercial aspect against that before concluding that her offending was (para [29]) “very much at the bottom end of the scale”.  The Judge recognised a starting point of two years imprisonment was open but then, after noting the plea of guilty and what he described as “significant” mitigating features by way of personal circumstances reached the view the appropriate term of imprisonment was one of eight months, granted her leave to apply for home detention and deferred the commencement of the sentence to enable her to care for her children.

Submissions

[13]     Mr Slater based his submission that Ms Scott’s sentence was excessive on two grounds, namely, that a sentence of two-and-a-half years was excessive for one count of possession of a Class B drug for supply and, secondly, on the disparity between the sentences imposed on the appellant and Ms Monk.

[14]     Responding to the Crown’s reliance on R v Wallace [1999] 3 NZLR 159, R v Orchard (CA162/01 28 August 2001) and R v Brown (CA45/02 3 July 2002) Mr Slater pointed to the fact that the last two related to possession of morphine sulphate, a drug readily convertible to heroin.  That, he submitted, distinguished the present case.  He also emphasised the small number of tablets - totalling in value no more than $500 - and Ms Scott’s statement to the Police that she gave them away and did not intend to sell them, though he acknowledged that submission conflicted with the appellant’s evidence.  He drew attention to the greater sentence imposed for the present offending than the previous drug offending though accepting it must have been more serious.

[15]     As to disparity, Mr Slater emphasised the sentence imposed on Ms Scott was not far short of four times that imposed on Ms Monk.  Such a disparity, he submitted, came within the well-known dicta in R v Lawson [1982] NZLR 219, 223 namely that comparison showed “something had gone wrong with the administration of justice”.

[16]     In response, Ms de Graaff submitted the sentence, though stern, was within range, particularly when taken in association with the dishonesty sentences.  She drew attention to expert evidence showing Ritalin has similar effects to methamphetamine though of shorter duration and emphasised the contrasting evidence of Ms Scott’s giving the drug away and what she said at trial.  She also drew attention to the evidence as to her reason for paying Ms Monk compared with what she submitted was the much more likely explanation on which the Crown relied.

[17]     As to disparity, Ms de Graaff submitted what may well have been a lenient sentence imposed on Ms Monk did not justify a reduction in the sentence imposed on the appellant, having regard to Ms Monk’s early plea, the difference in offending histories and different versions as to the instigation of the offence.

[18]     Ms de Graaff relied on Ms Scott’s considerable list of previous convictions including the lengthy period of imprisonment for drug offending.

Discussion

[19]     By its verdict the jury clearly rejected Ms Scott’s evidence and concluded she bought the Ritalin tablets from Ms Monk for the purpose of supplying them, whether by way of gain or gift.   In all likelihood, it concluded the statement she made to the Police on apprehension was more correct version than that she gave in evidence.

[20]     Orchard was an unsuccessful appeal against a sentence of two years three months following trial on a charge of possession of Class B drug namely morphine for the purposes of supply.  Other drugs charges brought lesser sentences.  The appellant had been in possession of nine morphine sulphate tablets worth a total of about $650.  The appellant was a drug user drug with other convictions for drug offending.  The Court concluded (para [9]) that the sentence was within the range in terms of Wallace and dismissed the appeal.

[21]     Brown was an unsuccessful appeal against conviction and sentence on a charge of having an offensive weapon in a public place and possession of morphine for supply.  He was sentenced to 21 months imprisonment on the drug offence and three months cumulative on possessing the offensive weapon.  This Court held (para [26]) that two years imprisonment for the drug offence was not manifestly excessive and was in line with cases such as R v Lee (CA303/89 4 December 1998) where two years imprisonment was imposed for possession for supply of 25 morphine sulphate tablets with a value of between $2,000 and $2,500.  On the totality principle a total of 24 months imprisonment was not manifestly excessive.

[22]     We take the view the Judge in this case did not err when taking a starting point of two years imprisonment for Ms Scott’s offending.  She purchased a number of Ritalin tablets, perhaps by battening on a supplier who was unable to resist her approaches and intended to supply them.  Although the sentencers were unaware of each other’s starting point, coincidentally they chose the same starting point.  We are unable to see error in that approach.

[23]     Then, having regard to Ms Scott’s lengthy history, particularly in drug offending and the 18 month sentence imposed on her in 1997, there was plainly justification for Judge Macaskill to increase the drug sentence to two-and-a-half years imprisonment to reflect the totality of her offences.

[24]     In cases of this sort, where the Judge is required to sentence for multiple sentences, and particularly where there is a possibility of conviction appeals, it is usually sensible to adopt the approach of the Judge here and impose a head or lead sentence on the most serious charge to reflect the offender’s total criminality along with concurrent but otherwise appropriate sentences on the other charges.

[25]     As far as disparity is concerned, it is not immediately apparent how the Judge arrived at the sentence he imposed on Ms Monk.  Having taken the same starting point as Judge Macaskill, he was justified in discounting that term by approximately one-third for her very early guilty plea.  Ms Monk’s criminality was not as great as Ms Scott’s but, even so, the ultimate result may still appear lenient.  However, given authority that imposition of a lenient term on one person involved in offending associated with another does not justify an unduly lenient sentence on that other, in the result in this case it could not be said that an observer would conclude that “something had gone wrong with the administration of justice”.

Result

[26]     In the result, our view is that no basis has been made out to conclude that the sentence imposed on the appellant was manifestly excessive either in terms of authority or in terms of the disparity between the sentence imposed on her and that on Ms Monk.

[27]     The appeal against sentence is accordingly dismissed.

Solicitors:
David G Slater, Invercargill, for Appellant
Crown Law Office, Wellington