Smith v The Queen
[2013] NZHC 1057
•10 May 2013
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI 2013-412-0008 [2013] NZHC 1057
BETWEEN RAMON SMITH Appellant
ANDTHE QUEEN Respondent
Hearing: 9 May 2013
Counsel: R D Smith for Respondent
J Ablett Kerr QC and D J Matthews for Appellant
Judgment: 10 May 2013
JUDGMENT OF HEATH J
This judgment was delivered by me on 10 May 2013 at 4.45pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
McKinnn Aitken Martin, PO Box 870, Dunedin Crown Solicitor, PO Box 803, Dunedin Counsel:
J Ablett Kerr QC, PO Box 46, Dunedin
SMITH V R HC DUN CRI 2013-412-0008 [10 May 2013]
The appeal
[1] Mr Smith seeks leave to appeal out of time against a sentence of nine months home detention, 200 hours community work and 12 months post home detention with special conditions imposed1 following his pleas of guilty to one charge of supplying a Class B controlled drug (Methylphenidate) and one of selling the Class C controlled drug, cannabis. Both charges were laid on a representative basis. Pleas of guilty to each charge were entered on 30 November 2012.
[2] The Police do not oppose an extension of time to appeal.
[3] Ms Ablett Kerr QC, for Mr Smith, submits that the Judge erred by applying an excessive starting point for what she submits was non-commercial offending. A starting point of two years imprisonment was taken, having regard to what was said by the Court of Appeal in its tariff judgment on Class B controlled drugs, R v
Wallace.2 The second point arises out of an alleged disparity with a sentence
imposed on another person whose offending was detected during the same Police operation, Ms Jacobs.3
Sentencing in the District Court
[4] Mr Smith was charged with supplying his female partner with the Class B controlled drug Methylphenidate, more commonly known as Ritolin. It was a representative charge covering the period between 15 August 2012 and 26 August
2012. He was also charged with selling the Class C controlled drug cannabis to a person over the age of 18 years, between 1 August 2012 and 30 October 2012.
[5] For some time, Mr Smith had been a drug addict. In March 2012, he consulted the Community Alcohol and Drug Service (CADS) in Dunedin and began to participate in its methadone programme. In a report dated 27 November 2012, a
medical officer from CADS advised the Court that Mr Smith continued to take
1 R v Smith DC Dunedin CRI 2012-012-3708, 31 January 2013 (Judge Fraser).
2 R v Wallace [1999] 3 NZLR 159 (CA) at para [32].
3 R v Jacobs DC Dunedin CRI 2012-012-3704, 29 January 2013 (Judge Fraser).
appropriate medication and that his concentration levels while at work had
“significantly improved”.
[6] Ms Ablett Kerr placed emphasis on Mr Smith’s potential. He has completed a degree in computer science from the University of Otago, notwithstanding his need to transfer from Victoria University of Wellington following his addiction to opiate drugs. Sadly, both he and his partner became addicted to drugs, to the extent that at one stage they were both using heroin intravenously.
[7] During the period covered by the charges, Ms Ablett Kerr submits that Mr Smith, while attempting to rid himself of his drug addiction through his attendances at CADS, was trying to help his partner by providing Ritolin to her at times when he feared that she may take her own life. At this time, his partner was also sourcing drugs from Ms Jacobs, the person in respect of whom the disparity point is taken.
[8] Both Ms Jacobs and Mr Smith were sentenced in the District Court at Dunedin by Judge Fraser. When sentencing Mr Smith, Judge Fraser specifically referred to another “offender up for similar offending [that he] dealt with the other day”.4 That was a reference to Ms Jacobs, whom he had sentenced on 29 January
2013. Mr Smith was sentenced two days later.
[9] Judge Fraser took a starting point of two years imprisonment for Mr Smith. That was the same starting point he had taken for Ms Jacobs’ offending.5 Judge Fraser said:
[7] Given that the start point is two years, with an uplift of three months for the cannabis offending, the start point is 27 months. I am prepared to discount that for remorse, which I accept is genuine, and also the rehabilitative issues, at a rate of 10 percent. That factors it back to a sentence of two years and two weeks. I then deduct a full R v Hessell [2010]
2 NZLR 298 (CA) credit of 25 percent for your guilty plea, which takes a further six months off that sentence, which ultimately leaves an end point sentence of 18 and a half months.
[8] That converts to home detention and I am satisfied in these circumstances that home detention is a denunciating and deterrent sentence. Denunciation and deterrence are the pre eminent factors in relation to drug
4 R v Smith DC Dunedin CRI 2012-012-3708, 31 January 2013 at para [2].
5 Ibid, at para [5] and R v Jacobs DC Dunedin CRI 2012-012-3704, 29 January 2013 at para [18].
dealing, with personal circumstances relegated in importance. The Court of
Appeal says in R v Hill (2008) 23 CRNZ 744 and R v Iosefa [2008] NZCA
453 that it is a denunciating, deterrent sentence and I accept that.
[9] Accordingly, the sentence outcome will be a sentence of nine months’ home detention on both matters. You will do 200 hours’ community work and special conditions are imposed for a period of 12 months post expiration of the home detention.
Sentencing of Ms Jacobs in the District Court6
[10] Ms Jacobs was charged with supplying the Class B controlled drug, Oxycodone Hydrochloride. It was a representative charge, reflecting the sale on six occasions of OxyContin pills for personal use between 8 September and 6 October
2012. The person to whom the pills were sold was Mr Smith’s partner.
[11] The supply was commercial in nature, the sale price being somewhere between $15 and $30 per item. Ms Jacobs had 13 previous occasions for drug offending, including possession of cannabis and manufacture of morphine.
[12] In sentencing Ms Jacobs, Judge Fraser accepted the Crown’s submission that a starting point of something in the range of two years six months to three years imprisonment was appropriate, having regard to R v Wallace. He also recorded that the Crown had acknowledged that the case might be one in which it was appropriate to commute any sentence of imprisonment to home detention. The Judge then said:
[9] In terms of drug offending like this it is necessary to impose a sentence which is seen as denunciating and deterrent. It is also necessary to consider the protection of the community from people who sell drugs or supply drugs to others. Acknowledging those factors as being paramount, running alongside that is also a need to promote a sense of responsibility and acknowledgement of your part for this offending. I take into account the least restrictive outcome.
[10] In terms of aggravating features I guess one can say that there was an advantage taken of the vulnerability of the other party, the offending was premeditated and your previous significant convictions.
6 In sentencing both Ms Jacobs and Mr Smith, Judge Fraser referred to s 6(4) of the Misuse of Drugs Act 1975. He referred to that provision, in the context of a presumption that an offender should be sentenced to imprisonment unless, having regard to the particular circumstances of the offence or of the offender, the Court is of opinion that the offender should not be so sentenced. Section 6(4) applies only to Class A controlled drugs. While the Judge was in error in referring to that provision in the context of Class B and Class C controlled drug sentencing, nothing turns on the point as both Ms Jacobs and Mr Smith received a sentence of home detention.
[11] In terms of mitigation your guilty plea is acknowledged and your remorse is also acknowledged. Adding to that, I record that the work that you have done subsequently to this conviction recognises what I describe as a level of insight and at least a contemplative will to do something about the problems that you have.
[12] Supply of any drug is particularly serious, hence the maximum sentence that I have referred to for this offending. The Courts have said consistently that personal circumstances are relegated in importance to the need to deter dealing in drugs with their potential harm to the vulnerable.
[13] The leading sentencing authority for this sort of offending, R v Wallace and Christie refers to the following and I quote it, “…dealing by addicts warrants no different response from dealing out of greed or otherwise motivated.” That Court also said that commercial dealing for smaller operations up to five years’ imprisonment is appropriate, although it was also quick to say that each sentence has to reflect the many varied circumstances of offending.
...
[15] In this case, whilst this is significant offending, you have no previous of supplying. Acknowledging the limited supply and in the particular circumstances of this case I am satisfied that a short sentence of imprisonment should be imposed, but that then converts to a sentence of home detention.
[16] Whilst denunciation and deterrence is uppermost the Court of Appeal also says that a sentence of home detention can be seen as denunciating and deterrent.
[17] In my view, it is important not to dislodge what you have committed
to and that it is in society’s interests to reform you if at all possible.
[18] I have looked at the authorities that have been supplied and I see a start sentence of two years for offending like this uplifted by a further six months for previous offending which is conservative in the circumstances. I acknowledge remorse and rehabilitative measures undertaken by you and I give you a credit for that. I then give you a credit for your guilty plea at the earliest time which would have resulted in an end sentence of one year and eight months.
[19] Whilst a straight mathematical conversion to home detention is not warranted in this instance, recognising the seriousness of this offending, you will be sentenced to nine months’ home detention. You will do 150 hours’ community work and I authorise 20 percent of that for the purposes of training or skills.
Was Mr Smith’s sentence manifestly excessive?
[13] Ms Ablett Kerr did not contest the uplift for the cannabis offending of three months, but did challenge the starting point of two years for Class B offending. She
submitted that R v Wallace does not deal explicitly with non-commercial offending and that the starting point ought to have been considerably reduced.
[14] With respect, I consider a more holistic approach is required, particularly when the assessment of whether a sentence is clearly excessive is by reference to the end sentence imposed, rather than the constituent parts.7 My concern is that there was an element of commerciality in the transactions that led to the charges that were brought against Mr Smith.
[15] The case for Mr Smith is that he supplied Ritolin to his partner as a compassionate response to her condition. In order to obtain Ritolin, he acquired cannabis from a third party and exchanged it for Ritolin. The barter of cannabis for Ritolin can be seen, in one sense, as commercial; though that description arises from its character as trading rather than from a motive for profit. As a matter of degree, I consider that barter is less serious than a sale for profit.
[16] By way of analogy, the Court of Appeal has previously rejected the notion that there is any distinction between “commercial and social forms of supply”. In R v Franklin,8 the Court held that the starting point should be fixed by reference to “the scale of the supply, namely, the quantity, quality and value involved and the frequency of the transactions”. It emphasised that it was the “nature and scale of the offending that leads to the appropriate starting point for sentence”. That was said in
the context of a supply of Methamphetamine which had (at that time) recently been reclassified from Class B to Class A.
[17] Despite the submissions of Mr Smith, for the Crown, that an overall starting point of two years and three months imprisonment could be justified as responding to the totality this particular offending, I do not consider that the appellate authorities that he cited support that view. The two cases on which Mr Smith placed most
reliance were R v Orchard9 and R v Peehi.10
7 Xie v R [2007] 2 NZLR 240 (CA) at paras [16] and [17].
8 R v Franklin CA363/04, 15 March 2005, at para [23].
9 R v Orchard CA162/01, 28 August 2001.
10 R v Peehi CA430/02, 24 March 2003.
[18] In Orchard, the Class B controlled drug was morphine and the charge involved possession for supply. There were also charges relating to possession of a precursor substance for manufacturing purposes and possession of cannabis. While the Court of Appeal upheld a starting point of two years and three months imprisonment, the profit motive was plainly present in that case; some $785 was found in the offender’s possession when searched and the Judge was satisfied that
money was derived from drug dealing activity.11
[19] In Peehi, the Court of Appeal dismissed an appeal against a sentence of two years six months imprisonment on charges of being a party to the supply of morphine to an undercover officer. The offending occurred while Mr Peehi was subject to a suspended sentence. Nevertheless, there was an element of commerciality involved. The comments of the Court of Appeal in relation to the applicability of the Wallace guidelines must be read in that context. Baragwanath J, delivering the judgment of the Court, said:
[16] We do accept the appellant's submission the guidance in Wallace is particularly directed at commercial dealing. We also accept that the Crown did not establish that financial benefit was an intended element of his offending. It does not however follow that Wallace has no application to the present case. That is because of the commercial dealing that occurred in this case, which the appellant knowingly facilitated. As Mr Garbett acknowledged in the course of oral argument the relevant passages in Wallace are para [32] (para [11] above) and:
[25]… 4. …Participants in distribution at lower levels should be dealt with proportionately to their culpability as assessed by the sentencer.
…
[17] It is plain that the appellant knew very well both that Comer was a dealer and that the transaction he facilitated would be for money. The latter may also be said of the count one offending.
[18] Parliament's concern is with the supply of drugs to the community. There is need for deterrence of all those minded to facilitate such supply in whatever manner.
[20] Given the circumstances of this case, and taking account of the bartering component, I consider that a starting point of no more than two years imprisonment
11 R v Orchard CA162/01, 28 August 2001 at para [5].
was appropriate to respond to Mr Smith’s culpability for the two sets of offending. That reduces the combined starting point by some three months.
[21] After giving credit for remorse and rehabilitation of 10 percent, the Judge deducted a full credit of 25% for Mr Smith’s guilty pleas. Adjusting those calculations for the revised starting point I have chosen, I allow three months for mitigating factors other than the guilty pleas and a further five months to reflect those pleas. On that approach an end sentence of one year four months imprisonment would be imposed.
[22] Judge Fraser commuted the sentence of imprisonment of just over one year and six months to home detention, imposing nine months home detention and 200 hours community work, together with special conditions for rehabilitative purposes for a period of 12 months. Even adopting an indicative term of imprisonment of one year and four months, it is difficult to say that the end sentence imposed by the Judge was clearly excessive. It is the effective sentences of home detention and community work that take on the most significance, not the term of imprisonment that would otherwise have been imposed. In my view, (leaving aside the disparity point) the sentence was within the range available to the Judge.
Parity
[23] The second issue concerns the question of parity with Ms Jacobs’ sentence. Plainly, Ms Jacobs was dealing commercially. As counsel for the Crown candidly (and, in my view, responsibly) accepted, had Mr Smith and Ms Jacobs stood in the same dock on the same day to be sentenced by the same Judge, it is difficult to see how Mr Smith’s offending could have been regarded as more serious than that of Ms Jacobs.
[24] However, that is not the test to be applied. In R v Lawson,12 McMullin J, for the Court of Appeal, observed that Courts must ensure a degree of consistency to maintain public confidence in the administration of justice. But, he added, “the test
of intervention by an appellate Court is not merely whether an offender feels a sense
12 R v Lawson [1982] 1 NZLR 219 (CA) at 223.
of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice”. It is necessary for the disparity to be “so gross” that right thinking members of the public are likely to consider something has gone wrong in the administration of justice.
[25] An equally important principle is that a lenient sentence imposed on an offender ought not necessarily bring the disparity principles into play. In Mau’u v R,13 the Court of Appeal considered whether an appeal should be allowed on a disparity argument where a co-offender had received an unduly lenient sentence. The Court said:
[28] On a number of occasions, this Court has emphasised that “a gross and unjustifiable disparity” does not necessarily result in the reduction of a sentence imposed on a co-offender. This is reflected in the principle that no greater adjustment is appropriate than is necessary to protect the integrity of the criminal justice system. For example, in both R v Ryder [CA116/98, 23
June 1998] and R v Thompson [CA45/98, 22 December 1998], this Court observed that an appellate court must consider “whether reducing a proper sentence imposed on one offender in order to bring it into line with the sentence imposed on a co-offender would itself cause public concern at the administration of justice”. Two wrongs do not make a right.
[26] This is a case in which the disparity, while plain, is not so “gross” as to justify interference with the sentence imposed on Mr Smith that I have already held to be within the bounds available to the Judge. Reduction in the appropriate sentence imposed on Mr Smith would, in my view, not be seen by right thinking members of the community as an appropriate response to Mr Smith’s offending; notwithstanding the unduly lenient sentence that Ms Jacobs received.
[27] Linked to the disparity point was Ms Ablett Kerr’s submission that Mr Smith should receive a lesser sentence on compassionate grounds. Reference was made to my sentencing remarks in R v Hereora,14 and to R v Jarden,15 a decision of the
Supreme Court that I applied in that case. Hereora involved the supply of Class A
13 Mau’u v R [2011] NZCA 385.
14 R v Hereora [2012] NZHC 3422.
15 R v Jarden [2008] 3 NZLR 612 (SC).
controlled drugs in a gang setting. Mr Hereora had taken remarkable steps to rehabilitate and to distance himself from former gang associates.16
[28] In Jarden, the Supreme Court acknowledged that there may be cases in which, despite the need for deterrence in sentencing drug offenders, there was room to take account of personal circumstances that contributed to the offending, or arising on purely compassionate grounds. In Hereora, I said that I did not consider Jarden was intended to limit the second of its categories to compassionate grounds; rather, the Supreme Court was recognising that an element of mercy could be
introduced into a sentencing exercise.17
[29] Acknowledging the ability to adjust a sentence on that basis, I do not consider there is anything exceptional about the circumstances with which Mr Smith was faced to justify any reduction on that ground. Many people are affected adversely in their career as a result of a conviction for serious drug offending. Also, Mr Smith had other choices available to him when he supplied his partner with the drugs. It is quite ironic that Mr Smith went to the trouble of procuring cannabis to exchange for Ritolin at a time when he was undertaking rehabilitative therapy for drug abuse. There was a disconnect between the two aspects of his life. If a drug addict were thinking clearly enough to undergo rehabilitation, one can only regard offending such as this as premeditated in character.
Result
[30] For those reasons, an extension of time to appeal is granted but the appeal against sentence is dismissed.
P R Heath J
Delivered at 4.45pm on 10 May 2013
16 See R v Hereora [2012] NZHC 3422 at paras [21]–[26] (inclusive).
17 R v Hereora [2012] NZHC 3422 at paras [18]–[20].