The Queen v Bellingham

[2005] NZCA 26

IN THE COURT OF APPEAL OF NEW ZEALAND

CA399/04

THE QUEEN

v

JOANNE MAREE BELLINGHAM

Hearing:23 February 2005

Court:Anderson P, Williams and Salmon JJ

Counsel:H E Juran for Appellant

J M Jelas for Crown

Judgment:3 March 2005 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Salmon J)

[1]       The appellant was charged with 23 counts of offering to supply methamphetamine.  She pleaded guilty at a callover to 18 counts and was discharged on the remaining five.  On 3 September 2004 she was sentenced by District Court Judge Harvey to two and a half years imprisonment.  She appeals against that sentence. 

[2]       The charges arose out of a Police Operation called Operation Monster.  The summary of facts describes 18 occasions when the police intercepted text messages and telephone communications relating to the supply by the appellant to a Mr Kahui of quantities of methamphetamine.  The appellant was one of a number of people who offered to supply Kahui with the drug.  In her statement to the police the appellant denied making any offers of supply.  She claimed that her phone had been stolen and that it was not her voice on the recordings.  The appellant’s prosecution was set down as a standby trial during the week commencing 16 August 2004.  The trial could not be reached and was placed in the next callover list.  Shortly prior to that call over there were discussions with counsel for the appellant.  These discussions resulted in the pleas and discharges earlier referred to.

[3]       At the time of sentencing a pre-sentence report was not available.  Notwithstanding that, the Judge proceeded with the sentencing.  The Judge referred to a number of other instances of sentencing for this type of offending.  He identified a number of aggravating circumstances, particularly the commercial nature of the offending, its premeditation and its persistence over a period of time.  The Judge noted that the appellant had previous convictions for drug offending in 1992, 1997 and 1998.  He noted that counsel submitted that no drug was ever supplied or intended to be supplied.  The Judge took as a starting point three and a half to four years.  He gave credit for the guilty plea and efforts at rehabilitation and arrived at a sentence of two and a half years.

[4]       Mr Juran for the appellant submitted that the sentence was manifestly excessive and that the Judge should have stood down or adjourned the sentencing until he had had time to consider the pre-sentence report.  In his sentencing remarks the Judge had referred to R v Brown [1978] 2 NZLR 174 CA at [180] where the Court discussed the mischief that the charge of offering to supply was aimed at, as being:

…the stimulation in the offeree of an interest in drugs; and also that the temptation of addicts can have various socially undesirable consequences.

And at 181:

Of course the defendant’s ultimate intentions and his ability or otherwise to supply will be among the total facts of the case relevant in sentencing. 

[5]       Counsel submitted that the Court failed to give adequate weight to the appellant’s contention that there was no actual supply in this case and that the appellant had no intention of or ability to supply.  He referred to a further passage from Brown where the Court suggested that there may be particular circumstances of the offence justifying the sentencing Judge in not imposing a custodial sentence that would otherwise be mandatory.  Counsel submitted that the District Court Judge seemed to consider that there was intended to be a supply, and that this was not the case.  He submitted that the mischief was at the lower end of the scale in this case.

[6]       As to the absence of the pre-sentence report counsel acknowledged that the provision of such a report is not mandatory but refers to Inre Moulin [1943] NZLR 325 and to R v Spring CA221/85, 18 November 1985, where this Court said:

…that where a Court is contemplating a sentence of imprisonment it could only be in most unusual circumstances and where the term of imprisonment is to be very short, that such a sentence should be imposed without a pre-sentence report.

[7]       For the Crown Ms Jelas observed that the pre-sentence report recommended a sentence of imprisonment.  She noted that the appellant has 21 previous convictions, three of which are drug related and that in 1999 she was sentenced to five months periodic detention for possession of methamphetamine and possession of cannabis for supply.  She noted that the appellant’s rehabilitation efforts and explanation for the offending were contained in her letter to the Court which the sentencing Judge did read.  Counsel submitted that the personal matters referred to in the report could be of limited relevance in offending of this nature.

[8]       Counsel submitted that the sentencing Judge was entitled to treat the submission that there was never any intention to supply methamphetamine to Kahui with some scepticism and that the Judge was entitled to treat the offers made as genuine.  The appellant admitted she was addicted to methamphetamine at the time of the offending, that she shoplifted to support her addiction, and that she shared her drugs with others.  Counsel submitted that from these circumstances it was obvious that the appellant had access to methamphetamine and was a regular user.  Ms Jelas by reference to the recorded conversations and text messages suggested that it would be unlikely that Kahui, a known drug dealer, would continue to be in contact with the appellant if she did not supply him. 

[9]       Counsel drew the Court’s attention to the following sentences imposed upon other offenders in this police operation. 

(a)   R v Wilson CRN 3057008991, 93, 35-96, Pukekohe District Court, 10 November 2003, Sharp DCJ.  A sentence of two years and four months imprisonment was imposed on four charges of offering to supply methamphetamine.  Wilson admitted that she had supplied the methamphetamine offered.  A starting point of three and a half years was adopted.  Credit was given for the guilty plea, age of the accused and lack of previous convictions.

We note from the sentencing notes that although there was an admission of supply the Judge has been careful to base the sentencing on the actual charges of offering to supply.

(b)   Police v Oliver Dunedin District Court, Judge O’Driscoll.  Five years imprisonment on 25 charges of offering to supply and two charges of supply methamphetamine.  Starting point six and a half years imprisonment.

(c)   Police v Peter Wea Papakura District Court, Judge Sharp.  Two years five months imprisonment for three charges of offering to supply methamphetamine.  Credit for guilty plea.

(d)   Police v Eric Lee Smith Manukau District Court.  Three years imprisonment imposed for 13 charges of offering to supply methamphetamine.

[10]     Crown counsel submitted that the sentence imposed upon the appellant is comparable, if not light, when compared with other sentences imposed upon other offenders similarly charged with offering to supply.

Discussion

[11]     We accept Mr Juran’s submission that it was not appropriate for the Judge to sentence in this case without having the pre-sentence report before him.  Quite obviously the offending was considered to be sufficiently serious to justify the ordering of such a report.  Although s 26(1) Sentencing Act 2002 provides the Court with a discretion as to whether or not to order a pre-sentence report, we agree entirely with what this Court said in R v Spring in the passage referred to above.  The practice of obtaining a pre-sentence report where a sentence of imprisonment is contemplated is one of long standing as is evident from the comments of the Chief Justice Sir Michael Myers in In re Moulin [1943] NZLR 325 at 327. In referring to the practice he said:

The reason is simple.  No matter what the prisoner’s previous criminal record may be, and no matter what the Police or Crown Prosecutor may say of the offender’s character as gleaned from the Police records, there is always the possibility of the careful inquiry which the Probation Officer is expected to make resulting in the obtaining of some information which might dispose the mind of the Court to a more lenient sentence than might have been imposed without such information.  It is not right, in my opinion, that any Court should sentence a person to a long term of imprisonment – in this case twelve months’ imprisonment with hard labour to be followed by twelve months’ reformative detention – without having had the opportunity of considering a report from the Probation Officer.

[12]     Those comments are as pertinent now as they were over 60 years ago.  Although it has often been said that personal circumstances can carry little weight when sentencing for drug offending, it is nonetheless important that the Court should have the benefit both of the factual information supplied in a pre-sentence report and the opinion of the officer in his or her areas of expertise.  Having said that, we accept that in this case, as counsel for the respondent has submitted, the principal matters able to be put in mitigation or otherwise relevant to sentencing were in fact before the Judge.  We, of course, have had the benefit of reading the pre-sentence report and have been able to take it into account in our deliberation.

[13]     We have carefully considered the matters raised on behalf of the appellant.  It is clear, however, and Mr Juran acknowledged this, that the offers to supply were intended by the appellant to be taken seriously.  Those offers extended over a period of two months.  They contained all the detail as to quantities and price that one would expect to find in a serious offer.  They were made by a person who, because she was an addict, must obviously have had her own source of supply.  The sentence imposed is in line with those imposed on other offenders involved in this operation.  That being the case, we conclude that the final sentence imposed by the Judge whilst stern cannot be said to be manifestly excessive.  For these reasons the appeal is dismissed.

Solicitors:
Crown Solicitors, Auckland