The Queen v Brent Neville Curtis
[2002] NZCA 73
•18 April 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 377/01 |
THE QUEEN
V
BRENT NEVILLE CURTIS
| Hearing: | 28 February 2002 |
| Coram: | Anderson J Baragwanath J Potter J |
| Appearances: | M Dyhrberg and J B Wickliffe for Appellant |
| B R Northwood for the Crown | |
| Judgment: | 18 April 2002 |
| JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J |
Following a seven-week trial in the Auckland District Court the appellant was convicted by a jury on a count that between 22 October 1999 and 11 January 2000 at Auckland he and a number of others conspired to supply a Class B controlled drug, namely methamphetamine, to other persons unknown. He appeals the sentence of four years imprisonment imposed on 2 November 2001 on two grounds: of disparity with that of four years imposed on a co-accused Deane Gerard Boyden, and that it is in any event manifestly excessive.
Background to sentencing the appellant
The Crown case was based upon recordings of private communications intercepted by the police pursuant to an interception warrant issued by this Court under the Misuse of Drugs Act 1975. The electronic phase of what was called Operation Mexico covered the period alleged in the indictment.
Listening devices were installed in the home of the co-accused Boyden and his partner, Susan Clare Spiller, and on the telephone line serving their house in Onehunga.
The evidence of conversations in the house, including telephone conversations, led to the count, among others, on which the accused and seven co-accused were convicted.
It was the Crown case that Boyden was the central operator of the conspiracy. The sentencing Judge determined that Boyden was central to it and was controlling a ring that was heard to be planning distribution. He was in regular contact with large numbers of people including the others convicted with him. The operations included people living in Northland, Auckland, South Auckland and the Waikato. There were discussions about price and about debts and there was evidence of activities relating to the bagging of substances, all in a context of planned distribution of methamphetamine. The Judge was satisfied that the discussions concerned transactions involving hundreds of dollars, thousands of dollars and sometimes tens of thousands of dollars and he sentenced Boyden on the basis that the amount of methamphetamine, whose purity it was not possible to establish with any certainty, was such as to entail a conclusion of a commercial operation on a substantial scale.
The Judge was suspicious that someone other than Boyden dominated the operation. He stated to Boyden:
...if somebody else were more central or more important than you, and that has not been obvious then that is just their good luck. The evidence nevertheless shows that you were a person who was central to this whole thing and you were plainly the one who was manipulating this affair even if it were the case that you were receiving some sort of authority from somebody else.
The Judge’s approach to sentencing the appellant
The Judge observed:
[...] there was no evidence that I can recall which showed [the appellant] being overtly involved in contact with Class B controlled drugs, but there was a stunning venomous phone message left by him for Boyden’s consumption of a threatening nature which could only be understood to show that Curtis had some kind of controlling influence over Boyden.
…
The jury were well aware of the caution which they had to approach their job with and I can only reach the conclusion that they were influenced by the nasty nature of his threatening language to Dean[e] Gerard Boyden to the extent which they accepted that the basis on which the Crown put the case about Curtis was that he was a key player in all of this.
Having described Boyden as “central” and as “controlling a ring” which was heard to be planning distribution, and having then identified the roles of lesser offenders, the Judge stated:
I now have to determine where Curtis comes.
The Crown has always put their case on the basis that Curtis is somewhere above Boyden. I accept on the evidence that Curtis was a person who had influence over Boyden. There could in my view be no other explanation for his conduct towards Boyden and the respect with which other members held him when things went wrong in terms of payment or collection in the course of this operation, but Curtis was never heard to participate in consumption of drugs or to be present when drugs were being bagged or even, except on one occasion, was there any possibility that he was there talking about transactions which could be made. The Jury knew and understood all of this, but they found him guilty. While there remains a lurking suspicion that Curtis might well have been someone above Boyden in this matter, I prefer the safe conclusion that he and Boyden were somewhere on the same pla[ne] in this affair.
He later stated:
Mr Curtis - I have indicated to you that I see you on a similar level to Mr Boyden but you are a person with no previous convictions which are of relevance to what I am doing today. You did not plead guilty, you took your chances and you gave evidence which was plainly rejected by the Jury. You are entitled to a reduction of your sentence because of your lack of relevant previous convictions. Treating you on the same basis as Boyden, but with a starting point of 4½ years but giving you a credit for having no previous convictions, you are convicted and sentenced to imprisonment for four years.
So while declining to accept the Crown’s submission that the appellant was “somewhere above” Boyden in the hierarchy of the offenders, the Judge also rejected the defence submission that he was at any lower level of culpability.
Submissions
Submissions for appellant
Ms Dyhrberg submitted that there was insufficient evidence to allow the Judge to classify the appellant as a prime offender. She submitted that the Judge erred in adopting, on the appellant’s sentence, the same starting point of 4½ years as he used for Boyden, albeit deducting six months for his previously clear record. That is for two reasons: (1) since the appellant’s role was not shown to be other than subordinate to that of Boyden; and (2) because the respective mitigating and aggravating factors required a lesser sentence for the appellant than for Boyden. She further submitted that in any event a starting point of 4½ years was excessive for the offending established.
Submissions for the Crown
Mr Northwood challenged both defence submissions.
The disparity ground
(1) The Crown did not establish that appellant’s role was other than as subordinate to Boyden
The evidence available to the Judge consisted of the tapes of the Police surveillance and the transcript with the latter of which we were supplied. The following passages are material. Some expletives, where immaterial, have been deleted.
The first passage on 9 November 1999 commencing at 0143 was a telephone message left by the appellant for Boyden.
CURTISYeah Deane, it’s Brent here. Hey listen, I’ve been sitting around here waiting for you all night. Just another broken promise. I call this phone too about 10 times. You get my shit over here man. You get my shit over here in the morning or there will be trouble mate. Sick of you fucking me around. You are just tryna piss me off. Well I tell you right now, you’ve done a good job of it. You called me at 7.30 and said you would be an hour. I wonder how many hours ago that was? I tell you something mate, you get your arse into gear and you get around here tomorrow or there will be more trouble mate. You’ll be looking for new feet to walk with.
This was the passage described by the Judge as the “stunning venomous phone message”. It was open to him to treat it as suggesting that the appellant’s role was rather of dominance over, than subordination to, Boyden.
The following day Boyden telephoned the appellant at 0933.
CURTIS Hello.
BOYDEN How ya doin?
CURTIS Not too bad.
BOYDENThat’s the story. Hey um, what’s the chance of you comin in?
CURTIS Yeah.
BOYDEN Yeah?
CURTIS Yeah, yeah.
BOYDEN I’ve organised a meeting with those fullas.
CURTIS What time?
BOYDENUm, around ten o’clock. I know it doesn’t give much time.
CURTIS Where abouts?
BOYDENUm, just, I just said ‘I will ring the cunt.’ I said ‘I’ll come down to your work.’ ‘Oh, no, don’t do that’. He’s nervous as fuck. You’re dead right eh. You hit the nail on the head boy.
CURTIS Nah, nah, we’ll just barrel into their work mate.
BOYDEN Yeah, yeah.
CURTIS Nah, I’ll just tell im ‘Give him the car back, you egg.
This passage can be read as suggesting that Boyden was treating the appellant with a degree of deference.
On 28 November 1999 there was recorded a telephone conversation between Boyden and a co-offender Johnson which included the following exchanges.
BOYDEN Right. Gee, you’ll never guess what I did?
JOHNSON What?
BOYDENOh, just (pause) hosed out the bloody ah, hosed out me room there.
JOHNSON Yeah?
BOYDEN Went and hosed one of those... down the drain.
JOHNSON What?
BOYDENOhh, I’ll tell you when you get here but it doesn’t matter.
JOHNSON What, what was it?
BOYDEN Eh?
JOHNSON What was it?
BOYDEN Um.
JOHNSON One of those things of mine?
BOYDEN No. No.
JOHNSON Oh god knows. That is the last thing I needed.
BOYDENYep. Nah, nah, nah, nah. Nah, just one of, um, those (cut over)
JOHNSON Oh, you wasted your arse?
BOYDEN Yeah.
JOHNSON Yeah?
BOYDEN What a wanker!
JOHNSON Did ya?
BOYDEN Oh, just one of them, yeah.
JOHNSON What do ya mean, one of them?
BOYDEN You know how there was, two?
JOHNSON Yeah.
BOYDEN Yeah.
JOHNSON You’re joking?
BOYDEN Nah.
JOHNSON But you’ve still got it all there?
BOYDEN Eh?
JOHNSON You’ve still got it together?
BOYDEN Yeah.
JOHNSONWell we can get it out, it doesn’t matter, it won’t go anywhere.
BOYDENOh yeah, nah, nah, nah, no, yeah no, I actually hosed it out.
JOHNSON What do ya mean?
BOYDENAnd um, (laughs) me bloody, ah tobacco was rolled up in one of those brown paper bags.
JOHNSON Yeah.
BOYDEN I washed that out the door.
JOHNSON You’re joking?
BOYDEN Nah.
JOHNSON Well, at least ... of an oncoming Police car.
BOYDEN Yeah, yeah.
JOHNSON Hang on mate. Well, well, well, you didn’t get it back?
BOYDEN Oh no, I saved a bit.
JOHNSON Oh you’re joking mate.
BOYDEN Nah.
JOHNSON Christ, I tell ya what mate, Brent won’t be happy.
BOYDEN No, that’s what I thought too.
JOHNSON Yeah?
BOYDENI thought, shit, bloody poor old Brent’s bloody. (cut over)
JOHNSON You’re in trouble baby.
BOYDEN Yeah. Yeah. But ah.
This passage can be read as referring to accidental loss of drugs and concern about the appellant’s displeasure. It tends to suggest ascendancy on the appellant’s part and is therefore consistent with the Judge’s conclusion.
On 7 December 1999 there was a conversation between Johnson and Boyden.
JOHNSON And, and, and, what about, have you seen Brent at all?
BOYDEN No I haven’t.
JOHNSON Well, what are we doing about these fifty seven thing?
BOYDEN Well, I don’t know.
JOHNSONBecause I’ve, I saw Scott, I went and saw John last night.
BOYDEN Yeah.
JOHNSONAgain and he’s ready, he’s right up for it mate. He says he’s right up for anything that’s helping us out for Christmas.
BOYDEN Right, right, right. Well, I tell you what um.
JOHNSONAnd I should of explained the situation of how, what’s sort of gone on there and, well, he said, said, just as it is without being biased you know?
BOYDEN Yeah.
JOHNSONAnd he seems to ... , he agrees a deal being done son. whether or not the thing, the money was there at the time from that.
BOYDEN Yeah.
JOHNSON The hundred dollars deposit that he received.
BOYDEN Yeah, it should be (cut over)
JOHNSON Entitles us to the right to buy.
BOYDEN So he (cut over)
BOYDENThe other day when I was talking to the Brent, he said um, (phone buttons pressed) Ya there?
JOHNSON Yeah.
BOYDEN It, it could be on again.’
JOHNSON Well er, yeah, well it is on.
BOYDEN Yeah.
JOHNSONBecause we’ll be going to see, we’re going to and grab old, we’ll go and grab old one arm and give him a bit of a helicopter.
BOYDEN A two arm.
JOHNSON Yeah, give him a bit of a ... .
BOYDEN Spin. Yeah, put him in a spin.
JOHNSON Put him at arm’s length.
BOYDEN Yeah.
Ms Dyhrberg relied on this passage as suggesting that Boyden and a co-accused, Johnson, were referring to the appellant and talking of disciplining him, as might be done to a subordinate. The report that the appellant said “It... could be on again” is however open to the interpretation that the appellant was taking an initiative and is consistent with leadership. There is no solid basis for suggesting that two superiors were treating the appellant as subordinate (on the basis that he was “old one arm” who was to be grabbed and given some kind of physical treatment). While unclear, the passage does not of itself cast doubt on the Judge’s assessment but is consistent with the notion of the appellant’s leadership.
On 11 December 1999 there was a conversation between Boyden and the appellant of which only Boyden’s side is recorded.
BOYDEN How ya doin? (pause)
BOYDEN What are ya up to? (pause)
BOYDENYeah, I will do, yeah, yeah. I’ve got some here. I can only, I can only pay you as much as I’m getting, you know, got eh? (pause)
BOYDEN Yeah. (pause)
BOYDEN Yeah. (pause)
BOYDENRight, well, you know, I’ve got some dough here. I’m sorry about that, I just, only, only ah, told ya what I ... led to believe, you know? (pause)
BOYDEN But um. (pause)
BOYDEN Can’t, you know. I can’t. (pause)
BOYDEN I, yeah. (pause)
BOYDENYeah, right. I’m sorry I don’t mean to do that but I’m saying, as I said, I can only, I can only, that’s what I was led to believe myself and ah, be like that. (pause)
BOYDEN Yeah. (pause)
BOYDENI’m sorry about that but we can catch up now and I haven’t got much but ... . (pause)
BOYDEN Yeah well, nah, I should ... . (pause)
BOYDENWell, I just about, hey, I, I’ve had ah, full intentions but it has never ever come from any angle. I’ve had a cunt of a week in the sense that cunts pay me. No one did. No one did. (pause)
BOYDEN But um, it’s and, and ah. (pause)
BOYDEN Right. (pause)
BOYDEN Right. (pause)
BOYDENI’ve it’s not that I haven’t chased the cunts. I’ve chased them hard. But it’s just out theme. I, if I hadn’t ah, ... , been paid on many ... work it out but um, as I said, if we can catch up now, well, we’re in a position. (pause)
BOYDENI, yeah, I know what you’re talking about Brent. I’m sorry. (pause)
BOYDENWell, I’ve got, I’ve got um, half of it in my pocket so. (pause)
BOYDENYou know, we’ll, if, that’s what I can pay right now anyway. (pause)
BOYDENYou know. I, I, I planned on having a bit more than that but... (pause)
The appellant appears to be putting pressure on Boyden to make payment. The passage is hard to reconcile with Boyden’s being in a position of superiority. It is difficult to visualise how a superior would be in a position of making the apologies for failing to pay a subordinate; rather the passage is consistent with the appellant’s having provided some benefit to Boyden and receiving apologies from Boyden for non payment of a debt.
On 15 December there was a conversation between Johnson and Boyden.
JOHNSONWhat’s, so what’s that, what’s that tile, tiler reckon he’s gonna have to ...?
BOYDEN Oh, it’ll be for Brent to do tonight.
JOHNSON That’s the lot?
BOYDEN Meant to do a kilo.
JOHNSONYeah, Well, why was he, there was five to start with wasn’t there?
BOYDEN Yep.
JOHNSON Huh?
BOYDEN Yeah, you can’t buy... (banging sound)
JOHNSON You what?
BOYDEN ... gonna have em.
JOHNSON What, what happened to the ones that he had?
BOYDENNo, he ... cunts that own them took em back. Probably at the ... .
JOHNSON Cunts own them ...?
BOYDEN Nah. He’s a dumb cunt.
JOHNSON Eh?
BOYDENHe did a deal ... fifteen, didn’t pay for the one, that’s why I had to go up. (pause)
JOHNSON Who. Brent.
BOYDEN Yeah.
JOHNSON Eh? Are you angry?
BOYDEN Nah (movement heard)
...
JOHNSONOh, I don’t give a fuck. I’m gonna transplant him one day and see if ... and after we’ll bury the cunt and we’ll see the bullshit mate. That’s the only way I can see out of it. That’ll be a cunt. I don’t give a fuck if it ends up being a stalemate and Brent pulls in his buddies. Fuck that. Probably that ... bullshit team. Absolute bullshit.
The paragraph appears to deal with drug dealing, the later part with payment of a debt. The appellant is described as being able to involve others. It is consistent with the appellant’s being in a position of authority and therefore with the Judge’s approach.
On 24 December 1999 there was a conversation between Boyden and another co-offender Whyman which included the following passages.
BOYDEN We pay Brent.
WHYMAN We pay Brent, right
BOYDEN Yep.
WHYMAN ... four fifty.
BOYDEN Yep.
This passage also is consistent with the appellant being the receiver of money from Boyden and a co-offender and is consistent with the Judge’s approach.
Overall we are satisfied that the Judge’s appraisal was properly conservative in giving the appellant the benefit of the doubt over the suspicion that he was in fact Boyden’s superior. We consider that it was open to him to sentence on the basis that the appellant’s role was not that of Boyden’s subordinate.
(2) The respective mitigating and aggravating factors
Ms Dyhberg further submitted that the appellant’s sentence failed properly to reflect the respective mitigating and aggravating factors in the cases of Boyden and the appellant. Having regard to the relevant factors in each case “a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice” R v Lawson [1982] 2 NZLR 219, 223. In counsel’s submission there was an unjust disparity in the same sentence being imposed for, on the one hand, the appellant and on the other hand, Boyden who even though he had pleaded guilty, albeit at a late stage, had a record of prior offending which included possession of cannabis seed and manufacturing and dealing in both Class A and Class B drugs. She submitted that in all the circumstances the appellant’s sentence should have been appreciably less than that imposed on Boyden.
Certainly the charges of dealing and manufacturing class A and class B drugs are material exacerbating factors. It is also the case that Boyden’s plea was late. We are, however, satisfied that there were good reasons for the parity of treatment.
Boyden’s pre‑sentence report recorded:
Mr Boyden does not have an extensive history of offending. In the 1980s he appeared on two occasions in the District Court at Dannevirke on minor charges relating to alcohol and cannabis and was fined on each occasion. In 1991 he was fined and disqualified in the District Court at North Shore for driving with excess breath alcohol. In 1995 he appeared in the District Court at Thames and was again fined for possession of cannabis seeds. In October 1997, he appeared in the High Court at Auckland. Following conviction on three charges of dealing and manufacturing class “A” and class “B” drugs he was sentenced to two years imprisonment. He was also sentenced to imprisonment for one month and disqualified from driving for six months in August 2000 for driving while his licence was suspended.
In sentencing Boyden the Judge stated:
You pleaded guilty on the day of arraignment which was the beginning of the trial. In terms of the Jury trial practice note, that is very late in the piece and normally might not attract any particular advantage for you. In this case I made it clear in the dealings I had with Counsel and accused who were involved in pre-trial applications a few weeks before the trial, that I would accept that any plea of guilty made before the trial would be dealt with in this case on a basis that would attract a decent sized credit on sentencing and that the day of arraignment would be the last day.
This is a case in which there was some change in the form of the indictment and therefore the accusations which you were facing and you made your plea at the last minute and defended another charge which as it turns out was a sensible thing to have done. I therefore propose to give you some credit for your plea of guilty on that day although it would not be quite the same as it might have been had it been a little earlier.
Given his prior intimation, the Judge was undoubtedly entitled in the exercise of his discretion to adopt the course of making the significant allowance for Boyden’s plea, albeit belated. The appellant cannot complain that he was treated unfairly because he did not receive a similar allowance; he simply did not qualify for it.
Nor in our view did Boyden’s list, which is to his discredit, and the appellant’s favourable references, which tell the other way, require that the differential between them before deduction for Boyden’s plea should have exceeded six months. The Judge’s approach was well open to him.
We do not uphold the second limb of the disparity argument.
The ground of excessive term
In support of her submission that a starting point of 4½ years was excessive, Ms Dyhrberg’s submissions were directed principally to the proposition that there was insufficient evidence to establish implication by the appellant in serious offending. She accepted the Judge’s classification of the offending as within category 2 of R v Terewi [1999] 3 NZLR 62 paragraph 32:
For smaller operations but representing commercial dealing, starting points up to five years are appropriate, this necessarily must be a broad category to enable sentencers to reflect the many varied circumstances that can arise.
The Judge expressed himself satisfied:
... that although I cannot put confidently an upper limit on the value of these things, they were transactions planned worth thousands of dollars in this case. Nor is it possible to say how much of the drug was involved in the plan which these people were guilty of. There was talk of grams; there was talk of ounces but there was also talk in this case of substances which I am confident from time to time involved cannabis and some other items.
He concluded:
I think the most sensible way to approach it is that the amount of methamphetamine whose purity it is not possible to nail down with any scientific certainty, was methamphetamine worth thousands of dollars.
...
...I do not believe that I can conscientiously say that this was a commercial operation on a substantial scale because of the vagueness of the evidence relating to values and quantities but one can draw the conclusion that nevertheless it was at a serious level because of the numbers of people involved, the number of occasions and the discussions which I listened to about hundreds and thousands of dollars.
Once again the Judge’s approach has been properly conservative in assessing the gravity of the offence as within category 2 of Terewi. It was well open to him to find it to be near the top of that category and therefore to employ the 4½ years starting point that was adopted.
As to mitigation by reason of lack of evidence of any prior involvement of the appellant with drugs, we consider that that was properly taken into account in the 6 months deduction from the starting point. Insofar as personal circumstances can be taken into account, giving full weight to the appellant’s references we do not regard the ultimate term of 4 years as excessive.
Decision
The appeal is accordingly dismissed.
Solicitors
Crown Solicitors, Auckland for Crown
0
0
0