The Queen v Bryan Gordon Slight

[2001] NZCA 35

IN THE COURT OF APPEAL OF NEW ZEALAND CA467/00

THE QUEEN

V

BRYAN GORDON SLIGHT

Hearing:	26 February 2001 (at Auckland)
Coram:	Blanchard J Anderson J Paterson J
Appearances:	L C Langridge for Appellant M R Heron for Crown
Judgment:	26 February 2001

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

1. This is an appeal against sentences totalling 9½ years imprisonment imposed by the High Court on 27 October 2000.  The ground of appeal is that, overall, the sentences were manifestly excessive.  The essential submission on behalf of the appellant is that the Judge made insufficient allowance for pleas of guilty.

2. The appellant had pleaded guilty on 29 September 2000 to 13 counts alleging serious drug offences, including conspiracy to supply the Class A drug LSD; conspiracy to supply the Class B drugs morphine, methamphetamine, and MDMA (Ecstasy); as well as a number of counts of supplying such drugs.  He also pleaded guilty to conspiring to manufacture methamphetamine, attempting to procure heroin, and sundry counts relating to cannabis.  The Crown offered no evidence on a 14^th count relating to the supply of MDMA, and the appellant was discharged thereon.  For all the drug counts he was sentenced to nine years imprisonment and on a count of unlawful possession of a pistol he was sentenced to six months cumulative imprisonment.

3. It is unnecessary to traverse the appellant’s offending in detail but it was extensive in time and scope.  The Judge’s starting point for the drug crimes of 10½ years, with which no exception is taken on behalf of the appellant, appropriately reflects the degree of criminality.  The Judge allowed a credit of 1½ years for the guilty pleas.  At the same time as he sentenced the appellant the Judge sentenced three other men involved in various facets of the appellant’s activity.  They had also pleaded guilty although a little later than the appellant had.  One, James Kendrick, received a credit of one year’s reduction from a starting point of five years for his plea of guilty.  Another, Adrian Bennett, received a reduction of nine months from a starting point of 4½ years.  Another, Mark Paton, received a reduction of six months from a starting point of 2½ years imprisonment.

4. The reduction in respect of the appellant’s sentence amounted to 14%.  In relation to Kendrick, Bennett and Paton the percentages are, respectively, 20, 17 and 20.  Counsel for the appellant submits that there is an incongruity in the greater percentage reductions applied to offenders who pleaded guilty later than the appellant.  Counsel also submits that the reduction allowed inadequately reflects the policy justifications for reducing sentences for pleas of guilty.

5. Those justifications include the indications for rehabilitation implied by acceptance of fault and expression of contrition; the saving of time, trouble, expense and inconvenience to the Courts, law enforcement agencies, and citizens who might be called to testify; and where offending is against personal victims, the avoidance of additional and continuing trauma through the need to give evidence and through delays in closure of the criminal process.

6. In this case the appellant showed at the outset a sense of realism which then, regrettably, lapsed for a year.  He was arrested on 18 August 1999 and made a full videotaped confession as to his involvement in drug distribution.  Six charges were laid that day in the Tauranga District Court.  As is not unusual in extensive police operations involving intercepted communications, further charges were anticipated and were subsequently laid.  By 15 October 1999 18 charges in all had been laid in the Tauranga District Court and discussions took place between the Crown and the appellant’s then counsel concerning the scope of the charges.  A deposition hearing on a hand-up basis occurred on 20 April 2000.  An indictment was presented at the first callover in the High Court early in June.  As previously mentioned, the indictment contained 14 of the original 18 charges.  By this time appellant’s counsel had withdrawn.  The appellant was subsequently represented by another appointed counsel, who is not counsel on this appeal.

7. The police operation involved 19 accused and not unexpectedly there were a large number of pre-trial applications by some of them.  A lengthy trial was scheduled to take place in Rotorua in about November 2000 but on 29 September, following the appellant’s pleas of guilty, the time for that hearing was reduced.

8. Counsel for the appellant submitted that inadequate allowance had been made for the early confession of fault and that some of the delay was explicable on the basis of the appellant disputing one of the 14 counts in the indictment, which count the Crown elected not to proceed with.

9. We are bound to remark that if the appellant decided not to plead guilty to the 13 other counts at an earlier stage in order to bargain away the 14^th count, then he made a serious error of judgment.  The disputed count would have been of no real consequence in terms of a sentence reflecting total criminality.  Yet the lengthy delay in pleading guilty to the other 13 counts was a predictable and justifiable barrier to a more palpable discount.  The result must be a perception of intransigence and, possibly, of attempted manipulation of the prosecution process for some tactical advantage. 

10. There is no persuasive reason why this appellant could not have pleaded guilty at least by the end of 1999 or early 2000, when the charges were known and counsel would have had the opportunity sufficiently to examine the evidence in the light of the appellant’s free confession.  The Judge noted the lateness of the pleas but nevertheless allowed a discount of real value.  We are not persuaded that the percentage of sentence discounted in the case of the three co-offenders earlier named justifies intervention by the Court on this appeal.  The fact that those three pleaded between 10-18 days later is of little moment when the overall delay in every case is examined.  The Judge plainly adjusted the discounts to make a broad, appreciable allowance in the light of the starting points.  In the case of this appellant he allowed 1½ years; in the other cases there was a reducing scale from one year, through nine months, down to six months.  The logic of the process is more compelling to our minds than a mathematical comparison.

11. It has not escaped the notice of Judges that some offenders, particularly those charged with multiple offences, including drug crimes, deprive themselves of significant discounts by withholding appropriate pleas of guilty for an unreasonable period.  Whether it is because they cannot bring themselves to face up to reality or because they seek some perceived tactical advantage, they like the present appellant do themselves no favour by going slow.  If the appellant had been as ready and realistic with his plea as he was with his confession he would likely have received a discount of at least 2½, instead of 1½ years.

12. The plea though ultimately late nevertheless deserved and received clear recognition.  We are not persuaded the allowance of 18 months was inadequate, nor that the sentence was for any other reason manifestly excessive.  The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland