The Queen v Cartwright

[2006] NZCA 207

IN THE COURT OF APPEAL OF NEW ZEALAND

CA462/05

THE QUEEN

v

NICHOLAS JAMES CARTWRIGHT

Hearing:25 July 2006

Court:Glazebrook, Chambers and Robertson JJ

Counsel:S K Ellis for Appellant

K J Beaton for Crown

Judgment:10 August 2006 at 11 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       The appellant, Mr Cartwright, and eleven others faced trial in the High Court at Hamilton between April and August 2005 on a variety of charges under the Misuse of Drugs Act 1975 and the Arms Act 1983.  Others had also been charged out of the same operation and had entered pleas of guilty prior to trial.

[2]       Mr Cartwright was found guilty by the jury in August 2005 on one charge of conspiring to manufacture the class A controlled drug heroin and one charge of conspiring to supply the class B controlled drug morphine sulphate to a prison inmate. 

[3]       On 10 November 2005, Mr Cartwright was sentenced by Priestley J (who had presided at this lengthy trial) to four years’ imprisonment on the first count and two and a half years’ imprisonment on the second, the terms to be served concurrently.

[4]       Mr Cartwright appealed against both conviction and sentence but prior to the appeal hearing he abandoned the appeal against conviction.

[5]       The appeal against sentence is advanced on the grounds that the sentences imposed were manifestly excessive and that there was unjustifiable disparity between the sentences imposed upon Mr Cartwright and those imposed on others for associated offending.

[6]       Nine of his co-accused were sentenced on 14 October 2005, one on 21 October 2005, and another on 10 November 2005, as was Mr Cartwright.

The factual circumstances

[7]       Inasmuch as the facts were of relevance on the sentencing, the Judge said:

[3]       The major focus of that drug trial, of which you were one of a number of accused, was on conspiracies to manufacture and supply methamphetamine.  Although clearly you were caught up in that conspiracy you were not convicted of any methamphetamine related counts.  Mr Buckle has gone to some lengths to point out to me that I should not let my treatment of you today be coloured by the fact that you were an associate both of Richard McFall who is clearly the ring leader of the methamphetamine conspiracies, and other occupants of Nikau Place.

[4]       Both charges of which you were convicted are heroin focused.  As I have said when sentencing other prisoners, there is clear and indeed undisputed evidence that the occupants of 18 Nikau Place would use heroin, which they manufactured themselves, probably inside their residence, to counteract some of the addictive side effects of their methamphetamine use, using heroin in effect as a “downer”, to come down from the euphoric effects of “P” consumption.

[5]       You were, however, one of the conspirators who was involved in a misguided attempt by Mrs McFall to get a stash of drugs to her husband when he was imprisoned in Waikeria.

[6]       Returning to the focus urged on me by Mr Buckle, your counsel, I consider he is right that I should sentence you solely on the basis of your involvement in the heroin conspiracy and not have regard at all to the other criminal offending which was going on in 18 Nikau Place with whose occupants you were associated.

[7]       Turning to the details of your offending it is clear from the evidence I have heard, which was before the jury, that in January 2003 there were one or two text messages between you and Mr McFall.  It is speculative, however, as to exactly what those text messages were dealing with.  When we move, however, to the period of May/June 2003 when telephone traffic involving your co-offenders was being intercepted and when there were interception devices placed in 18 Nikau Place, a clear picture emerges that you were regarded as being a reliable source to provide both morphine sulphate tablets and acetic anhydride which were necessary precursor drugs for the manufacture of heroin.

[8]       The Crown has submitted to me that it is probably during the course of this period you provided somewhere between 100-150 100mg morphine sulphate tablets.  And dealing with the second count you face, certainly you offered to Mrs McFall to provide 10 grey morphine sulphate tablets which presumably she hoped to include in her illicit stash.

[9]       That said, and as is always the case in conspiracy charges, there is no precise evidence of volumes or values.  The basis on which I will sentence you is that for a period of at least two months you provided, when it was required, the two heroin related precursor drugs I have mentioned.  Your supply of those drugs, or certainly your involvement in the conspiracy, was regular and steady and it is clear that you were regarded by the McFall family as being a reliable source of precursor drugs.  It is significant too that Mrs McFall, when she was searching around for ways and means to smuggle a stash to her husband in jail, called unhesitatingly on you to provide her with the morphine sulphate tablets she was seeking.

The basis of the appeal

[8]       The appeal was advanced on the basis that the Judge’s starting point in respect of both conspiracies was in error and manifestly excessive and that there was disparity between the sentence imposed on Mr Cartwright and other accused.

[9]       In respect of the conspiracy to supply heroin, the thrust of Mr Ellis’ argument was that Mr Cartwright had had no choice but to agree to supply the morphine sulphate.  Mr Cartwright met Mr McFall who was undoubtedly the king-pin in this entire operation.  In an innocent way he agreed to undertake repairs on Mr McFall’s vehicle.  In the course of this damage was caused and Mr Cartwright had a debt owing to Mr McFall of some $1,400.00.  Mr McFall indicated that he was willing to allow Mr Cartwright to meet this debt by sourcing morphine.  Mr Cartwright said he felt intimidated and so agreed to this.

[10]     By reference to R v Wallace [1997] 3 NZLR 159 (CA) and R v Arthur [2005] 3 NZLR 739 (CA), counsel submitted that there was no commerciality and the Judge had applied a starting point which was far too high.

Crown response

[11]     Ms Beaton argued that the overall sentence was neither excessive, wrong in principle or disparate with the outcomes for the co-accused.  She submitted that a thorough evaluation had been undertaken by Priestley J who was in the best position to assess degrees of culpability.

The starting point

[12]     In reaching his effective sentence, Priestley J referred to the then recent decision of this Court in Arthur.  References to that case and the subsequent decision of this Court in R v Fatu [2006] 2 NZLR 72 (CA) were at the heart of the High Court sentencing, the submissions of Mr Ellis and the response by the Crown.

[13]     This approach is understandable because the other co-accused caught by the operation were convicted on methamphetamine charges.  Mr Cartwright was not and so the Arthur/Fatu guideline judgments are not relevant.

[14]     This Court noted in R v Stanaway [1997] 3 NZLR 129 (CA) that manufacturing convictions are not necessarily more serious than convictions for supply and so in the absence of a heroin guideline judgment we look at conspiracy cases involving heroin generally.

[15]     As with most drug related offending, the level of commerciality is a key aspect in the sentencing of conspiracy to manufacture heroin.  In R v Thompson CA233/91 20 November 1991, a sentence was reduced from three years to two years in respect of possession of 60mg of morphine sulphate where it was accepted that there was a lack of any commercial aspect to a small operation manufacturer who was making heroin for personal use only.

[16]     Subsequently in R v Moroney  & Ors CA448/92 26 May 1993 a police operation resulted in the conviction of a number of offenders on manufacture, supply and conspiracy to manufacture and supply charges.  It involved a heroin manufacturing operation that produced between 150 to 200g of heroin over the course of a year.  This Court affirmed a sentence of six years ten months (a seven year starting point) for the principal offender.  The Court stated generally that:

(a)three and a half to four and a half years’ imprisonment was appropriate for co-accused who were involved in both manufacturing and selling;

(b)two to three years’ imprisonment was appropriate for those who offered “useful assistance”; and

(c)18 months’ imprisonment was appropriate for the loyal drug users who gave limited assistance.

[17]     Of particular relevance to the circumstances of the present case, is the Court’s consideration of the appellants Mr Ralph and Mr Milich.  Mr Ralph was convicted of conspiracy to manufacture heroin and conspiracy to supply.  He assisted the operation by collecting the panadeine tablets used to make the heroin.  He also helped in the overall organisation and sold small quantities.  He was described as one of the lieutenants of the operation.  This Court confirmed his sentence of three years ten months.  Mr Milich was convicted on conspiracy to supply.  Mr Milich became involved in the manufacturing operation late and sold only small amounts of heroin.  The High Court took as a starting point for sentencing Mr Milich three and a half years, reducing the sentence to two years two months because of a guilty plea.  This Court reduced the sentence imposed finding that a starting point of two and a half years was appropriate.

[18]     In R v Briggs CA333/92 26 February 1993 this Court confirmed a sentence of five years’ imprisonment on one count of conspiracy to manufacture heroin and one of conspiracy to supply.  The appellant was responsible for sourcing large quantities of codeine based tablets for the manufacture of heroin.  The appellant was a drug addict who was “paid” in heroin which was for his and his de facto partner’s personal use.  The supply charges were solely based on the supply to his partner.  The appellant entered a guilty plea on the opening day of the trial.  This Court held that the five year sentence was not excessive given that, while the appellant was not making any money out of the operation, he knew that excess heroin was being manufactured that would be sold for a profit.  This element of commerciality was important in the Court’s finding.

[19]     The decisions on conspiracy to supply heroin demonstrate very varied sentences depending on individual circumstances.  Of interest to this appeal is R v Jacombs HC AK CR12002-004-206137 11 March 2005 where Priestley J imposed a sentence of two and a half years’ imprisonment where there had been an agreement to supply heroin to a prison inmate and preliminary steps had been taken towards such supply.

[20]     More than twenty years ago, this Court provided a rough guideline for sentencing for manufacturing of morphine and heroin in R v Latta [1985] 2 NZLR 504 when it said:

(a)       normally the penalty would be imprisonment;

(b)six months to one year’s imprisonment was appropriate for a first offender making small quantities for their own personal use;

(c)several years for greater quantities or repeat offenders; and

(d)a very heavy sentence for large scale manufacture for distribution.

[21]     Although that was a case of manufacturing and not conspiracy to manufacture, the approach has general application.

The circumstances of this appeal

[22]     In the present instance, it appears that the heroin was used personally by a number of people involved in the methamphetamine manufacturing operation to counteract some of the addictive side effects of their methamphetamine use.  The heroin was not sold, but distributed among them.  This does not alter the fact that in Mr Cartwright’s case there was a commercial aspect to his offending.  He provided morphine sulphate tablets to the group in order to repay a debt he owed to Mr McFall.  This commercial element raises his culpability above the lowest sentencing levels.

[23]     Priestley J found Mr Cartwright  had provided 100-150 100mg morphine sulphate tablets which is considerably more than there were in Thompson where a two year sentence was imposed after a plea of guilty. 

[24]     We are left with no doubt that, taken on its own, a sentence of three years’ imprisonment could not have been challenged as the minimum to reflect Mr Cartwright’s culpability on the charge of conspiring to manufacture heroin.

[25]     However, the conspiracy to manufacture charge did not stand alone.  There was the additional offending which involved a deal to supply drugs to Mr McFall at the time he was in prison.  This clearly called for a deterrent sentence.  Two and a half years’ imprisonment for that matter alone would equally have been beyond challenge.  It was to be condemned in the strongest terms.

[26]     The Judge was obliged to consider the totality principle and he reached the view, having regard to some mitigating circumstances (not including a plea but the possibility of reform) that an overall sentence of four years should be imposed.

[27]     In terms of s 85(4) of the Sentencing Act 2002 the Judge was required, when imposing concurrent sentences, to impose on the most serious offence a lead sentence appropriate for the totality of the offending.  That is what he did.  We are left with no doubt that the overall effective sentence of four years with two and a half years concurrently was within the available sentencing discretion.  This aspect of the challenge is unsustainable.

Disparity

[28]     The second aspect of the appeal related to unjustifiable disparity as described by this Court in R v Lawson [1982] 2 NZLR 219.

[29]     Mr Ellis’ argument that the sentence imposed for the conspiracy to manufacture charge did not reflect parity between Mr Cartwright and the principal offenders is wrong.  Counsel sought to compare Mr Cartwright’s conspiracy to manufacture sentence with the conspiracy sentences imposed on the principal offenders.  On the conspiracy charge, Mr Cartwright received four years’ imprisonment, whereas Mr McFall received five years and Mrs McFall three years.

[30]     Mr Ellis’ argument is unconvincing on two counts.  First, it is not appropriate to focus on one aspect of the McFalls’ offending when undertaking a disparity analysis.  The overall offending and the total sentence imposed must be considered.  Mr McFall received a total sentence of eleven and a half years.   Of the eleven offenders involved in this trial, Mr Cartwright was given the shortest sentence except for three co-accused, two of whom entered guilty pleas.  That is consistent with the Judge’s finding and the submission as to his place in the overall situation.

[31]     Secondly, as we noted earlier, Mr Cartwright’s four year sentence for conspiracy to manufacture heroin was a totality sentence which incorporated an allowance for the completely separate offending of conspiracy to supply morphine sulphate tablets to Mr McFall in Waikeria.

[32]     As far as the comparison with Mrs McFall is concerned on the conspiracy to supply drugs to a prison inmate, although the conspiracy may have been Mrs McFall’s idea, Mr Cartwright had indicated a clear willingness to source the necessary drugs.  His degree of culpability cannot be minimised.

[33]     This may have been a man who unfortunately was caught up with people who were much more sophisticated in criminal activities and the drug world than he was.  However, an objective and informed bystander would not think that anything had gone wrong in the way in which Mr Cartwright was dealt with.

Result

[34]     The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington