The Queen v Gordon-Smith

[2008] NZCA 33

IN THE COURT OF APPEAL OF NEW ZEALAND

CA648/07
[2008] NZCA 33

THE QUEEN

v

DEBORAH JAN GORDON-SMITH

Hearing:14 February 2008

Court:William Young  P, Chambers and Robertson JJ

Counsel:S T Bailey and A J Bailey for Appellant

B M Stanaway for Crown

Judgment:27 February 2008 at 3 pm

JUDGMENT OF THE COURT

A        AN EXTENSION OF TIME FOR APPEALING IS GRANTED.

B        The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       The appellant was found guilty at trial of:

(a)conspiracy to supply a class A controlled drug, namely methamphetamine;

(b)supplying a class B controlled drug, namely ecstasy;

(c)possession of ecstasy for supply; and

(d)supplying a class C controlled drug, namely cannabis.

[2]       On the conspiracy to supply methamphetamine, she was sentenced to six years’ imprisonment.  There was a cumulative two years’ imprisonment for the supply of ecstasy.  Ms Gordon-Smith was also sentenced to two years’ imprisonment on each of the other two counts, but these terms were concurrent.  The effective sentence was eight years’ imprisonment.

[3]       The heart of this appeal was whether a total sentence of eight years for all the offending was within the range available and properly reflective of the appellant’s culpability.

[4]       The application to appeal was filed out of time.  The appellant was one of a number who were convicted at trial.  Thereafter she had a change of counsel.  Other issues arising out of the trial were in a timely way before the Court.  There was no opposition to leave being granted and the merits of the matter were accordingly considered.

Background

[5]       Fogarty J said about the facts:

[3]       I am quite satisfied on the evidence I heard while presiding over the trial that you were making a large number of purchases during these deliveries from 13 October through down to at least the end of November.  In that sense I have no doubt that the jury came to the correct decision.  The difficulty that this sentencing poses, as you have heard from the exchanges I have had with counsel, is to try to work out reliably how much methamphetamine you were purchasing for supply.  I have to take into account that although there were numerous meetings between you and Mr Sui we cannot assume that each meeting was a drug purchase.  Second, by and large, there is no direct evidence as to how much you were buying each time and then I need to factor in your own usage as a drug addict on methamphetamine.

[6]       It is common ground that the appellant was receiving methamphetamine from suppliers who were based in Christchurch (they themselves having been supplied with methamphetamine from others) and that she was on-selling methamphetamine to mid-level dealers and end users directly.

The correct starting point

[7]       Mr Bailey noted the decision of this Court in R v Fatu [2006] 2 NZLR 72 with respect to the supply of methamphetamine and emphasised the subsequent gloss thereon in R v Te Rure [2007] NZCA 305 with regard to conspiracy, where the Court noted (at [25] – [27]):

[25]     It has been accepted by this Court that a reduction of these levels is appropriate where an offender faces a conspiracy charge rather than one of manufacturing methamphetamine (Bryan) at [57]).  This is consistent with the different maximum penalties for those offences, and with the fact that planning something illegal is logically less serious than actually doing it.  However, it is equally logical that, the closer a conspiracy comes to execution, the closer it becomes in seriousness to the actual illegal act being planned.

[26]     In Fatu, this Court said that, as a matter of principle, the manufacture of methamphetamine necessarily involved criminality at two levels, the possession of precursor equipment and the use of that equipment to manufacture methamphetamine (at [41]). Where the charge is conspiracy to manufacture methamphetamine, there is a different kind of criminality involved; the making of such an agreement is itself inimical to the public good, whether it goes further or not (R v Henry [1997] 1 NZLR 151 at 152).

[27]     Where a conspiracy to manufacture methamphetamine proceeds no further than a theoretical plan, only the third level of criminality requires to be addressed in sentencing.  In such cases, offenders should expect a substantial reduction of the Fatu sentencing levels.  However, where a plan has been developed to the point of action, the first two levels of criminality must be addressed as well.  Where all three levels of criminality are present, offenders should expect a very small discount indeed (see R v Emirali CA177/06 12 December 2006 at [35]).  Sentencing judges should continue to be guided by the proviso that this Court articulated in Fatu (at [40]) that:

As a matter of principle, an offender should only be sentenced in relation to offending which he or she admits or which the Crown can prove.  It is not right for an offender to be sentenced on the basis of offending that he or she would or could have committed had the police not intervened.  On the other hand, the Courts must take a realistic view of the dynamics of this particular form of offending.  Those who gear up to manufacture methamphetamine are not likely to be content with a single "cook".  As was recognised in Worth v R [2001] WASCA 303 at para [50], the “practical potential of the operation” must be a relevant consideration.

[8]       The appellant contended that Fogarty J had been in error in not discounting from the Fatu sentencing bands when he was dealing with a conspiracy.

[9]       The Crown, in response, noted that, even if the exercise had been undertaken, the actual sentence of six years’ imprisonment was within the relevant band, as only a very small discount was warranted in the circumstances of this case.

[10]     We agree that nothing turns on this part of the argument.  Te Rure was delivered after this sentencing, but in any event this was not a conspiracy which was in its infancy, but a deal involving Ms Gordon-Smith and others which had advanced far beyond that.  It is one of those cases where, on the factual basis, any discount would have been quite minimal and we are unable to conclude that any injustice arises from the way the exercise was undertaken.

The total sentence

[11]     The more substantial argument was whether there should have been an uplift as a result of the other offending.

[12]     The Crown submitted that, although the Judge had not adopted the conventional approach of a lead sentence with concurrent sentences (R v Levett CA437/05 9 March 2006), the overall sentence imposed was not manifestly excessive and was clearly within the Judge’s sentencing discretion.  Fogarty J’s assessment was made after hearing nearly a month of evidence, including hearing relevant intercepted conversations and viewing the text messages.  He was entitled to conclude that the appellant was a commercial supplier of all classes of drugs over a number of months.

[13]     The facts of the additional offending were described by the Judge thus at [14]:

In respect of ecstasy you were found in possession of 13 ecstasy pills and a proven supply of three ecstasy pills.  The proven supply of three may well under-estimate the supply.  I, however, applying s 24 cannot sentence otherwise.  So I approach the conviction of supplying ecstasy, relative to the conspiracy supply of methamphetamine, as lower level offending.  The starting point is under five years and I would take the starting point for this offending of two years.  In respect of the possession of the Class B controlled drug for supply I am not sure that it is wise to assume that the 13 ecstasy pills were all for supply but similarly I would take a starting point of two years.  Then in respect of the cannabis, a relatively small amount of cannabis was found in your possession and I would take a starting point of two years.

[14]     Fogarty J imposed a cumulative sentence for the additional offending because the appellant was not just a methamphetamine dealer but also a supplier of other drugs.

[15]     Mr Bailey stressed that the six years for the lead offence was itself stern and that there was no greater culpability arising from the small quantities of other drugs which were found, particularly in light of the appellant’s own personal difficulties.  He argued that an uplift of perhaps six months was all that could be justified above the initial assessment of six years.

Discussion

[16]     Drawing fine comparisons in cases of this sort is never easy or particularly helpful, although we accept that the effective sentence of eight years is at the higher end of the available range. However, in light of recent decisions of this Court (such as R v Anslow CA182/05 18 November 2005; R v Shirinov CA385/05 17 May 2006 and R v Richardson CA85/06 16 August 2006), it is clear that this sentence is not manifestly excessive.

[17]     The critical question is whether the effective sentence (however constructed) properly reflects the totality of the offending and the circumstances of the offender: R v Xie CA397/05 8 August 2006.

[18]     Before applying the totality principle, the Judge noted that the individual offences could properly have attracted a sentence of 12 years which he was satisfied was far too long.  However, he concluded that the appellant was not just a supplier of ‘P’ but a supplier of other drugs.  Mr Bailey properly pointed out that his client was not convicted of being a supplier of ‘P’ but was involved in a conspiracy, although little could turn on that distinction on the particular facts of this case.

[19]     Ms Gordon-Smith was involved in a significant commercial operation and, as the Crown submitted, eight years for the combined offending, however it was arrived at, was within the Judge’s sentencing discretion.

[20]     Fogarty J held that there were not any significant mitigating factors and that is not challenged.  The appellant is a drug addict.  Although there evidently had been some consideration of the possibility of an arrangement being made with the Crown, that came to nothing.  Consequently, the generous discounts which became available to the co-accused who entered guilty pleas were not available to the appellant.

[21]     We acknowledge that, as the mother of two young children, there are added problems arising, but these are amongst the sad consequences which flow when parents involve themselves in serious drug offending.

Result

[22]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington