The Queen v Graeme Lewis Williams

IN THE COURT OF APPEAL OF NEW ZEALAND	CA 91/00
CA 79/00
CA 90/00

THE QUEEN

GRAEME LEWIS WILLIAMS

ROBERT O’NEILL

KEVIN HOLLINGSWORTH

Hearing:	24 May 2000 (at Auckland)
Coram:	Henry J Robertson J Cartwright J
Appearances:	K Raftery for Crown L M Bidois for Williams and Hollingsworth S Lance for O’Neill
Judgment:	31 May 2000

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

The three appellants were among a substantial group of people charged in December 1998 with a variety of offences arising from a police drug operation code name “Operation Twelve”. Eventually ten people faced trial in the High Court in Rotorua in February 2000 on charges involving both class A and class C controlled drugs.
Shortly after the trial began Mr Williams pleaded guilty to one charge of conspiracy to supply a class C controlled drug on which he was sentenced to 4 years imprisonment, and further charges of selling cannabis and possession of cannabis for supply on each of which he was sentenced to 3 years imprisonment. He appeals against sentence in respect of the 4 years imprisonment on the charge of conspiracy only on the basis that it was manifestly excessive and there was unjustifiable disparity with sentences imposed on other offenders.
Mr O’Neill was convicted by the jury on one charge of conspiracy to supply cannabis on which he was sentenced to concurrent terms of 3 years imprisonment. Concurrent sentences were imposed in respect of his conviction on two separate charges of being in possession of cannabis for sale. He appeals against those sentences upon the basis that they are manifestly excessive, that the approach to sentencing adopted was not supported by the evidence and there is unjustifiable disparity with sentences imposed on co-offenders.
During trial Mr Hollingsworth pleaded guilty to a charge of conspiracy to supply cannabis. He was sentenced to 2 years imprisonment, suspended for 2 years and 12 months periodic detention. He appeals against that sentence on the grounds that it is manifestly excessive and there is unjustifiable disparity with sentences imposed on co-offenders.
There is some uncertainty about the factual basis upon which the various appellants were sentenced.
In respect of Mr Williams and Mr Hollingsworth who each eventually pleaded guilty, there is included in the case of appeal, documents entitled summary of facts. We were told that these were handed to counsel at the beginning of the sentencing process but were not conceded by counsel as the basis of their guilty pleas. In respect of Mr O’Neill there is a similar document which also was not accepted in its entirety. It is not to be however overlooked that the sentencing Judge had presided at a three week trial and was fully conversant with the evidence available.

Williams

As a result of having heard submissions of counsel before us some salient features about the facts can be extracted. First, there is no question but that Mr Williams on the evidence, and as noted by the Judge in sentencing, was the prime mover in the scheme. The conspiracy to which he pleaded guilty extended over some weeks during which there was interception of private conversations, monitoring and surveillance. When the police executed a search warrant at his residence, small amounts of cannabis were located and large amounts of cash. The police also found in Mr Williams’ lock-up in Geddes Road a number of snap-lock plastic bags together with scales and three large bags of cannabis containing a total of 1312 grams. When he was stopped in his car on the same day as he returned from Auckland, found in his car were a set of scales, 11 pre-packaged ounce bags of cannabis with a total weight of 290 grams, $2500 in cash and other drugs.
Mr Williams told the police that he was involved in dealing small quantities of cannabis but that was not accepted by the Judge who said :
The operation had been obviously run on a commercial basis. You claimed to be selling to friends who were already cannabis users, thus endeavouring to minimise your criminality.   My only comment is, you have a very wide circle of friends who seem to call ever so regularly on the telephone or at your place of business.
I do not accept the submissions made by your counsel.   The scale of the operation covered not just Rotorua in the main but also partly into Auckland, so it was not a minor matter and there is also to be taken into account your previous convictions.
On your behalf, you have acknowledged your guilt right from the commencement by pleading guilty to the various charges you faced. I accept, for the purposes of my sentencing you were therefore pleading guilty and really the trial was brought on because the Crown proceeded on the other counts on which there could be no agreement.
Your involvement in this matter in my view justifies a term of imprisonment of 5 years but in view of your plea of guilty I intend to reduce that to 4 years. You are accordingly sentenced to 4 years imprisonment in respect of the conspiracy count.   On the other counts you will be sentenced to 3 years imprisonment, the sentences to be served concurrently, so that the total is 4 years imprisonment.
A critical thrust in the submissions on behalf of Mr Williams was that the starting point of 5 years for a conspiracy on what counsel described as “the lead sentence” was unsustainable and that in any event the substantive dealing offences on which he was sentenced to 3 years imprisonment were more serious matters. It was argued that a 3 year net sentence should have been imposed concurrently in respect of all three matters.
A number of decisions were referred to of this Court and in the High Court where “lead” sentences have been imposed and others where concurrent sentences have been imposed in respect of various associated offences.
We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. The issue is what is an appropriate total sentence for the various charges which have been admitted or proved. How that is constructed in the particular circumstances is a matter of individual discretion and assessment. Sometimes there is advantage in imposing cumulative sentences on some or all of the charges, whereas others are more appropriately dealt with by one major sentence which subsumes all matters, with concurrent sentences imposed. In any event, what is clear is that here the Judge did assess the total offending as requiring a 4 year sentence. The individual analysis relied upon by counsel does not represent the Judge’s approach.
The question therefore is whether a starting point of 5 years for the total offending could be said to be outside of the range. In our view that could not be the case. Mr Williams was the principal offender in a relatively large scale commercial enterprise. He made a number of journeys out of Rotorua to stock up on his supply. He had a steady stream of callers in respect of whom the inevitable inference was that this was part of his trading activity. He had been involved actively in the business for some period of time. He was in concert with others in planning and continuing the arrangement. He had stock on hand.
He is a mature married man in his mid 50’s who has a substantial previous history of drug dealing including a 6 year term of imprisonment for importing LSD. We are of the view that a starting point in total of any less than 5 years would have been inadequate. The only mitigation was his plea of guilty (which was certainly not early) and in our judgment the 4 year sentence is unassailable.
It was also argued that there was unjustifiable and gross disparity between the sentence imposed upon him and the sentence of 2 years imprisonment, suspended for 2 years, coupled with 12 months periodic detention which was imposed on a co-offender Mr Farnworth in respect of which the Solicitor General has not sought to appeal.
Mr Bidois accepted that Mr Williams’ culpability was greater than Mr Farnworth’s, but submitted that a sentence of imprisonment of double the length was not justified and that the matter was exacerbated when one took into account the fact that Mr Farnworth’s term was suspended. Against that however it was acknowledged that 12 months periodic detention is a very substantial sentence in and of itself.
The approach to disparity remains that enunciated by this Court in R v Lawson [1982] 2 NZLR 219 where it was said :
... a marked difference in the sentence imposed on co-offenders and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly.
We are satisfied that because of the personal circumstances of Mr Farnworth he was extraordinarily fortunate. The fact that a co-offender has received what could be said to be an unduly lenient sentence is not necessarily a ground for interfering with another longer sentence which was clearly justified in all the circumstances (R v Rameka [1973] 2 NZLR 592.)
Although Mr Farnworth as the first lieutenant was fortunate that the Judge extended to him the leniency he did because of his ill health and impending marriage (particularly in light of the fact that he had a previous serious drug peddling offence) we are satisfied that the involvement of each enabled some differentiation to be made, and the difference is explicable because the Judge was persuaded to adopt a merciful approach to Mr Farnworth.
In respect of him the Judge said :
You have a previous conviction for involvement in drugs. You were sentenced to 11 years plus in 1990 for dealing in heroin. I see you were released from that sentence in February 1996. In this particular operation, you kept in pretty close contact with Mr Williams. I do not suggest for a moment you were the “guiding light” behind it all and the tape recordings which have been spoken about show almost a sense of gullibility on your behalf. Quite frankly I think you are lacking in intelligence. I think you should not have become involved in this.
I have listened to everything your counsel has said. He pointed out you have been in custody now for 5 months. I have a lot of trouble knowing what to do with you. In particular I note the probation officer, in response to previous sentences, speaks very highly of you and refers to you being very polite and enjoying a good relationship with you. I must confess your conduct in Court was very polite and worthy of note. You are not well. You have a physical problem. I am going to take a risk with you. I am aware the recommendation is for a suspended term of imprisonment coupled with periodic detention. The Crown suggests this is not a case for suspension. I think overall, having regard to the circumstances of the case, your age and, I hope, your more positive home life because I see the report talks about you thinking of marriage which is something I thoroughly recommend, I am going to sentence you to 2 years imprisonment which I will suspend for 2 years, coupled with 12 months periodic detention to be served at the Rotorua Centre. You will therefore report to the Rotorua Centre this coming Saturday. You can consider yourself pretty lucky. If you break the terms of that suspended sentence you will be back in front of me and I can assure you, you will go to prison.
We are not satisfied that there is an unjustifiable disparity arising in these circumstances.

O’Neill

In respect of Mr O’Neill it is submitted that on the evidence his involvement was much more peripheral than the Judge appeared to consider. The Judge noted :
In respect of Mr O’Neill the Judge’s remarks on sentencing are economical, but he noted :
I am basically satisfied you played a major role in this operation. You were there, so far as the evidence is concerned, at the beginning, when you were in Rotorua. You had apparently moved to Rotorua during the course of these operations living in rented accommodation and had premises which purported to be a panel-beating business.

And further :

As I have indicated I am satisfied you played a major part in this and you were right up with the play at the beginning and at the end. Your counsel has suggested you are not a long term resident in Rotorua. The important thing is you were in Rotorua at the ‘heat of the season’ when the goings-on took place. True you were not always in Mr Williams’ vehicle and true, not a great amount of cannabis was found in your possession. I accept also your previous offences were not for drug dealing. You have spent 4 months in custody already. You are not going to get a discount. You did not plead guilty – not that I am going to penalise you for that. You will be sentenced to 3 years imprisonment on each charge, the terms to be concurrent.

For Mr O’Neill it was stressed that he had only returned to live in Rotorua after the commencement of the network. The two possession for supply charges arose from 69 grams found in his Subaru utility and 43 grams found down the front of his trousers when he was apprehended both on the basis of the presumption. There was a rejection of his contention that all the material was for his own use. It was said that the total value was only about $900 and that his involvement was less than that of Mr Farnworth. He did not figure largely in the intercepted conversations and some of these were quite innocuous. Although he had travelled north with Mr Williams, there were innocent explanations available and he was not with him on occasions in which criminal conduct was established.
Counsel noted that although he was initially charged in respect of the large stash of cannabis plant material found at the lock-up in Geddes Road, he was acquitted on that charge after the Judge had directed that there was no evidence of his having any knowledge or involvement with it. Compared to Mr Williams and Mr Farnworth who both had serious previous drug histories, his previous offending involved only simple possession charges for which he had been fined $200 or $100.
It was accordingly argued first that there was no evidential foundation for the Judge’s conclusion that Mr O’Neill had played a major role in the operation and to hold it to be so was inconsistent with the Crown theory throughout that the “hub” of the conspiracy was Mr and Mrs Williams.
The Crown submitted that the Judge who heard and saw the witnesses was entitled to conclude that Mr Williams was at the top of the chain, with Mr O’Neill on the next line, Mr Farnworth and Mrs Williams on the next level and other persons below them. The effective commencing sentences were 5 years for Mr Williams, 3 for Mr O’Neill and more than 2 for Mr Farnworth. Although the Judge did not specify it there must have been some allowance for Mr Farnworth’s plea of guilty (albeit it came rather late).
This case demonstrates the real value in a trial Judge articulating (from the knowledge that has been obtained in the course of the trial) the exact basis upon which a particular sentencing is to take place. Notwithstanding the absence of such material here, we are satisfied on the basis of the Crown submissions, and having regard to the totality of the evidence that the inferences which the Judge must undoubtedly have drawn were justified.
It is clear that although Mr O’Neill may have arrived late on the scene he became heavily involved. For instance it is fair to say that part of the reason that he does not figure as a person speaking on the intercepted conversations is that many of them were about him and his activities. Therefore he would not be participating in the discussions. The trial Judge was in the best position to make an assessment as between Mr O’Neill and Mr Farnworth as to who was the more culpable and we can see no basis to disturb his assessment that Mr O’Neill was slightly more culpable. Although the guilty pleas of Mr Farnworth were late, they did come. He was entitled to an allowance for them. Assuming that this allowance was probably only about 6 months, it means that the Judge’s assessment was that Mr O’Neill (who received no credit for a guilty plea) received a 3 year effective sentence and Mr Farnworth had a starting point of 2½ years. There is nothing disparate about that. Although we again acknowledge that Mr Farnworth was treated leniently, particularly when the Judge was persuaded to suspend the term of imprisonment, we are not satisfied that a disparity which would justify intervention is established. This was not a case where the sentence was to be dictated by the amounts of plant which happened to be found in Mr O’Neill’s possession and control at the time that the operation concluded, but having regard to the Judge’s justified assessment of his influence, responsibility and involvement in an ongoing situation.

Hollingsworth

The final appeal was by Mr Hollingsworth. On everybody’s assessment he was at a lower level of culpability.
At the same time the Judge sentenced a man called Scally.
About these two men the Judge said :
Mr Hollingsworth, I am not going to go through in detail the matters referred to in your case. You are only 25. Pull yourself together and keep out of these drug operations. You are an idiot if you get involved in them. You will go to prison for a long time if you are caught again. I will accede to counsels’ joint submission and you will be sentenced to a period of 2 years imprisonment, suspended for 2 years, coupled with 12 months periodic detention. You will report to the Auckland Periodic Centre this Friday at 6 pm.
Mr Scally, the remarks I have just made to Mr Hollingsworth apply equally to you. Again, I am not going to go through your part in detail. You came in obviously at the tail-end of this operation. The Crown accepts this. You will be sentenced to a term of periodic detention for 12 months as recommended. You will therefore report to the Pitt Street Periodic Detention Centre this Friday at 6 pm.
Mr Raftery for the Crown responsibly accepted that on the basis of the Judge’s own comments and in light of the established culpability, there was no apparent basis to differentiate between these two men. He also accepted that the term imposed on Mr Hollingsworth could not be sustained in the circumstances.
Further we are satisfied that there is a measure of disparity between Mr Hollingsworth and Mr Farnworth which is of overall relevance. They received the same sentence, but the latter was much more implicated and had a criminal history which did not exist with the former.
Mr Hollingsworth and Mr Scally are of similar age. Neither had any relevant drug dealing background. They each pleaded guilty during trial to the same offence. Objectively one would have expected that they would have been treated similarly. No reasons for differentiation were articulated and we have not been pointed to any relevant differences.
It may well be that Mr Scally was fortunate that the Judge did not conclude that a sentence of imprisonment of perhaps 6 or 9 months and which could reasonably have been suspended was called for. He did not take that view. In our judgment it is appropriate that Mr Hollingsworth (who was if anything less involved than Mr Scally) should be treated on the same basis.

Result

Accordingly the appeals by Mr Williams and Mr O’Neill are dismissed. Mr Hollingsworth’s appeal is allowed and the sentence of imprisonment imposed upon him is quashed. We confirm the sentence of periodic detention sentence which if it has been suspended pending the hearing of his appeal is to resume on Friday, 2 June 2000.

SOLICITORS

Crown Solicitor, Auckland
Chadwick Bidois, Rotorua
Lance Lawson, Rotorua

[2000] NZCA 70

31 May 2000