The Queen v Hair

[2009] NZCA 214

IN THE COURT OF APPEAL OF NEW ZEALAND

CA723/2008
[2009] NZCA 214

THE QUEEN

v

MAREE ELIZABETH HAIR

Hearing:6 May 2009

Court:Glazebrook, Potter and Asher JJ

Counsel:D S Niven for Appellant

B D Tantrum and S Earl for Crown

Judgment:28 May 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

_________________________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1]       The appellant was found guilty following trial on four drug related offences involving the Class A drug methamphetamine:

(a)Conspiring with others to manufacture methamphetamine (Count 2 in the indictment);

(b)Supplying methamphetamine (Count 15);

(c)Offering to supply methamphetamine (Count 17);

(d)Conspiring with others to supply methamphetamine (Count 69).

[2]       She was sentenced to seven years’ imprisonment on the lead offence and appeals against that sentence on the ground that it is manifestly excessive because:

(a)The starting point for the lead offence (Count 2) was set too high due to the level of supply of ContacNT being overstated;

(b)The totality of the appellant’s offending was set too high and does not properly reflect the lack of commerciality in her dealings; and

(c)No credit was given for significant mitigating factors and, as a result, the sentence does not truly reflect parity between co-offenders.

Background facts

[3]       The offending of Ms Hair and her six co-offenders was detected during the course of a police investigation known as “Operation Twickers”, carried out from June to October 2005.  The Crown’s case was that the precursor substance ContacNT was supplied, primarily by a Mr Tang to a Mr Marsh, and moved by him through intermediaries, including the appellant Ms Hair and a Ms Teo, to methamphetamine cooks.  Finished methamphetamine was channelled back to Mr Marsh through Ms Hair and Ms Teo.

[4]       ContacNT supplied to Ms Hair by Mr Marsh was on-supplied by her to a methamphetamine cook referred to as “Mitchell”.  In sentencing the Judge proceeded on the basis of a Crown memorandum showing in the order of 1500 packets of ContacNT supplied by Ms Hair.  Evidence given at trial as to the possible methamphetamine yield from that amount of ContacNT provided the basis for the Crown’s submission that the yield would be between 669 grams and 1 kilogram of methamphetamine.

[5]       The convictions on the charges of supplying, offering to supply and conspiracy to supply methamphetamine all resulted from intercepted text and cellphone communications and audio surveillance.  In the case of Ms Hair, the supply of methamphetamine involved one gram of methamphetamine and the offer to supply involved ten grams of methamphetamine. 

[6]       The conspiracy to supply charge arose out of subsequent police surveillance in late May 2006 after Ms Hair had been arrested and released on bail for the offending arising out of Operation Twickers.  It involved the supply of commercial quantities (in grams) of methamphetamine. 

Sentence appealed

[7]       On 21 August 2008, Andrews J, the trial Judge, sentenced Ms Hair and five of the other offenders convicted of various drug related offences following trial.  She sentenced Ms Teo on 14 October 2008.

[8]       The Judge recorded from the pre-sentence report that Ms Hair was 39 years old, had become addicted to the drug methamphetamine after social use and the motivation for her offending was to keep up her own supply of the drug and that of her friends.  She was assessed as posing a low risk of re-offending and a low risk to the community.  The probation officer noted she had addressed factors contributing to her offending.

[9]       On the basis of the potential yield of methamphetamine involved in Ms Hair’s offending the Judge assessed that in terms of R v Fatu [2006] 2 NZLR 72 the initial starting point for the conspiracy to manufacture charge was within a range of nine to fourteen years’ imprisonment.

[10]     Having considered submissions from Mr Niven, counsel for Ms Hair, that Ms Hair was not an essential link in the process of manufacturing methamphetamine but rather provided occasional assistance on an irregular basis, the Judge found that the role of Ms Hair was an “effective one”, channelling ContacNT to a manufacturer and the manufactured methamphetamine back to Mr Marsh.  She accepted that Ms Hair’s role did not reach the level of that of Mr Marsh, Mr Holloway or Mr Al Hachache. 

[11]     The Judge therefore adopted an initial starting point of nine years’ imprisonment on the lead charge of conspiracy to manufacture methamphetamine.  She contrasted that with the initial starting point of fourteen years’ imprisonment adopted for Mr Marsh.  She allowed a discount of 30% to take account of the lower maximum penalty for a conspiracy charge (fourteen years), which she had applied for other offenders convicted of the same offence, to reach an adjusted starting point of six years’ imprisonment.

[12]     The Judge then considered the appropriate uplift to the starting point for the remaining offences.  She noted the Crown’s submission that a starting point for the offences of supplying and offering to supply methamphetamine, involving respectively one gram and ten grams of methamphetamine, should be three to four years’ imprisonment.  She noted the conspiracy to supply charge arose separately and later than the offending detected in Operation Twickers and when Ms Hair was on bail for the Twickers offending.  Considering the offending as a whole, she accepted that the conspiracy to manufacture and the supply and offer to supply were a connected series of offences which should receive concurrent sentences.  She said she had given considerable thought to whether the sentence on the later charge of conspiracy to supply should be served concurrently.  She concluded that, in all the circumstances, it should, but that there should be an uplift to the sentence on the lead charge of conspiracy to manufacture of twelve months’ imprisonment.

[13]     The end sentence imposed was therefore seven years’ imprisonment on the lead charge.  On each of the other charges Ms Hair was sentenced to eighteen months imprisonment to be served concurrently.

Starting point for lead offence (Count 2) set too high due to the level of supply of ContacNT being overstated

[14]     The Judge took into account three particular factors in setting the initial starting point:

(a)The quantity of ContacNT supplied;

(b)The level of Ms Hair’s culpability; and

(c)The level of her culpability in relation to others involved in the conspiracy.

[15]     Mr Niven referred to the Crown’s submissions on sentence that the number of packets of ContacNT sourced and supplied by the appellant was in the order of 1500 and, referring to the detail of the transactions, submitted there was double counting and other errors in reaching this total.

[16]     Mr Tantrum, counsel for the Crown, accepted the difficulty of now trying to trace back through the Crown’s calculations, and given there was no dispute as to 1200 packets of ContacNT being involved in the relevant transactions, he accepted that as an appropriate basis for sentence.

[17]     Mr Niven then submitted that because the Judge proceeded on the basis of the wrong quantity, the starting point was too high and arithmetically an adjusted starting point of five years should have been adopted.  However, Mr Niven accepted that the Judge took into account factors other than the quantity of methamphetamine in fixing the starting point.

[18]     Mr Tantrum said that the reduced number of packets equated with a yield of between 500 to 700 or 800 grams which still placed the offending in band 4 of Fatu.  He submitted that in adopting a starting point of nine years’ imprisonment before making the 30% deduction to reflect the conspiracy charge, the Judge had effectively placed the offending at the bottom of band 3, so the principled approach adopted by the Judge remained sound notwithstanding the reduced quantity of the drug involved.

[19]     The Judge assessed the starting point for the conspiracy offending to be in the range of nine to fourteen years’ imprisonment and took a starting point for the appellant at the bottom of that range.  We accept that the starting point, based only on quantity, was at the lower end of the available range.  Accordingly, the adjustment in the quantity of ContacNT from 1500 to 1200 packets does not impact upon the initial starting point taken by the Judge, as the Crown submitted. 

Totality of offending set too high and does not properly reflect lack of commerciality in appellant’s dealings

[20]     Mr Niven essentially repeated before us the submissions he made on sentencing, that while Ms Hair delivered ContacNT to “Mitchell” she was not a key figure in the conspiracy and her dealings had no commercial element.  His emphasis was that Mitchell was somebody known to Ms Hair, which was the reason for her delivering ContacNT to him and collecting methamphetamine from him.  At the same time Mr Marsh had direct contact with Mitchell, so Ms Hair was not essential and not involving herself on a fully commercial basis.  Nevertheless, he accepted the Judge’s findings that Ms Hair’s role was an effective one and that she channelled the ContacNT to Mitchell.  He conceded this was the most difficult of the three points he sought to advance.

[21]     The Crown pointed to the fact that there were appropriately 1200 packets of ContacNT and five transactions involved in Ms Hair’s offending.  Mr Tantrum submitted the Judge accurately reflected the level of her offending.

[22]     The Judge carefully distinguished between the level of culpability of Ms Hair in the conspiracy compared to that of other co-offenders such as Mr Marsh, Mr Holloway and Mr Al Hachache.  She did not attribute commerciality to Ms Hair’s involvement (though she did note the notebooks with tick lists found in Ms Hair’s possession).  Rather, she assessed the role as “effective” in channelling the ContacNT and the methamphetamine between the manufacturer and Mr Marsh.

[23]     In considering the totality of the offending, the Judge applied to the adjusted starting point of six years’ imprisonment, an uplift of twelve months’ imprisonment to take account of the conspiracy to supply charge of which Ms Hair was convicted while she was on bail for the other charges arising out of Operation Twickers.  This charge involved supply of methamphetamine in commercial quantities.  In the Crown’s submission this offending warranted a starting point between three and four years’ imprisonment on a stand alone basis.  The uplift of twelve months’ imprisonment can be regarded as modest.  This offending could have justified a cumulative sentence because the offending arose at a different time and in different circumstances from the previous offending.

No discount for mitigating factors

[24]     Mr Niven submitted that it was only Ms Hair out of the offenders who was not credited with any discount for mitigating factors.  In his submission the mitigating factors relating to Ms Hair were equally strong, particularly compared with those relating to Ms Teo. 

[25]     Ms Teo, who was sentenced subsequently to Ms Hair and the other offenders, received a sentence of three years six months’ imprisonment on a charge of conspiracy to manufacture methamphetamine, five charges of supplying methamphetamine and one charge of both offering and conspiring to offer to supply methamphetamine.  All offending arose out of Operation Twickers.  She, like Ms Hair, was an intermediary between Mr Marsh and the methamphetamine cooks.  The ContacNT supplied by Ms Teo was approximately 700 packets with a yield between 312-468 grams.  She received approximately 104 grams of methamphetamine in exchange for the precursors supplied.  The Judge found that her culpability was at a lower level than that of Ms Hair on the basis of the lower potential methamphetamine yield.

[26]     In sentencing Ms Teo, the Judge distinguished between the circumstances of her offending and those of Ms Hair.  She adopted an initial starting point for Ms Teo of six years’ imprisonment, from which she made the same 30% deduction to reflect that the conviction was for conspiracy rather than actual manufacture.  This resulted in a revised starting point of four years and three months’ imprisonment.  This compares with the revised starting point of six years taken for Ms Hair and appropriately reflects their different levels of culpability.

[27]     The Judge allowed one year three months for mitigating factors relating to Ms Teo personally, which reduced the sentence to three years’ imprisonment.  The Judge then added six months’ imprisonment to reflect the totality of the offending, resulting in a final sentence of three years six months’ imprisonment.  The Judge specifically stated that an uplift of twelve months was applied in the case of Ms Hair, but that took into account that her conspiracy to supply offending was committed after the termination of Operation Twickers and while she was on bail on charges arising out of Operation Twickers.  The Judge said that aspect was not present in the case of Ms Teo so a lower uplift was justified.

[28]     The Judge briefly referred to the mitigating factors she took into account in relation to Ms Teo as including the considerable influence Mr Marsh exerted over her, particularly in relation to accounting to him for money and the manufactured methamphetamine.  In that respect, Ms Teo took no primary or organising role at all, being simply a “fetcher and carrier”.  She was also treated by the other co-offenders as an outsider and discussed in a derogatory and abusive way.  She was not as closely involved as Ms Hair.  The Judge also referred to expressions of remorse and contrition and that Ms Teo had no previous convictions of any nature.

[29]     Mr Niven submitted that many of these mitigating factors applied also to Ms Hair and that she was penalised because not only was the uplift of twelve months greater than that applied in respect of Ms Teo but also she received no discount for mitigating factors. 

[30]     As we have previously stated, we consider the uplift of twelve months, given Ms Hair’s subsequent offending while on bail, to be modest.  It would have been open to the Judge to impose a cumulative sentence or to apply an uplift of, say, two years and then to have allowed a discount of, say, one year for mitigating factors.  In applying the uplift of one year, Andrews J clearly stated that she was considering the offending as a whole.

[31]     Some of the mitigating factors the Judge accepted in respect of Ms Teo did not apply to Ms Hair including the influence of Mr Marsh on Ms Teo, the particular nature of her role as a mere “fetcher and carrier” and her offence-free record. 

[32]     The Judge in sentencing Ms Teo distinguished carefully between the respective roles of Ms Hair and Ms Teo in the offending.  She was entitled to decline any discount for absence of previous convictions given Ms Hair’s subsequent offending while on bail which was clearly an aggravating factor not present in Ms Teo’s case.  When the offending is viewed in its totality, the uplift of twelve months without a separate allowance for mitigating factors was appropriate.

Result

[33]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington