The Queen v Johnston

[2006] NZCA 87

IN THE COURT OF APPEAL OF NEW ZEALAND

CA448/05

THE QUEEN

v

CUSHLA JOHNSTON

Court:Hammond, Chambers and Robertson JJ

Counsel:P J Kaye for Appellant

  S B Edwards for Crown

Judgment (On the Papers):     16 May 2006     

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Chambers J)

Possession of precursor substances

[1]       On 22 December 2004, police executed a search warrant at an address in Papakura.  At that time, Cushla Johnston, the appellant, and Graeme Vowels were present.  Police searched Ms Johnston and found in her pocket a hypodermic needle of the kind used by drug users for injecting illicit drugs.  When asked for an explanation, Ms Johnston told the police that she had found the needle outside a supermarket and had picked it up for safe-keeping.

[2]       The police found in a cooler bag six bottles of chemicals, including hydrochloric acid and toluene.  Those chemicals are prohibited precursor substances listed in Part 2 of the Fourth Schedule of the Misuse of Drugs Act 1975; they are predominantly used to extract the base precursor substance, pseudoephedrine, as part of the process of manufacturing methamphetamine.  The police also found in a bag of children’s clothing two plastic soft drink bottles containing two-layer liquids, which were believed to be the by-product of the extraction of pseudoephedrine from cold and flu tablets.  Ms Johnston was asked about these.  She said that she had obtained the bag of children’s clothing from a clothing bin and that the soft drink bottles must have been there all along.

[3]       The police charged Ms Johnston and Mr Vowels with three counts under s 12A of the Misuse of Drugs Act.  These counts related to the accused having in their possession precursor substances, namely pseudoephedrine, hydrochloric acid, and toluene, in each case with the intention that the substance be used in, or for, the commission of an offence against s 6(1)(b) of the Misuse of Drugs Act, namely the production or manufacture of any controlled drug.  In addition, Ms Johnston was charged under s 13 of the Misuse of Drugs Act with having in her possession a hypodermic needle for the purpose of the commission of an offence under s 7 of the Misuse of Drugs Act, namely the use of any controlled drug.

[4]       Ms Johnston pleaded not guilty to those four charges.  A District Court jury found her guilty on all charges.  Judge Blackie, the trial judge, sentenced Ms Johnston to concurrent sentences of 18 months’ imprisonment in respect of each of the charges involving the precursor substances.  On the needle charge, he imposed a sentence of six months’ imprisonment (concurrent).  The total sentence was therefore 18 months’ imprisonment.  He declined leave to apply for home detention.

Issue on the appeal

[5]       There is only one issue on the appeal: was that sentence of imprisonment manifestly excessive?

[6]       This appeal has been heard on the papers under s 392B of the Crimes Act 1961.  The relevant materials, including written submissions, have been considered by members of the court who have conferred and agreed upon this judgment.

Length of sentence

[7]       Judge Blackie, who had the considerable advantage of having been the trial judge, noted that there were two aggravating factors.  The first was that the circumstances of this offending indicated premeditation, “a degree of planning and preparation”.  Secondly, he noted that Ms Johnston was “not new to the drug scene”.  He noted that she had a number of prior drug convictions, including convictions for possession of cannabis, cultivation of cannabis, and possession of utensils for using methamphetamine.  He said that the prior offending had been dealt with by non‑custodial sentences.  They had clearly been ineffective in deterring Ms Johnston from further offending. 

[8]       After referring to appellate authorities, Judge Blackie concluded that an appropriate starting point would be in vicinity of two and a half to three years’ imprisonment.  After considering the submissions of Mr Kaye, who appeared for Ms Johnston in the District Court as he has in this court, the judge concluded, however, that there should be a year’s reduction, leading to an overall sentence of 18 months’ imprisonment.  That reduction from the starting point seems to have been based on two factors, which the judge treated as mitigatory:

(a)There was evidence to suggest that Ms Johnston had had an unhappy and generally unsatisfactory childhood and that her relationship with Mr Vowels, her co-offender, was abusive.

(b)The probation officer reported that he considered she posed “ a low risk of further offending” on the basis that, by the date of that report (2 November 2005), Ms Johnston was “apparently drug free”. 

[9]       Ms Edwards, for the Crown, has referred us to a number of High Court and Court of Appeal cases, dealing with possession of precursor substances.  It is apparent from them that Judge Blackie’s sentence was within range.  Indeed, Ms Johnston may consider herself somewhat fortunate in the reduction the judge gave for the mitigating factors he identified.

[10]     There is no appeal from the judge’s decision to decline leave to apply for home detention.  Even had there been, such appeal would not have succeeded.  The judge considered the relevant factors, including the fact that drug offending had taken place in the offender’s home.  The judge properly took into account that this was serious offending in respect of which deterrence is a primary focus.  The judge was entitled to conclude that “it would send the wrong type of message to others”  if  drug offenders were to conclude they could assemble precursor materials at home and then, if caught, “end up [serving their sentence] within the confines of their own home”, the very place where they had taken the first steps towards drug manufacture.

Solicitors:
Crown Law Office, Wellington