The Queen v Kuvarji

[2006] NZCA 210

IN THE COURT OF APPEAL OF NEW ZEALAND

CA151/06

THE QUEEN

v

AARON KUVARJI

Hearing:27 July 2006

Court:Robertson, Goddard and Gendall JJ

Counsel:K B F Hastie for Crown

D J Blaikie for Respondent

Judgment:11 August 2006 at 11 am

JUDGMENT OF THE COURT

APPLICATION FOR LEAVE TO APPEAL REFUSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]        The Solicitor-General seeks leave to appeal against an effective sentence of two years’ imprisonment imposed on the respondent in the High Court at Whangarei on 6 April 2006. 

[2]        Aaron Kuvarji had pleaded guilty to and been convicted of eight offences.  Five were for supplying the class A drug methamphetamine, two of offering to supply methamphetamine and one of offering to sell cannabis.

[3]        The sentencing Judge described the facts as:

[3]       At about 10.30am on Tuesday 8 November 2005, [an undercover Police Officer] had just finished breakfast in a café in Commerce Street, Kaitaia.  He left the café and was walking across the street to his vehicle when you drove past slowly.  You yelled at him and asked his name.  You asked him to wait.  Shortly after that you got into his car and introduced yourself as ‘A’.  You then asked him if he was interested in scoring and you told him you had a $200 bag of methamphetamine for sale.  The police officer told you he was not interested in small quantities like that and that he only dealt in larger quantities of one and two gram lots.  You then offered him some ‘green’, the common street name for cannabis.  You then said you would take him to your ‘cook’ and asked him if he would be prepared to travel there in his vehicle.  He said he would.  He told you he was good for the money.  You and he then parted, agreeing to meet later that morning.  You said that you would have the deal arranged by then.

[4]       Later that morning you and the undercover Police Officer met again in Commerce Street, Kaitaia.  The two of you travelled first to the Pamapuria area where you tried to get some methamphetamine and then to the Herekino area where you tried again but were unsuccessful.  The two of you returned to Kaitaia.  When you parted from the undercover Police Officer you said you would phone him as soon as you had arranged a drug deal.

[5]       Later that afternoon you phoned the undercover Police Officer and asked to meet him again in the main street, saying that you had two grams of methamphetamine arranged with your dealer and that you would take him to your dealer.  At about 4.00pm you met and again travelled to the Pamapuria area, where again you were unable to get methamphetamine.  You then took him to the Fairburn area where you made enquiries but were again unable to get the required amount of methamphetamine.  You returned to town and parted with the assurance by you that you would cement the deal before the day was out.

[6]       At about 5.15pm the undercover Police Officer received a further phone call from you, asking him to meet you at the Pak ‘n’ Save carpark.  You assured him that the methamphetamine cook was on the way with the two grams.  At about 5.40pm the undercover Police Officer met you and got into your car.  You got out a short distance away and returned with Roland Keogh.  Mr Keogh produced four small snaplock bags containing methamphetamine.  You took them from him and were handed by you to the undercover police officer.  He then asked the price.  You and Mr Keogh said the price was $1,500.  The undercover police officer counted out $1,500 in cash and handed it to you.  You handed it through the window to Mr Keogh.  Mr Keogh then left the area.  You and the undercover Police Officer talked about future drug deals.

[7]       At about 3pm on 17 November 2005, one of the undercover Police Officer [sic] communicated with you by cellphone, text message and phone call.  You indicated that you had more methamphetamine for sale and invited him to travel around to your home at 22 Lake Road, Kaitaia.  Two undercover Police Officers then went to your home address, arriving at about 3.50pm.  One went into the house where you met him on the front door step and talked with him.  You and he then arranged a drug deal where he purchased a small, ¼ gram bag of methamphetamine for $200.  He then left.  The other undercover Police Officer met with you at your home.  He asked for some methamphetamine.  You got a ½ gram of methamphetamine, placed a straw into it and removed some of the drug and made up a ¼ gram bag which you sold to him for $200.  Both undercover Police Officers then left.

[8]       At about 8.45pm that night you telephoned one of them, asking if he was still interested in buying two grams of methamphetamine.  He said he was.  You said you would meet him in town in about 10-15 minutes.  You and he met at the Kauri Arms Tavern where you discussed a drug deal.  Both of you then got into your car and you drove to the Herekino Summit where you had previously arranged a drug deal.  You and he waited there and after 5-10 minutes a car driven by Shinella Simeon arrived.  You went to Simeon and got a small plastic bag which contained two grams of methamphetamine.  You handed it to the undercover Police Officer.  You and he weighed it on a set of electronic scales which he had taken.  It was found to weigh 2.2 grams.  There was then discussion about price.  It was agreed that he would pay $1,500 in cash which he counted out and handed to you.  You walked over to Ms Simeon and gave her the money through her open driver’s window.  You received $150 cash for arranging that drug deal.  Immediately after handing the money to Ms Simeon you asked if you could purchase a ¼ ounce bag of methamphetamine from her.  She supplied that to you and you and the undercover Police Officer left and went back to Kaitaia.

[9]       On Sunday 20 to Monday 21 November 2005, one of the undercover Police Officers communicated with you by text messaging on a cellphone. In the course of that a methamphetamine deal was arranged for the Monday morning.  At about 12.30pm you phoned the undercover Police Officer and asked to meet him at the town clock in Kaitaia. You indicated you would have two grams of methamphetamine for sale.  You and he met.  You got into his truck and produced two small snaplock bags which each contained methamphetamine.  The officer weighed the bags.  One contained 2.2 grams and the other two grams of methamphetamine.  There was a discussion about price.  He selected the 2.2 gram bag and counted out $1,550 in cash which he gave to you.  You then discussed supplying him with a pound of cannabis head.  You said that you would sell him a couple of ounces of it first to see if he liked it.  You then both left the area.  As it transpired, the white substance sold that day for $1,550 was sugar, not methamphetamine.

[10]     On 24 November 2005, the Police executed a search warrant at your home.  They found plastic snaplock bags there, identical to the ones used in your previous deals with the police.  You denied at that stage you had met or done any deals with either of the undercover Police Officers.

[4]        The respondent is 23 years of age.  He has a number of convictions for dishonesty, violence and non-compliance with court orders but no previous history relating to drugs.

[5]        The Judge considered the overall circumstances (as discussed by this Court in R v Fatu [2006] 2 NZLR 72) and concluded that the class A offending involved a total of 3.388 grams of methamphetamine with cash transactions up to almost $5,000 (although $1,550 of that related to a transaction in which the respondent handed over sugar, not methamphetamine). The initial cannabis discussion was about a sale of a pound, but the actual offer was to sell a couple of ounces first to see whether the undercover police officer liked it.

[6]        In the result the Judge said:

[24]     Having regard to your role, the amounts involved and the aggravating factors I have mentioned, I consider that an effective starting point of three years imprisonment is appropriate.  From that three years you are entitled to a substantial discount for the mitigating factors which I have mentioned, your co-operation, pleas of guilty, remorse and age.  I consider that should be one year.  That brings a net effective sentence of two years imprisonment.  Accordingly, for the five offences of supplying methamphetamine I sentence you on each to two years imprisonment.  On the two offences of offering to supply methamphetamine I sentence you to one year, six months imprisonment.  For the offence of offering to sell cannabis, I sentence you to one years imprisonment.  All those offences will be concurrent and have an effective term of imprisonment of two years.  As it is entirely inappropriate, I decline leave to apply for home detention.

[7]        The application for leave to appeal is advanced principally on the basis that the overall sentence was manifestly inadequate and failed to take into account the totality principle.

The leave grounds

[8]        Ms Hastie contended that the Judge had mis-applied Fatu, and failed to take into account both the “cross class” nature of the drug related activities and the repeated commercial nature of the dealings.

[9]        It was common ground before us that, in respect of the sentencing bands set out in Fatu at [34], what was alleged and admitted was either at the upper end of Band 1 - low level supply (less than five grams) – two years to four years’ imprisonment; or the lower end of Band 2 – supply in commercial quantities (five grams to 250 grams) – three to nine years’ imprisonment.

[10]     Ms Hastie therefore submitted that the starting point should have led to a starting point of four years’ imprisonment rather than the three years which the Judge determined.

[11]     In making this submission, Ms Hastie drew attention to the fact that in Fatu at [31] and [32] various factors were set out which are of particular reference here. The respondent had demonstrated a preparedness to engage in serious commercial dealing for financial gain in relation to two types of controlled drugs. She noted it was not just “one off” opportunistic offending.

[12]     Counsel also made reference to the totality principle codified in s 85 of the Sentencing Act 2002.  She accepted that a lead sentence with concurrent sentences on other matters was appropriate, but submitted that the Judge, having described the respondent as an active intermediary in the sale of methamphetamine had not reflected that in his adopted starting point.

[13]     The Crown submitted that the one-third discount for early guilty plea, co-operation, remorse and age, while not challengeable, must be regarded as generous.

[14]     Ms Hastie realistically accepted that the point was right at the limits of a leave application, but was concerned that the sentencing could have an inappropriate precedent effect, particularly in Northland where the illicit drug trade is so extensive.

The respondent’s position

[15]     Mr Blaikie equally adopted a realistic position and accepted that the ultimate sentence was merciful and lenient but submitted it was within the appropriate sentencing discretion.

[16]     He argued that the Judge’s choice of three years was within the second band indicated in Fatu and that, within the general scheme of the undercover operation “Maverick” (which had netted more than 50 alleged offenders), the position of this man was at the very lowest level.  He had immediately acknowledged and accepted his responsibility and been co-operative. 

[17]     Counsel submitted that the Judge had seen that Mr Kuvarji was a man who was not beyond redemption and was salvageable.  Although personal factors can have little weight in this area, Mr Blaikie noted that they need not be entirely excluded.

Conclusion

[18]     There should be no question that had the Judge determined on a starting point of four years and had given a discount of only 25%, an appellate court would not have been likely to interfere on the basis that the ultimate sentence was manifestly excessive.  

[19]     However, there were features of this case in which a lesser starting point could be viewed as available within the applicable guidelines, and a case could be made for a generous discount for the reasons identified.

[20]     Although this may be a sentence which is less severe than any of the members of this Court might have imposed had they been dealing with the matter at first instance, we are not satisfied that the test for a Solicitor-General’s application for leave is met.  The Crown has been unable to show that this is a case where the facts “speak with a particularly clear voice”, thereby justifying an increase in sentence:  R v Lepper and McDonald CA102/84, CA103/84, CA111/84 2 November 1984.

[21]     The application for leave is accordingly refused.

Solicitors:
Douglas Blaikie, Kaikohe, for Appellant
Crown Law Office, Wellington