The Queen v Lorraine Margaret Prescott
[2000] NZCA 248
•31 August 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 58/00 |
THE QUEEN
V
NGAWAI HIRAANA TIMU
| Hearing: | 31 August 2000 |
| Coram: | Thomas J Goddard J Panckhurst J |
| Appearances: | R M Lithgow for the Appellant M J Thomas for the Crown |
| Judgment: | 31 August 2000 |
| JUDGMENT OF THE COURT DELIVERED BY GODDARD J |
Introduction
The appellant was convicted following trial by jury on a number of drug offences: two charges of conspiracy to supply methamphetamine (a Class B drug) for which she received a sentence of 3 years and 3 months’ imprisonment; two charges of conspiracy to supply cannabis (a Class C drug) for which she received a sentence of 4 months’ imprisonment cumulative upon the sentence of 3 years and 3 months’ imprisonment; selling methamphetamine for which she received a concurrent sentence of 18 months’ imprisonment; possession of methamphetamine for supply for which she received a further concurrent sentence of 18 months’ imprisonment; and possession of cannabis for which she received a concurrent sentence of 4 months’ imprisonment. The total effective sentence imposed was thus one of 3 years and 7 months’ imprisonment.
The appellant now appeals against that total effective sentence on the grounds that it is manifestly excessive. Her appeal is out of time but the Crown took no objection to that and leave to appeal out of time is accordingly granted.
The Facts
The appellant was one of a number of several co-offenders arrested on drug charges following a drug surveillance operation conducted by the Police on the North Shore of Auckland prior to March 1998. During the operation a number of telephone conversations sent and received from targeted addresses were legally intercepted. The appellant, whilst not a principal offender, lived at one of the targeted addresses and the principal offenders, Michael Waipouri and Joanne Hewetson, lived at another address. Telephone conversations intercepted from both addresses revealed substantial dealing in methamphetamine or amphetamine at both addresses with the drugs being supplied in lots of 5 x 1 gram bags. When the appellant ran out of supplies, she would telephone Michael Waipouri or Joanne Hewetson with that advice. At one point of the operation the appellant sold 0.865 gram of methamphetamine to an undercover police officer. On arrest, she was found to be in possession of five bags of amphetamine containing a total of 3.3 grams of the drug. These had been delivered to her address late the previous evening by Joanne Hewetson, following a telephone call by the appellant. Fifteen “tinnies” of cannabis were also found at her address, having a total weight of 11.2 grams.
The Sentencing Judgment
Michael Waipouri and the appellant appeared for sentencing together. He had been found guilty on five counts involving conspiracy and supply of methamphetamine, amphetamine and cannabis. The Judge was satisfied on the evidence that he and Joanne Hewetson were the principal offenders and that Joanne Hewetson was probably the prime mover in the drug dealing enterprise. She had absconded before trial.
The Judge proceeded to sentence the appellant on the basis of the Crown’s description of her as a “trusted lieutenant” in the operation, and a regular dealer in methamphetamine and amphetamine and occasionally also cannabis. He expressly rejected a suggestion that the operation at the appellant’s address was no more than a “tinnie house”, in which occasional dealing in amphetamine also occurred. He found the evidence did not support such a suggestion and that the evidence from the intercepted telephone conversations “put the matter the other way around”.
In terms of quantities involved, the Judge accepted an estimate prepared by the Officer in Charge of the case, but reduced the turnover calculation to a more conservative figure. Based on regular restockings of drug levels at the appellant’s address, as discerned through the intercepted telephone conversations - at least 2-3 times daily in five bag lots - the turnover yielded would be in the vicinity of $75,000 for a two month period. The Judge noted that represented a substantial level of dealing, even if not major dealing by some standards. Whilst also noting there was no evidence of lavish lifestyle, large profits or expensive acquisitions, the Judge found the important fact to nevertheless be the substantial and ongoing nature of the operation. The appellant was not simply offending in order to sustain personal addiction but there was an element of financial profit for her from her drug dealing activities.
The Judge also made reference to the appellant’s personal circumstances, which have unfortunate features. Relying on the guidance in R v Wallace [1999]
3 NZLR 159, (1999) 16 CRNZ 443, he weighed the relative culpability of the appellant and Michael Waipouri in determining which category each came within, in terms of that decision. He found Michael Waipouri’s offending to come largely within the second category of offending on a “substantial scale” although possibly with elements of the third category. Given his position as a principal but not necessarily the prime mover and the extent of the offending, the Judge settled the appropriate starting point for him at 5½ years’ imprisonment. Taking into account what mitigating factors there were, he allowed a deduction of 1 year, resulting in a sentence of 4½ years’ imprisonment for the Class B drug charges but with a cumulative sentence of 4 months’ imprisonment for cannabis dealing charges: thus a total effective sentence of 4 years and 10 months’ imprisonmentThe Judge then turned to the appellant’s position. He said:
The starting point for Ms Timu I take at 4½ years. I have done that principally by comparison with Mr Waipouri’s position, which comparison I set out earlier – that is, he was the principal offender while she was a trusted lieutenant; he was responsible in effect for two addresses, she for one only; on the other hand she has seven convictions, he has five. Putting all those together I think a suitable starting point for her is 4½ years.
Her personal mitigating factors are, in my view, a little stronger and I allow fifteen months in respect of those to give a sentence of three years, three months, to which I add a cumulative sentence of four months in respect of the Cannabis dealing. She will therefore serve a total sentence of three years and seven months…
The Case for the Appellant
On behalf of the appellant, Mr Lithgow submitted that her role in the drug dealing operation was over-stated in the sentencing exercise and the starting point of 4½ years therefore pitched too high. Mr Lithgow described her role as relatively low level in an unsophisticated operation for little or no profit: a role more properly reflected in a starting point of not more than half that of Mr Waipouri’s. He submitted that the appellant’s unfortunate personal circumstances simply underscored the subordinate nature of her role in the total operation, which was controlled by Mr Waipouri and Ms Hewetson. Although not alleging disparity, Mr Lithgow argued that a greater difference in the sentences imposed on the appellant and Mr Waipouri should have been allowed.
Discussion
In Wallace this Court carefully reviewed the sentencing principles and appropriate ranges of sentences for Class B drug dealing, so as to facilitate future sentencing and aid consistency in sentences imposed. The comprehensive nature of the judgment and its review of previous cases provides sufficient reference without need to further research and cite earlier cases. Delivering the judgment of the Court, Gault J noted the increasing trend in amphetamine dealing cases coming before the Courts and the insidious and dangerous nature of methamphetamine. The description of the drug in Wallace bears repeating for the edification of those minded to deal in it:
…a dangerous drug rightly classified in Class B. It was described in R v Thompson (Court of Appeal, Wellington, CA 374/93 & CA 375/93,14 October 1993) at p 3 as “a powerful form of amphetamine, carrying a high risk of psychological dependency” which “should be ranked as one of the more insidiously dangerous of the Class B drugs.”
As Gault J went on to note, the perniciousness of methamphetamine is not to be distinguished from other amphetamines. The clear message is that those willing to deal in such drugs must expect a firm sentence in response.
The sentencing Judge in this case had also presided at the trial which lasted in excess of four weeks. Both Mr Waipouri and the appellant gave evidence at trial and the Judge was therefore in a good position to assess their relative culpability as well as their overall culpability in the total operation.
In setting the appellant’s level of culpability at 4½ years before taking into account mitigating and aggravating factors, the Judge recognised her lesser role in what he described as “a small to medium operation”. Ultimately, he determined her offending as coming within the third category in Wallace, albeit at the upper end. Despite Mr Lithgow’s submission that the appellant’s particular offending should be regarded at the lower end of the third category, we are satisfied the Judge correctly assessed her culpability as meriting a starting point at the higher end. As we have said, he was in a good position to make this assessment.
The surveillance operation established the appellant’s drug dealing activities as ongoing and substantial: that was verified by the estimates calculated by the Officer in Charge on the basis of intercepted telephone conversations. The borrowed analogy of her as a “first lieutenant” was not, on analysis, an overstatement. She was trusted by Mr Waipouri and Ms Hewetson. She was their vendor, responsible for retailing Class B drugs and cannabis from her address. Her activities were ongoing and regular and her distribution role was no doubt vital to the overall operation.
The Judge found no aggravating factors beyond the appellant’s offending, save for her previous convictions for cannabis dealing and cultivation, but gave her a fairly handsome discount of 1 year for her personal circumstances. This can be regarded as a lenient gesture, as it is well established that personal circumstances normally count for little where drug dealing offences are concerned.
The maximum sentence for conspiracy to supply methamphetamine is 10 years’ imprisonment, and the maximum penalty for sale and possession for supply of the drug is 14 years’ imprisonment. The Judge chose to attach the lead sentence of 3 years and 3 months’ imprisonment to the charge of conspiracy to supply methamphetamine and then made all other sentences concurrent with that, save for the charge of conspiracy to supply cannabis. It does not matter greatly which of the Class B drug offences the Judge chose for the lead sentence: the important factor is the totality of the effective sentence and whether it accurately reflects the appellant’s culpability.
We are satisfied, in the appellant’s case, that the total effective sentence imposed accurately reflects her culpability and is not manifestly excessive. Nor is it out of line in any sense with the sentence imposed on Mr Waipouri.
Judgment
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington, for the Crown
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