The Queen v Mark Anthony Graham

[2003] NZCA 231

IN THE COURT OF APPEAL OF NEW ZEALAND

CA199/03

THE QUEEN

v

MARK ANTHONY GRAHAM

Hearing:24 September 2003

Coram:Blanchard J
Goddard J
William Young J

Appearances:  R G Glover for Appellant

A Markham for Crown

Judgment:26 September 2003 

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]       On 22 May this year the appellant was sentenced in the District Court at Christchurch to 18 months imprisonment (with leave to apply for home detention) on a charge of offering to supply methamphetamine.  He had been found guilty on this charge by a jury.

[2]       He now appeals against sentence. 

Factual background

[3]       The offending in question involved the appellant and another man, Craig Rendel, obtaining $2,800 from an undercover officer who believed that he was acquiring from them an ounce of methamphetamine.  The substance actually supplied contained caffeine and not methamphetamine. 

[4]       Rendel had been involved in a number of transactions with the undercover officer and, in the course of these transactions, had supplied him with drugs (cannabis, cannabis oil and Ecstasy) for a total cost of $3,835.  Rendel and the undercover officer discussed the possibility of the undercover officer purchasing an ounce of methamphetamine from Rendel and Rendel had indicated that he would attempt to source methamphetamine for the undercover officer.  Ostensibly for this purpose, Rendel took the undercover officer to a meeting point where they met up with the appellant.  The undercover officer paid Rendel $2,800 (being the agreed price for an ounce of methamphetamine).  Rendel and the appellant then walked a little distance away and crouched down together on the kerbside.  When they returned, Rendel handed to the undercover officer a large snaplock bag that contained a light coloured powder.  This narrative of events suggests that the snaplock bag containing the light coloured powder was provided by the appellant.  On the other hand, given the play-acting which was (or may have been) involved, it is possible that Rendel had the substance on him throughout and that the role of the appellant was simply to lend credibility to a fraud.

[5]       The evidence does not establish with certainty whether the appellant knew that the substance to be supplied to the undercover officer did not contain methamphetamine.  It is at least likely, however, that the appellant appreciated that there was no methamphetamine.  If this was his state of mind, the substance of his criminality should be seen as being a party to the fraudulent obtaining of $2,800.

The penalty imposed upon Rendel

[6]       Rendel was sentenced in the High Court on 5 September last year on charges involving the supplying of drugs to the undercover officer for a total cost of $3,835 and for offering to supply methamphetamine.  He also appeared for sentence on an unrelated driving charge.

[7]       The sentencing Judge (who is a member of the Court as presently constituted)  identified a starting point sentence of 30 months imprisonment in relation to the drug offending (including the methamphetamine charge).  A discount of one-third was allowed for early pleas of guilty producing an effective sentence of 20 months imprisonment.  As well, Rendel was sentenced to three months imprisonment on a cumulative basis in relation to an unrelated driving charge.  He was given leave to apply for home detention.

The approach of the District Court Judge

[8]       In his sentencing remarks in the case at hand, the District Court Judge referred to the facts and to the sentence imposed on Rendel.  He then went on:-

[15]     Mr Glover has submitted that, because your involvement was confined to just this one transaction and because your involvement in it was a lesser one than that of Rendel, the court could consider properly in your case a sentence short of imprisonment, namely community work.  I am unable to accept that submission.  I am satisfied that you knew what was going on and that you were very much a part of this transaction even if it might have been only to lend credibility to what Rendel was doing.

[16]     Unlike Rendel you were not involved in other dealings with the undercover officer.  I therefore consider that a lesser starting point than the 30 months, fixed by Young J as appropriate, can be regarded as proper in your case.  Here the appropriate starting point, in my view, is one of 18 months imprisonment.  I have given full weight to the fact that you were not involved in other transactions.  No credit is available obviously for a plea of guilty.  In reaching the view that 18 months is the appropriate starting point I have not overlooked that this was not in fact methamphetamine.  However, I am satisfied that you were knowingly involved in a deliberate course of conduct whereby the undercover officer was led to believe that he was purchasing methamphetamine.  On that basis he was prepared to pay $2,800 for the package.

[17]     In all the circumstances I consider that a sentence of 18 months imprisonment is appropriate.  I do not propose to impose any special conditions of parole.  The standard conditions of parole will apply until the sentence expiry date.  I will grant you leave to apply for home detention but I can see no basis upon which to defer the commencement date of the sentence.  The offending is too serious for that and I do not consider that adequate grounds have been made out to warrant a deferment.

The argument for the appellant

[9]       The appeal was put forward on the basis that the sentence of 18 months imprisonment was too severe when compared to the actual sentence of 20 months imprisonment imposed upon Rendel for the drugs charges which he faced. 

[10]     Developing this argument, counsel for the appellant claimed that the 20 months sentence imposed on Rendel for the charges which he faced (which included five charges of supplying drugs) was in marked contrast to the 18 months sentence imposed upon Graham who faced only the single methamphetamine charge.  He noted as well that the evidence indicated that it was Rendel and not the appellant who received the $2,800 paid by the undercover officer.

Argument for the Crown

[11]     For the Crown, Ms Markham argued that the appropriate comparison was not with the 20 months sentence imposed upon Rendel but rather with the 30 months starting point.  She said that the sentence imposed was appropriate on any view of the facts.  If it was the case that the appellant believed that the substance supplied was methamphetamine, then this involved what was in substance an attempt to sell, for an appreciable sum, a significant quantity of a Class B controlled drug.  If, on the other hand, the appellant was simply involved in a charade and knew that the substance involved was not methamphetamine, then the sentence imposed was broadly in line with sentences previously imposed in similar cases.  She also claimed that the 18 months sentence imposed upon the appellant was not obviously and strikingly inconsistent or out of line with the 30 months starting point sentence identified in the case of Rendel.

Discussion

[12]     It is noteworthy that counsel for the appellant did not contend that the sentence of imprisonment which was imposed could be regarded as manifestly excessive if viewed on a stand-alone basis.  We are satisfied that counsel was correct in not advancing this argument. 

1.If it is the case that the appellant believed that he was supplying methamphetamine, then the offending involved was necessarily drug related and, involving as it did an attempt to supply a Class B drug and a reasonably substantial sum of money, plainly warranted a sentence in the order of 18 months imprisonment.

2.On the assumption that the criminality in fact involved obtaining $2,800 by fraud, the sentence must be regarded as stern, as Ms Markham for the Crown acknowledged.  But given the appellant’s extensive criminal record (which includes many offences of dishonesty), it could not be regarded as being outside the range available to the Judge. 

[13]     We are, however, troubled by the inter-relationship between the sentence imposed upon the appellant and that imposed upon Rendel.  Of the drugs charges for which Rendel was appearing for sentence, the methamphetamine charge was the least serious.  Although Rendel’s asserted position at the time of sentence was that he had been acting merely as an intermediary, a broadly similar contention was able to be advanced by the appellant when he appeared for sentence, namely that he was merely a secondary party to the offending.  Although the District Court Judge had doubts as to whether this was so, he was willing (and really required) to sentence the appellant on that basis.

[14]     We recognise that in this case there are a number of factors complicating the disparity assessment in this case which are not normally present.  Rendel appeared for sentence on more charges than the appellant.  There is a real sense in which the methamphetamine charge which Rendel faced was swallowed up in the assessment by the sentencing Judge of the criminality in relation to the charges involving the actual supply of drugs.  As well, the totality principle was obviously of moment in the case of Rendel but irrelevant in the case of the appellant. 

[15]     All of that said, we are left with the view that the sentence of 18 months imprisonment imposed upon the appellant as compared to the 30 months starting point sentence adopted in the case of Rendel simply does not look right; this to the extent that the disparity principles are engaged. 

Disposition

[16]     In the circumstances, the appeal is allowed and the sentence of imprisonment reduced from 18 months to 12 months.  We confirm that the appellant has leave to apply for home detention. 

Solicitors:
Glover Sewell, Christchurch
Crown Law Office, Wellington