The Queen v McLiesh

[2009] NZCA 308

IN THE COURT OF APPEAL OF NEW ZEALAND

CA348/2009
[2009] NZCA 308

THE QUEEN

v

LEEZANNE MCLIESH

Hearing:14 July 2009

Court:Chambers, Randerson and Keane JJ

Counsel:N C Wintour for Appellant

J M Jelas for Crown

Judgment:17 July 2009 at 10 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.

BThe sentence of imprisonment for two years three months imposed on the charge of supplying methamphetamine is quashed and a sentence of 18 months imprisonment is substituted.

CThe concurrent sentences on the remaining charges are undisturbed.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]       After a sentencing indication, the appellant pleaded guilty to a series of charges under the Misuse of Drugs Act 1975.  She was sentenced on 10 June 2009 by Judge David Harvey in the District Court to a term of imprisonment of two years three months.  She now appeals against that sentence on the ground that it was manifestly excessive and on the ground that the Judge did not impose a sentence of home detention which, the appellant contends, was impliedly indicated by the Judge at the time of the sentencing indication.

Background facts

[2]       The sentencing indication was given on 22 April 2009 in respect of two indictable charges: one of supplying methamphetamine and one of simple possession of methamphetamine.  At the time of the sentencing indication, the appellant was also facing additional charges laid summarily which arose from the same incident as the indictable charges.  Although the Judge was informed of these charges, there was no evidence before the Court of the details of them and they do not appear to have been considered as part of the sentencing indication. 

[3]       The brief record of the sentencing indication was expressed in the following terms:

[1]  Starting point of three years.  Adjustment for personal mitigation and guilty plea two years, three months.  Other matters may be revealed by the pre-sentence report which could bring the matter into home detention territory but that is the indication at the moment Mr Anderson.

[2]  On the basis, Mr Anderson, that the charges are of an historical nature, well not quite historical but getting a bit old, and that she has family responsibilities, I would grant her bail.

[3]  There is a possibility too that, although I have indicated imprisonment, that may well change.  I think that I can step away from a rigorous approach to s 13. 

[4]       As a result of the sentencing indication, the appellant pleaded guilty the same day to the indictable charges.  At the sentencing hearing on 10 June 2009, the appellant also pleaded guilty to five summary charges. 

[5]       All the charges arose from an incident on 31 December 2007 when the appellant’s motor vehicle was stopped by the police in the early hours of the morning.  Located in the vehicle were 28 point bags, three of which were found to contain methamphetamine powder residue.  Also located were three point bags containing a total of .279 grams of crystal methamphetamine, $1400 in $20 notes and various items of equipment used in the sale and supply of methamphetamine.  The appellant admitted having previously been a drug dealer but said she had stopped when she became pregnant.  She admitted she had become involved in dealing drugs again because she was short of cash.  She told the police that the three point bags of methamphetamine were for personal use. 

[6]       The summary charges arose from the appellant’s possession of five point bags of cannabis (a total of .5 grams), one tab of LSD, 18 tabs of various prescription medicines and various utensils including two glass pipes and a cannabis pipe.

The Judge’s approach on sentencing

[7]       Relying on R v Hill [2008] 2 NZLR 381 (CA), the appellant’s counsel (not Mr Wintour) submitted on her behalf at sentencing that the appropriate sentence was home detention. This had been recommended by the probation officer who assessed the appellant as having a low risk of reoffending. The appellant was responsible for the care of her 18 month old child who we understand was born not long before the appellant was arrested.

[8]       The Judge did not consider much had changed since the sentencing indication, noting that the emphasis had to be on deterrence, denunciation and protection of the public when sentencing in methamphetamine cases, particularly if there were aspects of commerciality or supply.  While noting that the supply “was not great” and that the quantities involved indicated the offending was at a relatively low level, the Judge remained of the view that a final sentence of two years three months imprisonment should be imposed.

[9]       Addressing the recommendation in the pre-sentence report and the additional summary charges, the Judge said:

[10]  There can be no doubt that the matters in the pre-sentence report do shift the emphasis towards rehabilitation, but I was presented a few days ago with a number of summary charges which I cannot overlook.  Those charges indicate to me quite clearly that you are a person who has little, or scant regard for the norms of society and the prohibitions that have been imposed in respect of drug use.  You had a pipe for the consumption of methamphetamine.  You had cannabis.  You had LSD.  You had a pipe for smoking the cannabis, and you also had a prescription medicine, namely Halcion.

[11]  All that, in my view, prohibits me from considering a sentence of home detention.  It is my view that you are so enmeshed in the drug culture and so careless of the prohibitions and norms of society that to impose other than a denunciatory and deterrent sentence would be contrary to good reason.

[10]     The Judge imposed the sentence of two years and three months imprisonment on the charge of supplying methamphetamine, a concurrent sentence of three months imprisonment on the charge of simple possession of methamphetamine and concurrent charges of two months on each of the summary charges.

Sentence manifestly excessive

[11]     Mr Wintour accepted that the charge of supplying methamphetamine fell within category 1 of the tariff decision of this Court in R v Fatu [2006] 2 NZLR 72 which would indicate a starting point of between two and four years imprisonment. He submitted that the appropriate starting point was two years and observed that the appellant had no previous drug convictions and only a minor criminal history. Mr Wintour further submitted that the guilty plea was entered on the same date that an amended indictment and agreed summary of facts was filed and that the appropriate discount should have been close to 33 per cent. On that basis, he submitted that a sentence of 16 months imprisonment was indicated.

[12]     Mr Wintour developed his submission that a sentence of home detention ought to have been imposed.  He emphasised the appellant’s responsibilities towards her child, her relatively minor criminal history and her strict compliance with bail terms.

[13]     Ms Jelas for the Crown submitted that the offending had a commercial element and that the starting point of three years was within the range available to the Judge.  Personal circumstances may be relegated in importance in relation to drug offences (R v Wallace [1999] 3 NZLR 159 at 167) and the 25 per cent discount was appropriate (referring to R v Walker [2009] NZCA 56 at [19]).

[14]     Ms Jelas also referred us to two recent decisions of this Court in R v Walker [2008] NZCA 145 and R v Hughes [2007] NZCA 73 in which starting points of three years six months and three years respectively were upheld for relatively small quantities of methamphetamine.

[15]     As this Court stated in Fatu at [31], where an offender fits within a particular band will depend on a range of considerations. The quantity and purity of the drugs involved are two factors but the role played by the offender is also relevant. The extent of any on-going commercial supply of drugs is often difficult to establish and sometimes may only be inferred from limited facts. In the present case, the actual quantity of methamphetamine found in the possession of the appellant was only .279 grams. The $1400 in cash found in the appellant’s possession suggests the sale of a further 14 point bags of methamphetamine which could amount to a further 1.4 grams. The presence of a number of other used and unused point bags was an indicator of recent dealing on a modest scale.

[16]     The appellant pleaded guilty to a representative count of supplying methamphetamine to unknown persons over the period 1 January 2005 to 31 December 2007.  That period of time was apparently selected because the appellant had admitted having been a dealer previously but having stopped dealing when she became pregnant.  That could have been around February 2007.

[17]     All this is unsatisfactory because it is very difficult to assess the period of time over which the appellant may have been dealing prior to her arrest on 31 December 2007.  The only safe conclusion on the available material is that she was dealing in methamphetamine at a modest level over a unspecified period of time prior to 31 December 2007.  In the absence of any finding of fact by the Judge it would be unsafe and unfair to assume that the offending was on a sustained basis over the period covered by the indictment.  It may only have been for a brief period or periods.

[18]     In the circumstances, we consider that a starting point towards the lower end of Band 1 in Fatu was appropriate.  This should not have exceeded two or perhaps two and a half years.  Given that the appellant had no relevant prior convictions there was no basis to increase the starting point and the summary matters were in the nature of “wash-up” charges which would not have required any material increase above the starting point.  On the other hand, her obligations towards her very young child are, at least in the circumstances of this case, a relevant factor which would have warranted a reduction in the starting point of up to six months. 

[19]     On that basis, a sentence of two years imprisonment before any discount for the guilty plea would have been appropriate.  We accept the Crown’s submission that a reduction of 25 per cent was justified for the guilty plea.  The appellant did not plead guilty at the earliest opportunity.  She was committed for trial in September 2008 and attended a first callover thereafter on 9 December 2008.  At that time she sought a sentencing indication which was not given until 22 April 2009.  The Crown then filed an amended indictment (which reduced the charges to an extent) along with an amended summary of facts.  She then pleaded guilty after the sentencing indication.  In all the circumstances, the 25 per cent deduction is appropriate.

[20]     The end result is that the sentence should have been 18 months imprisonment.  We are satisfied that a sentence of two years three months was therefore manifestly excessive. 

Home detention and the sentencing indication

[21]     Despite the appellant’s obligations towards her daughter, we are not disposed to interfere with the Judge’s discretion to decline home detention.  Although the appellant frankly admitted her offending, the probation officer records in the pre-sentence report that she showed no evidence of remorse or insight into her offending.  On the night in question, she had left her child at a friend’s house while she and another friend went out socialising.  She admitted that her intention was to “get high” and that she was associating that evening with a heavy user of methamphetamine.  Given the environment in which the appellant was living at the time of her arrest, we treat with some circumspection the probation officer’s assessment that she was at a low risk of reoffending.  We inquired of counsel as to the current care arrangements for the appellant’s child while the appellant is in custody.  We were informed that the child is being cared for by a friend. 

[22]     In all the circumstances, the Judge was right to give weight to the factors of denunciation and deterrence and a sentence of imprisonment was appropriate.

[23]     The Judge referred to the possibility of home detention when giving the sentence indication but this was qualified by his reference to matters which might emerge from the pre-sentence report.  In the end, he did not depart from the indicated prison sentence of two years three months despite the additional summary charges which were before him by the time of the actual sentencing.  Plainly, the existence of the additional charges swayed him away from home detention.  There is no evidence before the court that the appellant pleaded guilty because the possibility of home detention was raised.

[24]     Before leaving this topic we note the desirability of ensuring that all available materials are before the Court before a sentencing indication is given.  Where other charges are pending, it will usually be desirable for the summary of facts in relation to all charges to be placed before the Court when it is intended that the defendant would, in the event of a guilty plea, be sentenced on all matters together.

Result

[25]     For the reasons given, the appeal is allowed.  The sentence of two years three months imprisonment on the lead charge of supply of methamphetamine is quashed.  A sentence of 18 months imprisonment is imposed in substitution on that charge.  The concurrent sentences imposed on the remaining charges remain undisturbed.

Solicitors:

Crown Law Office, Wellington