The Queen v Paul Charles Noble

[2003] NZCA 49

IN THE COURT OF APPEAL OF NEW ZEALAND

CA351/02

THE QUEEN

v

PAUL CHARLES NOBLE

Hearing:18 March 2003

Coram:Blanchard  J
Robertson J
William Young J

Appearances:  No appearance for Appellant

M A Woolford for Crown

Judgment:18 March 2003 

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]       The appellant pleaded guilty at depositions to six charges of drug related offending under the Misuse of Drugs Act 1975 and was sentenced in the High Court at Auckland to an effective term of four years imprisonment.  One of the charges was of possession of cannabis for supply, one of possession of methamphetamine, one of possession of cannabis, one of possession of a precursor substance and two of cultivating cannabis.  The appellant now appeals his sentence.

Background

[2]       The charges arose from two separate police searches carried out at the appellant’s residence in Pakuranga, Auckland. The first search was undertaken by the Auckland Drug Squad at approximately 12.45pm on 7 November 2001 pursuant to a search warrant. On entering the premises police encountered a group of five persons, including the appellant, seated around a table. On the table was a small plastic bag and a glass pipe, both containing traces of methamphetamine, and approximately 850 pseudoephedrine-based tablets, commonly used in the manufacture of methamphetamine. A further investigation revealed a small cannabis growing operation in the garage, which included 14 cannabis plants at various stages of maturity and a plastic bag containing 193.5 grams of cannabis leaf. In the kitchen area the police found a large bag of cannabis seed, six zip-lock bags each containing cannabis with a street value of $400 to $500 (total weight 174 grams) and 16 smaller bags with between 3.9 and 4.4 grams of cannabis (street value approx $100) in each (a total of 68.6 grams).

[3]       The appellant was at this time on parole from a three year term of imprisonment for cannabis related offending.

[4]       The second search took place on 3 December 2001 when the appellant was on bail in relation to the above charges. The police had been called to the appellant’s residence to attend a domestic incident when they observed six cannabis plants, between five and 10 centimetres in height, in the back yard. The appellant disclaimed ownership of these saying that a friend had placed them at his property. On further investigation, the police found two bags of dried cannabis, one weighing 37 grams and the other 28 grams, a hydroponic nutrient salts meter, a set of digital scales and several small snap lock bags commonly used for distribution. The appellant was subsequently charged with possession and cultivation of cannabis in respect of this matter.

The High Court decision

[5]       The Judge’s notes record a careful and reasoned approach to sentencing. The Judge began by referring to the relevant sentencing principles, then highlighted the aggravating and mitigating features of the case. The aggravating features were that the appellant was on parole at the time of the first offending, on bail at the time of the second offending and had a number of drug related convictions dating back to 1991. The main mitigating factor was the appellant’s early guilty plea. The Judge gave little weight to the appellant’s protestations of remorse and his desire to rehabilitate, observing that he had absconded from Odyssey House after being admitted as a condition of bail in respect of the current changes on 31 May 2002. Bail had been allowed after the appellant had voluntarily sought to undergo the rehabilitation programme offered at Odyssey House.

[6]       The Judge also made reference to the relevant authorities, noting that the present offending was in the second category articulated in R v Terewi [1999] 3 NZLR 62 which required a starting point of between two and four years. This category was for small-scale commercial operations involving cannabis. R v Paenga (CA433/95, 25 March 1996) was also referred to. In this case a sentence of two and a half years imprisonment was upheld following a guilty plea in respect of 370 grams of cannabis worth between $4,500 and $6,000. The appellant in Paenga also had previous convictions for drug related offences. The Judge observed that the quantity of cannabis possessed by the appellant in this case was higher (435 grams).

[7]       In relation to the offending on 7 November 2001, the Judge imposed a term of three years imprisonment for the cultivation of cannabis offence. A starting point of two years was adopted, which the Judge noted was at the bottom of the range referred to in Terewi. This was increased to four years in light of the aggravating features, and a credit of one year was given for the guilty plea. Sentences for the other three charges were to be served concurrently. A sentence of three years imprisonment was imposed for possession of cannabis for supply, one month for possession of methamphetamine and six months for possession of a precursor substance.

[8]       In relation to the offending on 3 December 2001, a sentence of one years imprisonment was imposed for the cultivation offence, to be served cumulatively. The Judge noted that this offence could have justified a sentence of three years imprisonment but, having regard to the totality of the offending, an overall sentence of four years was appropriate. A sentence of one months imprisonment was imposed for the possession of cannabis, to be served concurrently.

Arguments on appeal

[9]       Mr Comeskey, instructed for the appellant, took the unusual and undesirable course of filing only a very brief note form submission and indicating by message to Crown counsel that he would not be presenting any oral submissions.  In his notes he accepted that the offending was within the second category of Terewi, but submitted that the appropriate starting point after taking into account aggravating factors was three years for the 7 November offending, not four. A credit of one year for the guilty plea would reduce this to two years, with an overall sentence of three years to take account of the 3 December offending. It was submitted that a term of three years more accurately reflected the totality of the offending.

[10]     For the Crown, it was submitted that  four years was not excessive for the totality of this offending by someone with a serious prior history of drug offending who was at the time on parole and then on bail.  In circumstances of repeat offending, it was open to the Judge to include a strong deterrent element in the sentence.  The only mitigating factor was the guilty plea but it was not available at the earliest opportunity despite the inevitability of conviction.

Decision

[11]     We have given this matter careful attention less the absence of proper submissions from counsel for the appellant should have caused any prejudice to his client but we are entirely satisfied that the appeal lacks merit.  Whilst we ourselves would have put more emphasis on the methamphetamine charge than the Judge did, the totality of the sentences imposed of four years, and the cumulative element, were very appropriate for a man with a prior record of drug offending who chose to do so again, with class B drug involvement, when on parole, and then abused his bail to commit further cannabis offending.  He shows no signs of making any serious effort to rehabilitate himself.

[12]     The appeal is dismissed.

[13]     We understand that an application for legal aid for the purposes of the appeal is pending before the Legal Services Agency.  The Registrar should draw this judgment to the attention of that body.

Solicitors:

Crown Law Office, Wellington