The Queen v Piper

[2006] NZCA 248

IN THE COURT OF APPEAL OF NEW ZEALAND

CA345/05

THE QUEEN

v

COLIN DAVID PIPER

Hearing:31 August 2006

Court:William Young  P, Panckhurst and Ronald Young JJ

Appearances:  R G Glover for Appellant

K J Beaton for Crown

Judgment:12 September 2006 at 11 am

JUDGMENT OF THE COURT

A        THE APPEAL IS ALLOWED.

BThe concurrent sentences of four years imprisonment are quashed, and concurrent terms of three years are substituted.

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REASONS OF THE COURT

(Given by Panckhurst J)

[1]       Following trial Mr Piper was convicted upon charges of possessing both the Class B controlled drug Ritalin and the Class C controlled drug cannabis for the purpose of supply.  He was sentenced by the trial Judge, Judge Abbott, to four years imprisonment.  This appeal is against both conviction and sentence.

[2]       The conviction appeal, however, was not pursued.  The sole ground advanced was that the Judge erred in relation to directing the jury as to the meaning of beyond reasonable doubt.  This argument was effectively precluded by delivery of the decision in R v Wanhalla CA321/05 24 August 2006.  In these circumstances the appeal against conviction is dismissed.

[3]       The sentence appeal was advanced on an equally narrow footing.  Mr Glover did not contest the approach and reasoning of the Judge in imposing sentence.  The approach was to identify the appropriate sentence for the cannabis and Ritalin offending, and to increase the total sentence in accordance with the Ward principle, because Mr Piper is a recidivist drug offender (R v Ward [1976] 1 NZLR 588 (CA)). While accepting the appropriateness of this methodology, Mr Glover argued that the end sentence of four years was clearly excessive.

[4]       What are the facts?  The police stopped a car and searched the occupants pursuant to the Misuse of Drugs Act.  Mr Piper was a passenger in the vehicle.  His wallet was found to contain 37 20 mg Ritalin tablets.  An internal pocket in his jacket contained one plastic bag with 9.1 grams of loose cannabis head and in a second plastic bag 32 tinnies of cannabis.  There was also a cannabis pipe in another pocket of the jacket (which resulted in a charge to which Mr Piper pleaded guilty).  Later a separate 10 mg Ritalin tablet was also found in Mr Piper’s possession. 

[5]       The total weight of the cannabis was 26.6 grams.  Evidence was given at trial, which the Judge accepted for sentencing purposes, that the cannabis had a street value of $650 and the Ritalin tablets $1,100, producing a total of $1,750.  When questioned, Mr Piper said that he had purchased the Ritalin tablets at $25 each for his own use, but he proffered no explanation in relation to the cannabis.

[6]       Given the way in which the appeal against sentence was advanced we can proceed direct to our analysis of the merits.  In the course of his sentencing remarks the Judge said this:

[12]     Indeed, as Mr Glover acknowledged when I put the proposition to him, a first-time presumptive drug dealing offender facing sentence for offending of this degree of seriousness following a trial could probably expect a sentence of imprisonment for approximately two years, that being in terms of the Court of Appeal decisions in R v Terewi [1999] 3 NZLR 62; (1999) 16 CRNZ 429 and R v Wallace & Christie [1999] 3 NZLR 159; (1999) 16 CRNZ 443.

At that point the Judge turned attention to Mr Piper’s offending record, and in particular the issue of by how much the sentence needed to be adjusted upwards in terms of the Ward principle.  The Judge concluded that four years imprisonment on each of the possession for supply charges was appropriate, such terms to run concurrently.

[7]       We do not differ from the Judge’s assessment that these offences, if committed by a first-time offender, would have warranted a sentence of two years imprisonment, following trial.  In this regard the quantities involved were largely determinative of the appropriate term of imprisonment. 

[8]       Accordingly the real issue in this appeal is the extent to which the sentence could be increased, as a matter of principle, on account of the appellant’s past record.  The Judge noted that Mr Piper had five previous convictions for drug dealing.  Judge Abbott had sentenced him on 6 December 2000 to five and a half years imprisonment for “very serious cannabis dealing”.  At the age of 49 years, and again before the Court on drug dealing charges, we accept the Judge’s description that the appellant has “a very bad record”.  We also agree that it was a case where denunciation and protection of the community had to “loom large in the sentencing process”. 

[9]       But was a doubling of the sentence justified?  This Court said in Ward at 591:

It cannot be denied that it has long been considered proper for a court when dealing with the class of offender we are discussing to enlarge the period of confinement beyond that which it would give the offender had he not had a history of persistent offending and were it not thought necessary to protect the public from his depredations.  But at the same time the courts have struggled to ensure, in the words of Sir Michael Myers CJ, that the sentence imposed bears “some relation to the intrinsic nature of the offence and the gravity of the crime”.

Hence a balance must always be struck.  An increase to the penalty otherwise appropriate is permissible, but not to the point where the end sentence is out of balance with the gravity of the offending.

[10]     Here, Ms Beaton characterised the four year sentence as stern, but available, once the dominant sentencing consideration of protection of the public was placed in focus.  We disagree.  The starting-point adopted by the Judge of two years could, we think, be increased by no more than one year in terms of the Ward principle.

[11]     The appeal is allowed.  The concurrent sentences of four years imprisonment are quashed, and concurrent terms of three years are substituted.

Solicitors:
Crown Law Office, Wellington