The Queen v Reedy

[2006] NZCA 23

IN THE COURT OF APPEAL OF NEW ZEALAND

CA329/05

THE QUEEN

v

SHANNON MOKENA POTAE REEDY

Hearing:6 March 2006

Court:Glazebrook, Wild and Venning JJ

Counsel:R G Glover for Appellant

S B Edwards for Crown

Judgment:8 March 2006 

JUDGMENT OF THE COURT

THE APPLICATION FOR AN EXTENSION OF TIME TO APPEAL IS REFUSED.

____________________________________________________________________

REASONS

(Given by Wild J)

[1]        By notice filed on 6 September 2005 Mr Reedy appealed against a sentence imposed on him by Panckhurst J in the High Court at Invercargill on 9 December 2004.  Although the appeal is directed against that sentence, it is essentially against the seven years and three months totality of that sentence plus sentences earlier imposed on Mr Reedy by Panckhurst J on 1 April 2004 and Chisholm J on 12 September 2003.  All those sentences were imposed in the High Court at Invercargill.  All arose out of the same drug dealing enterprise instigated by Mr Reedy and carried on with co-offenders.

[2]        As Mr Reedy’s appeal was some nine months out of time, he needed an extension of time to appeal, which he sought by application filed on 27 January 2006.

[3]        His explanation for his delay in appealing is stated in his leave application as follows:

Following sentence in December 2004 the appellant requested papers from his trial lawyer, however there was a delay in receiving these and copies were finally obtained in June 2005 direct from the Invercargill High Court.  The appellant then postponed his application to appeal pending a Parole Board hearing on 23 August 2005.  This was unsuccessful.  The appellant now wishes to pursue his appeal against sentence.

[4]        This is uncompelling.  First, the explanation should be in an affidavit.  Secondly, it does not state when Mr Reedy requested the papers from his trial lawyer (not his counsel on this leave application).  Third, it admits to a “wait and see” attitude in relation to the Parole Board.  Although that may have been pragmatic, there is no logical connection between the correctness or otherwise of the total sentences imposed and the Parole Board’s decision, whether or not to release the appellant on parole.

[5]        Given the long delay and the inadequate explanation for it, the application for an extension of time to appeal is refused.  In any event, the appeal is wholly without merit.

[6]        Mr Glover accepted that he could not responsibly criticise either sentencing Judge for failing to have the totality principle in mind or for accumulating sentences on charges which were separate and distinct from one another when such was the case.  He also acknowledged that he could not challenge, as manifestly excessive, any of the individual sentences imposed although he contended that the four years for possession of cannabis for supply was harsh.  Mr Glover’s submission was that, nevertheless, one is left with an uneasy feeling that, overall, the end sum of a number of discrete and fairly imposed sentences, because of the piece-meal way in which they were imposed, amounts to a total sentence which infringes the totality principle and is oppressive.

[7]        The sentences sought to be appealed are helpfully summarised by the Crown in the schedule which we annex to this judgment.

[8]        Chisholm J sentenced Mr Reedy on five charges to which he had pleaded guilty.  There was a mistrial on other charges.  Mr Reedy changed his plea on those other charges to one of guilty at the start of his re-trial before Panckhurst J, and the jury found him guilty on two further counts, including conspiring to defeat the course of justice.  The jury were unable to agree on a charge of possession of the Class A drug LSD for supply.  The first sentencing by Panckhurst J, on 1 April 2004, was on the charges to which Mr Reedy had pleaded guilty or the jury have found him guilty.

[9]        The re-trial on the LSD for supply charge resulted in a guilty verdict and the second sentencing by Panckhurst J, on 9 December 2004, followed.

[10]     In sentencing Mr Reedy on 1 April 2004 Panckhurst J said this:

[8]       The present crimes are part of the same series although some of them are different in kind.  I am required to make an assessment of by how much your present sentence should be increased.  That means that I have to try to assess the overall criminality for everything, what you were sentenced for in September and what you are for sentence for today, because I must apply what is called the totality principle and ensure that you do not receive a sentence which is disproportionate to that overall criminality.  That is a real risk where there are two separate sentencings which is the case with you.

[11]     There could be no more precisely accurate statement of the totality principle in practical operation.  When again sentencing Mr Reedy on 9 December 2004, Panckhurst J said these things:

[4]       …  In your case, Mr Reedy, I have the additional problem that last year Chisholm J sentenced you to five years imprisonment.  I have added 18 months to that last time, and now I have to decide whether that sentence has to be topped up again in light of this further conviction.

…

[8]       …  it seems to me that I must approach it on the basis that the Crown has suggested, that you were in possession of a significant commercial quantity of LSD, the exact amount of which I cannot determine but it is a figure approaching 2000 trips.

…

[11]     There are some positive things both in your pre-sentence report and also in some additional material that has been made available to me by your counsel today.  I will take such account of those positives as I can.  The problem is, Mr Reedy, this is a Class A drug and you haven'’ been sentenced in relation to that drug to date.  It’s a substantial quantity even if I can’t determine the amount exactly.  People who deal in LSD, as you know, are for the high jump.

[12]     I agree with Ms Thomas that I have to increase your sentence.  I have agonised a good deal about how much I should increase it by and I have decided to increase it by a minimal amount of nine months.  What that conveys is that had you been sentenced on this charge at the outset a likely term would have been somewhere from six years up.  In that regard I note for example that the Court of Appeal in a case R v Patel (CA 134/97, 28 July 1997), imposed a sentence of seven years imprisonment, on appeal, in relation to importing LSD where there were 3000 odd tablets involved.  That to my mind provides some indication of the range of sentence for this sort of LSD offending.

[12]     As Mr Edwards points out for the Crown, in those comments Panckhurst J confronts the difficult situation of having to sentence Mr Reedy on the third and last occasion, for the most serious offence of which he had been convicted, namely dealing in the Class A drug LSD.  What Panckhurst J did was to check the seven year three month total sentence which would result from his adding the nine months he proposed, against the lead sentence that would appropriately have been imposed on that LSD dealing charge had Mr Reedy been sentenced for all his offending at the same time.  The Judge’s reference to the seven year term imposed by this Court in R v Patel CA134/97 28 July 1997 for dealing in a not incomparably larger quantity of LSD (“3000 odd tablets”) satisfied the Judge that the total seven year and three month sentence appropriately reflected the totality of Mr Reed’s offending.  We agree.  In addition to Patel there is this Court’s decision in R v Williams CA64/91 6 December 1991 where a sentence of six years nine months imprisonment was substituted where the appellant had been found guilty on four counts involving a total of 1700 LSD tablets.  Two of the counts involved importing.  Further cases are referred to in Williams, including R v Wrenn, Ross and Thomas (1989) 4 CRNZ 165  where an effective 10 year sentence (the nine and a half years imposed took into account the six months spent in custody) was upheld for the principal offender found guilty of being in possession for supply of 9600 LSD tabs with an estimated street value of $380,000.

[13]     Accordingly, there is no need for us to go into the detail of the offending as did the sentencing Judges.  For example, we need not go into what the Crown termed the “cowardly” attempt by Mr Reedy to persuade his 17 year old prospective brother-in-law to “take the rap” for seven pounds of cannabis (the conspiracy to defeat the course of justice charge).  Nor need we comment on the fact that much of Mr Reedy’s drug dealing took place in his home, and involved numerous telephone conversations within earshot of his children.

[14]     To summarise, in addition to being months out of time without acceptable explanation for the delay, the proposed appeal lacks any merit.  The totality principle was carefully considered and scrupulously adhered to by both sentencing Judges, in particular Panckhurst J who primarily had to apply it.  Accordingly, the application for an extension of time to appeal is refused.

Solicitors:
Crown Law Office, Wellington

Shannon Mokena Potae REEDY

SCHEDULE OF CONVICTIONS/SENTENCES

Date of Sentence	Offence	Particulars	Plea	Starting Point	Sentence
12/09/03	Possession of Class C (cannabis) for supply (s 6 (1) & (2)(c) Misuse of Drugs Act 1975 – maximum penalty 8 years imprisonment) Possession of Class B (MST) for supply (s 6 (1) & (2)(b)- maximum penalty 14 years imprisonment) Possession of cannabis for supply (s 6(1) and (2)(c) – maximum penalty 8 years imprisonment) Possession /sells Class B drug (MST) (x2) (s 6 (1) & (2)(b)-maximum penalty 14 years imprisonment)	7 lb, 3oz found in the ceiling of father-in-law’s house - estimated value $30,000 - $35,000. At least 28 MST Tablets – known proceeds of sale from two transactions $1,140 52 foils (estimated value $1,040) and 6 oz cannabis (estimated value $2,100). The two transactions referred to above	Pleaded guilty “at a late stage” (just prior to trial 02/09/03). As above As above As above	5 years 18 months N/A N/A	a)   4 years. b)     1 year cumulative on a). Convicted & discharged. Convicted & discharged.
01/04/04	Conspiring to defeat the course of justice (s 116 Crimes Act 1961- maximum penalty 7 years imprisonment)	Conspired to have 17 year old brother-in-law accept responsibility for the 7 lb, 3oz of cannabis found in the ceiling.	Convicted at trial.	N/A	c)    9 months cum. on b).
01/04/04 (Continued)	Conspiring to commit the offence of manufacturing a (then) Class B drug (methamphetamine) (s 6 (1) & (2A) (b) – maximum penalty 10 years imprisonment) Sells cannabis Sells cannabis Sells cannabis Sells cannabis Sells cannabis Possession of cannabis for supply (all s 6 (1) and (2)(c) – maximum penalty 8 years imprisonment)	Recruitment of shopper to purchase tablets containing pseudoephadrine for a contact in Gisborne to use in the manufacture of methamphetamine. Sale of 1 lb a day over 1 month period (exaggerated). Sale of 3 lb for $12,000. Sale of 4 oz (on tick; payment to be made through TAB account). Several oz exchanged for truckload of firewood. 1 oz  sold for $380. 3 lb cannabis exchanged for Ford Fairlane car.	Pleaded guilty at commencement of trial.       Convicted at trial Pleaded guilty at commencement of trial. Pleaded guilty at commencement of trial. Pleaded guilty at commencement of trial. Pleaded guilty at commencement of trial. Pleaded guilty at commencement of trial.	N/A	d)   9 months cum. on c) for all seven charges.
09/12/04	Possession of Class A drug for supply (LSD) (s 6 (1)& (2) (a) – maximum penalty life imprisonment)	Amount unable to be determined – held to be in the vicinity of 2000 trips. (Evidence was given at trial that a single ‘trip’ would sell for between $30–50, giving approx value of between $60,000 - $100,000).	Convicted at re-trial.	N/A	e)   9 months cum. on d)