The Queen v Rex Stephen Ashley

[2000] NZCA 6

IN THE COURT OF APPEAL OF NEW ZEALAND CA451/99

THE QUEEN

V

REX STEPHEN ASHLEY

Coram:	Thomas J Keith J Blanchard J
Decision: (ex parte)	3 February 2000

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. The appellant was found guilty in the District Court at Christchurch on a charge of manufacturing a Class B controlled drug, namely morphine.  He was sentenced to imprisonment for a term of six years.  At the same time Mr Ashley was given concurrent sentences for three other offences: permitting premises to be used for the morphine manufacture (two years), cultivating cannabis (one year) and possession of instruments (six months).

2. The appeal relates only to the six year sentence.  In respect of that it is said that it was the result of an error of law by the sentencing judge and is manifestly excessive.

3. Mr Ashley applied for legal aid to conduct his appeal.  The Registrar declined this application after the usual process of consultation.  As a result this appeal has been determined on the basis of written submissions filed by Mr Ashley. 

4. The facts of the case are as follows.  Between 19 June and 24 July 1998 Mr Ashley rented a small industrial property in Christchurch.  On 24 July the police raided the property and seized a variety of equipment and materials used for the manufacture of morphine from codeine-based analgesic tablets in a process called ‘homebaking’.  The seized items included many utensils bearing traces of a white powder and three jars containing brown liquid.  Laboratory tests confirmed that the white power was codeine and the brown liquid (“pour off”) was unreacted codeine, one of the common by-products of the process whereby the codeine is converted into morphine.

5. The Crown case established that Mr Ashley and at least one other person had been manufacturing morphine on a large scale for the term of the tenancy.  Evidence of the size of the operation came largely from the amount of codeine present in the pour off, which was 16,000mg.  Mr Rodney Norris, the ESR scientist who gave unchallenged evidence on this point, stated that this represents the codeine from around 2700 panadeine tablets.  Mr Norris noted that this does not count the codeine that is successfully converted into morphine powder.

6. Mr Ashley pleaded not guilty to both morphine charges.  He testified that he had allowed an acquaintance to rent the property with him and that the acquaintance was fully responsible for the morphine manufacture.  Mr Ashley denied knowledge of the whole business. 

7. Unsurprisingly, the jury did not take long to reject this story which the judge in his sentencing notes described as “preposterous”.  Mr Ashley appears to have had a disagreement with his counsel over the course of the trial.  This resulted in Mr Ashley representing himself at sentencing.  The duty solicitor was present but the Judge recorded that Mr Ashley did not wish him to make submissions.

8. At sentencing the Crown submitted, and this was not contested, that around 200 panadeine tablets will make one gram of morphine and that one gram of morphine has a street value of around $3300.  On the basis that 2700 panadeine tablets had been involved the judge concluded that this was a substantial operation in which morphine valued between $40,000 and $50,000 was manufactured in five weeks. 

9. The learned judge therefore found that this case fell into the second category outlined by this Court in R v Wallace [1999] 3 NZLR 159. This category is for commercial manufacture or importation on a substantial scale reflecting sophistication and organisation extending over a period of time, though not involving massive quantities of drugs. The starting point for this category is five to eight years.

10. The appellant contends that his operation, to which he now freely admits, was not of this type.  He submits that the facts upon which the judge decided that it was were incorrect.  First, Mr Ashley alleges that he used codeine and not panadeine tablets.  In our view this is immaterial as the relevant evidence was the amount of unreacted codeine in the pour off, not its source.  We note however that the learned judge overstated the evidence when he stated in his sentencing notes that “it could be said with certainty that some 2700 tablets of panadeine or panadol had been used”.

11. Secondly, Mr Ashley now contests the evidence as to the amount of morphine that can be extracted from 200 panadeine tablets.  Mr Ashley submits that in non-laboratory conditions the yield is less than a gram.  The Crown’s evidence was not contested in the District Court and we are not prepared to revisit it.  We make the same response to Mr Ashley’s claim that the street value of morphine referred to by the sentencing judge was inflated. 

12. In short, Mr Ashley now makes detailed submissions on the precise nature of his operation and how this differed from the evidence presented to the Court.  He pleaded not guilty and ran his defence upon a particular basis.  The Court could only sentence on the basis of the evidence before it.  At any rate we are satisfied that none of the points raised affect the basis upon which Mr Ashley was sentenced. 

13. Finally Mr Ashley submits that he was at the time of sentencing addicted to morphine and that this was not made clear to the sentencing judge.  He now says he is drug free.  But again, this point does not alter the comparatively large scale of the operation and, as this Court has repeatedly said, personal circumstances carry little weight in sentencing for drug offending.

14. In conclusion, we do not agree that the judge made an error in deciding that this case fell within the second category in Wallace.  It would not appear to be the most serious example of its type, but the six year sentence reflects this.  We note that a lesser sentence has been imposed in cases where there has been a guilty plea.  See for instance R v Latta [1985] 2 NZLR 504;  R v Jacomb CA 397/95, 13 June 1995; and R v Rameka CA 18/99, 13 May 1999.  We also note the appellant’s three previous drug convictions, including one for possession of cannabis oil for supply.  The sentence was not based on an error of law and was not manifestly excessive.  Accordingly we dismiss this appeal.