The Queen v Richardson

[2008] NZCA 353

IN THE COURT OF APPEAL OF NEW ZEALAND

CA183/2008
[2008] NZCA 353

THE QUEEN

v

LYNDON VAUGHAN RICHARDSON

Hearing:25 August 2008

Court:O'Regan, Chisholm and Ronald Young JJ

Counsel:A J Bailey for Appellant

A M Powell for Crown

Judgment:8 September 2008 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       Mr Richardson appeals against the total sentence of nine years four months imprisonment imposed on him in the High Court in respect of the following charges:

(a)       Conspiring to supply methamphetamine;

(b)Possession of a methamphetamine pipe;

(c)Unlawful possession of a firearm;

(d)Unlawful possession of ammunition;

(e)Possession of precursor substances;

(f)Ten counts of receiving stolen goods.

[2]       The appeal is brought on the basis that the overall sentence was manifestly excessive. 

The sentence

[3]       The sentencing Judge, Fogarty J, convicted and discharged the appellant on the charge of possession of a pipe and imposed sentences of:

(a)       Five years and eight months imprisonment for the conspiracy charge;

(b)One year and eight months imprisonment for the firearm/ammunition charges and possession of precursor substances (concurrent with each other but cumulative on the above);

(c)Two years imprisonment for the receiving charges (concurrent with each other but cumulative on the above).

Basis of appeal

[4]       The essence of the argument put forward by Mr Bailey on behalf of Mr Richardson is that the Judge ought to have sentenced on a basis that the charges relating to the firearm and ammunition, precursor substances and receiving were all elements of the drug offending.  He said those charges ought to have been dealt with on the basis that the sentences for them were concurrent with that for the conspiracy charge but that conspiracy charge was treated as the lead charge and the sentence for it reflected the appellant’s overall criminality.  He accepted that, on appeal, the precise method by which a Judge sentences for multiple offending will be secondary to the overall outcome.  His argument was that the approach adopted by the Judge led to the imposition of a sentence which did not fairly reflect the overall criminality of the appellant’s offending.

High Court sentencing

[5]       The appellant was sentenced with seven other offenders who were involved in the same conspiracy.  Fogarty J described the conspiracy as involving “a well organised syndicate sourcing methamphetamine from Auckland, transporting it down to Christchurch, cutting some of it in Christchurch and then ongoing sales”.

[6]       He described Mr Richardson’s role as being one of the Christchurch buyers, together with two of the other parties sentenced at the same time.  He said that these three were buyers of the methamphetamine from Auckland suppliers.  Three trips to Auckland were made.  On the first trip 56 grams were purchased, on the second trip 182 grams and on the third trip 168 grams.

[7]       The methamphetamine pipe, the received goods (electronic equipment stolen from commercial premises and residences in eight burglaries), the firearm and ammunition and the precursor substances were found by the police when they executed a search warrant at the home of the appellant and his partner, who was sentenced at the same time as him.

[8]       The Judge said that the conspiracy offending came within the upper level of band 3 in R v Fatu [2006] 2 NZLR 72 (CA). He said that he took into account the other offending as aggravating features of the conspiracy count, and this led him to a starting point of ten years. From this he allowed a 10 per cent deduction to reflect the fact that the charge was one of conspiracy rather than actual dealing (following R v Te Rure [2007] NZCA 305) and then a further 33 per cent discount for the appellant’s guilty plea at the commencement of the trial, which resulted in the sentence of five years eight months imprisonment. He imposed the sentence of one year and eight months in relation to the firearm/ammunition charges and possession of precursor substances, reflecting that counsel had agreed on that figure. He did not say what starting point he had adopted, but assuming the same 33 per cent discount for a guilty plea, the starting point must have been in the region of two years six months. In relation to the receiving counts, he took a starting point of three years and again allowed a discount of one-third for the guilty plea, resulting in the two year sentence.

[9]       The Judge then considered whether there should be any reduction of the resulting sentence of nine years and four months on the totality principle.  He expressed the view that there should not be such a discount and that the sentence was appropriate overall.

Submissions

[10]     Mr Bailey’s argument is that there was an element of double counting in the additional sentence for the receiving counts because the goods to which the receiving counts related were the proceeds of drug sales by Mr Richardson, and the conspiracy sentence dealt with the drug dealing aspect of that offending.  The same could be said of the possession of precursor substances.  In addition, all of the counts other than the conspiracy itself were treated by the Judge as aggravating features in setting the starting point for the conspiracy count.

[11]     For the Crown, Mr Powell acknowledged the force of the points raised by Mr Bailey.  But he submitted that, while criticism of the methodology adopted by the Judge could be made, the end sentence was within the range available to the Judge and there was therefore no proper basis for appellate interference with the sentence imposed in the High Court.

Our approach

[12]     We accept that there may be an element of double counting in the methodology adopted by the Judge, but we are not convinced that this led to a manifestly excessive sentence overall.  If the goods subject to the receiving charge were received as the proceeds of drug sales, then the case for the 10 percent discount from the starting point adopted in relation to the conspiracy charge (to reflect that it was a conspiracy rather than actual dealing) would need to be adjusted to reflect admitted dealing by Mr Richardson, from which the stolen goods were the yield.

[13]     It is clear from the pre-sentence report that the appellant has a very poor criminal history.  He has a number of convictions for offending involving the supply of drugs and unlawful possession of firearms.  According to the pre-sentence report he moved to Christchurch in an attempt to disassociate himself from a gang with which he was previously associated in Invercargill, but it is clear that the pattern of offending established in Invercargill has not changed.

[14]     The appellant pleaded guilty at the commencement of the trial, but it was acknowledged by Mr Powell that he had indicated his willingness to plead guilty at an earlier stage, though still after his committal for trial.

[15]     To test the validity of the argument made on behalf of the appellant, we will adopt the approach suggested by Mr Bailey, and check the outcome against that reached in the High Court.  If that approach was followed, the conspiracy count would be the lead offence.  The ten year starting point would need to be increased to reflect the firearms and precursor offending and the additional criminality involved in the receiving counts.  Together these factors would justify an increase of 18 months, and there would need to be a further uplift to reflect the very poor previous offending history of Mr Richardson, which would lead to an overall starting point of 12 to 12 and a half years.  From this a small allowance is appropriate for the fact that the main offence was conspiracy rather than actual dealing, but not as great as that allowed by the Judge because of the admission that the receiving offences involved actual drug dealing.  There would then need to be a deduction for the guilty plea, but it would be unlikely that this would be at 33 per cent given that the plea happened at the commencement of the trial and the indication that a plea would be made occurred after committal.  A deduction in the region of 25 per cent is generous, and consistent with the 20 percent allowed to others who pleaded guilty during the trial. 

[16]     All that leads to a calculation in the region of nine years.  That indicates that the Judge’s assessment that there was no need for a reduction from the nine years four months he reached to reflect the totality principle was a conclusion that was reasonably open to him.

Conclusion

[17]     We conclude that the sentence was within the range available to the Judge and that he would likely have reached a similar sentence if he had adopted the sentencing approach advocated by Mr Bailey.  In those circumstances there is no basis for us to make a finding that the sentence is manifestly excessive, and the appeal therefore fails. 

Solicitors:
Crown Law Office, Wellington