The Queen v Shane Growcott

IN THE COURT OF APPEAL OF NEW ZEALAND

CA147/02

THE QUEEN

SHANE GROWCOTT

Hearing:	30 July 2002
Coram:	Gault P Robertson J Paterson J
Appearances:	C P Brosnahan and D Goodlet for Appellant B J Horsley for Crown
Judgment:	31 July 2002

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

Shane Growcott appeals against the sentence of 12 months periodic detention and a fine of $20,000 imposed upon him in the High Court at New Plymouth on 18 April 2002.
Mr Growcott was sentenced having been convicted of a charge that on 23 March 2000 he had in his possession a precursor substance, namely pseudoethydrine with the intention to use that substance for the manufacture of a Class B controlled drug, namely amphetamine contrary to s12A(2) of the Misuse of Drugs Act 1975.
The appellant was found guilty at trial before a Judge and jury. He had also been charged with attempting to manufacture the Class B controlled drug amphetamine but was discharged on that count under the provisions of s347 of the Crimes Act 1961 during trial.
It appears that, at the time of sentencing, there were substantially varying views as to the involvement of Mr Growcott in what had occurred.
The sentencing Judge, who had presided at the trial, noted
[4] The charge arose out of a police search of a property of a friend of yours which you just happened to be on. A bag was found in an implement shed which contained 299 blister packs of this precursor, effectively 4,485 tablets. Evidence indicates this would yield 199 grams of amphetamine and while the police originally considered the total value would have been somewhere in the region of $35,000.00 it now transpires this was overstated and the true figure is nearer $17,000.00. The Crown regards such volume and worth as a significant factor. It also submits your degree of participation was considerable. It also submits I should have regard to your involvement with one of the local motorcycle gangs and my attention has been drawn to your previous drug convictions.
[5] I will deal with these so-called aggravating features first because it seems to me whatever the principle laid down by the Court of Appeal with which I entirely concur, every person is entitled to be sentenced on the facts substantiated by the evidence in a particular trial before the Court. I accept the value of the material found was approximately $17,000.00. I do not accept the evidence established the degree of participation sought for by the Crown. My memory of the evidence is a suggestion you visited I think two pharmacies in New Plymouth. However the identification evidence respect of such visits was not particularly strong. I think in all you were proved to be involved in purchasing something in the vicinity of four, five of the so-called blister packs. There is no evidence before me which suggests you were involved in the purchasing of the remaining 4,400 odd packs. The evidence which came before me was as a result of a wide canvas of chemists in the area, showing of photos I think in a montage or otherwise, so if you had been involved I am certain somebody would have come forward and identified you. So therefore I will be sentencing you on the basis your degree of participation in the actual purchasing of the packets has not been established to a degree greater than that which I have already mentioned. …

Mr Brosnahan argues that the proper extension of the reasoning of the High Court Judge was that it was only established that Mr Growcott was involved in purchases from one pharmacy at Waverley and one at Patea and that in fact he was in possession of 2 blister packs not even the 4 or 5 referred to in the sentencing note.
When he was initially charged with the 2 offences on which he stood trial, Mr Growcott was granted bail. While on bail he was arrested on unrelated matters, one of which was possession of metamphetamine. Because this meant there was alleged offending while on bail, he was remanded in custody. When the substance which he had possession of in that charge was analysed, it was found to be innocuous. Police opposition to bail was discontinued but this was only after he had spent two and a half months in custody.
It is now argued by the appellant that the sentence imposed was manifestly excessive because
(a)The appellant had been willing at a very early stage in the proceedings to enter a guilty plea to the charge he was convicted upon but the Crown insisted that there had to be an acknowledgement that the offending occurred within the concept of a small commercial operation and in the absence of that the matter was forced to trial.
(b)The level of the Appellant’s involvement was only 2 blister packs of precursor substance. The High Court Judge specifically rejected the Crown’s contention that the Appellant had possession of any of the further 229 blister packs found.
(c)The Appellant had spent 2-1/2 months on custodial remand as a consequence of this charge.
Although acknowledging that the maximum term of imprisonment is 5 years, it was contended for the appellant that this offending was at the lower end of the scale because of the small amount of the substance, his willingness to enter a plea of guilty at an early stage and the period during which he was denied his liberty.
Particular reference was made to the decision of Young J in R v Cole (T45/99 Christchurch Registry, 11 August 1999), although we note that the Judge there was dealing with a charge laid summarily which involved a maximum sentence of only one year’s imprisonment or a fine of $1,000 or both.
Mr Brosnahan also referred to the decision of this Court in R v Orchard (CA162/01 28 August 2001) and to various other decisions in the High Court. Little assistance is to be gained from them, for in those cases the charges under this section of the Misuse of Drugs Act were being dealt with alongside more serious charges and so almost inevitably concurrent custodial sentences were imposed.
The Crown submitted, however, that the appellant was fortunate to have been dealt with other than by a full-time custodial sentence. Mr Horsley placed particular emphasis upon the reason of this Court in R v Fitzgerald (CA456/00, 22 March 2001).
That case involved a conviction under this section by a 32 year old woman with dependency problems and a long list of previous convictions. Her appeal against conviction was successful. The Court declined to order a new trial. It noted that the appellant had been sentenced to 12 months imprisonment and had already served 2 months before being granted bail. While noting her list of previous convictions, the Court was substantially influenced by the vulnerable position of a 15 year old daughter who was in the appellant’s care. The Crown, however, stressed that no overt criticism was made by this Court of the fact that Ms Fitzgerald had been sent to prison or the length of the sentence.
The Crown also noted that it was apparent from the pre-sentence report in this case that this appellant had assets available to meet a substantial monetary penalty and that, in light of his previous convictions and the need for deterrence, it was essential that a penalty which had some bite was imposed.
We acknowledge that there is a difficulty in this case in that the learned Judge, having rejected the Crown’s submission as to the factual position, and having noted that there were previous drug dealing convictions but not since 1988, and having drawn attention to the 2 ½ months spent in custody, concluded:
… I am far from satisfied, indeed I am not satisfied, your involvement was other than in a peripheral way and there is certainly nothing to establish you were involved in a pre-making or activities involving the pre-making of drugs of speed on this property. I pay particular heed to the fact you have not been in trouble over the last two years and indeed I comment it seems ridiculous a charge of this nature must wait more than two years before it comes to the Court.
[9] Overall I think this is a case where I can give you some lenience, taking into account also of course the indication you were prepared to plead guilty to the charge of which you were ultimately convicted. Having regard to all these matters you are sentenced to 12 months periodic detention. You are fined $20,000.00. Payment must be made within 28 days.
We are not persuaded as to the unarticulated reasoning of this experienced Judge who had been closely involved with this file. On the basis of his unambiguous findings, a fine at the level imposed together with periodic detention to the statutory maximum is out of proportion to the culpability which the Judge said he was satisfied had been established.
This is serious offending and is to be treated seriously, but bearing in mind that this man had already been without his liberty for some 2 ½ months, we are of the view that a fine and periodic detention at the level imposed are manifestly excessive.
We accept, as is implicit in what the sentencing Judge said, that Mr Growcott was to be viewed as more than a mere “goffa” for the 2 blister packs which it was established that he purchased, particularly when all the circumstances are considered including the other blister packs which had been acquired and the fact that Mr Growcott was concealing 2 computer discs on himself which, on analysis, were revealed to contain information concerning the manufacture of amphetamine.
There is an additional problem about the sentence and the substantial fine which was imposed.
There was a passage in the pre-sentence report:
As mentioned Mr Growcott resides with his partner of 3 years. He says he is in reasonable physical health and there is no indication of mental health issues. He receives an unemployment benefit but has supplemented this [until the imposition of his current strict bail conditions] with buying, repairing and re-selling cars, and occasional work for farmers such as Mr Langridge. He indicated that he had access to cash assets and resources that he could accumulate which would total approximately $30,000, if the Court wished to impose a monetary penalty.
We are now more fully informed by appellant’s counsel (and the explanation is not disputed by the Crown) about the financial position. After conviction, the Crown opposed bail pending sentence. It was drawn to the Court’s attention that, through the equity in the partner’s home, up to $30,000 could be available as a surety for bail. We are told that this unemployed man in fact has no liquid assets. Mr Brosnahan argued that he would be able to raise funds through the partner’s equity to pay the “moderate fine” which he had urged the sentencing Judge to impose and then, by servicing that loan, he would meet the financial penalty.
We are not persuaded that this is a case where there is proper material which would justify a fine of any substance being imposed. When dealing with an unemployed man without assets, the risk is that the fine will fall on the shoulders of another and not have a deterrent effect as far as the wrong doer is concerned.
We are also concerned at the imposition of a sentence of 12 months periodic detention which is the maximum permitted under the Act. The Court is often advised that very lengthy periodic detention sentences become counter-productive. In our judgment, a sentence of that length needs to be reserved for the truly exceptional case and the findings of the sentencing Judge take this matter outside of that ambit.
The appeal is allowed and the penalties imposed are quashed.
In light of his previous history of offending, this 40 year old man must understand that his continuing criminal behaviour will be sternly responded to. The penalty must also send a message to others who are tempted to get near the drug scene in this manner that they will not escape with a nominal penalty. Bearing in mind the 2 ½ months spent in custody, the appellant is now sentenced to 6 months periodic detention. He will report to the Periodic Detention Centre at New Plymouth on Friday 2 August 2002 and thereafter as directed by the Probation Officer. We certify the maximum hours required to be served in any week will not exceed 10.

SOLICITORS

Debbie Goodlet, Wanganui

Crown Law Office, Wellington

[2002] NZCA 184

31 July 2002