The Queen v Shane Nicholas Bowen

[2002] NZCA 231

IN THE COURT OF APPEAL OF NEW ZEALAND CA171/02

THE QUEEN

V

SHANE NICHOLAS BOWEN

Coram:	Keith J Blanchard J Tipping J
Counsel:	S J Gill for Appellant
A Markham for Crown
Judgment (on the papers):	21 October 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

1. The appellant was sentenced to two and a half years imprisonment after pleading guilty to one charge of supplying the Class B drug methamphetamine, one charge of offering to supply methamphetamine, one charge of supplying the Class A drug MDA (Ecstasy) and three charges of supplying the Class B drug MDMA (Ecstasy).

2. From July to November 2001 the appellant supplied or offered drugs to an undercover constable on six occasions.  The total value of the drugs was $7,540 and of that amount $160 involved Class A supply.  On two occasions the supplies took place at the appellant’s home.  On one occasion he told the undercover officer that he had obtained the drugs direct from the “cook”.  He was cooperative and pleaded guilty at an early stage telling police that he had been dealing drugs for extra cash to purchase Christmas presents.

3. The appellant has 23 previous convictions for various offences.  In relation to drug offending, the only convictions are for possession of a pipe and cultivation of cannabis in 1990, as well as a conviction in the Youth Court in 1986 for possession of cannabis.

4. The sentencing Judge, having referred to the appellant’s claims that he was only a “middleman” and not a dealer and made no money out of the transactions (despite spending money received on purchasing Christmas gifts), referred to the tariff cases on Class A and Class B drugs, respectively R v Stanaway [1997] 3 NZLR 129 and R v Wallace[1999] 3 NZLR 159. He noted also that in R v Andrews [2000] 2 NZLR 205 this Court has stated that any offending involving any commercial element, no matter how small, should attract a starting point for sentence from two to four years, there being no “twilight area” between commercial and personal use.

5. The Judge then traversed the sentences he had given in other cases arising out of the same operation as had led to the appellant’s arrest.  In fixing a starting point he saw no need to deviate from the guideline in Andrews.  There was a commercial element because Mr Bowen had supplied a variety of drugs on a number of occasions in exchange for payment.  He noted the number of previous convictions but, on the other hand, also took into account the plea of guilty “albeit in a situation where conviction was a certainty”.  He took into account also Mr Bowen’s cooperation with the police and his indication of some willingness to undergo counselling.  The Judge took as a starting point three years imprisonment and deducted six months for the guilty pleas leaving an effective sentence of two and a half years imprisonment.

6. It was the submission for the appellant that the Judge had placed too much weight on the relatively small degree of dealing in a Class A drug and had, in effect, adopted a starting point for sentence based on Class A drugs.  It was submitted that there had been no suggestion that the appellant knew that the Ecstasy tablets supplied on one occasion were Class A.  Both MDA and MDMA are known as Ecstasy.  It was further submitted that the purity of the methamphetamine was only one per cent which should have been reflected in the sentence.  It was accepted that the Judge’s statement of the values of the drugs was correct.  Counsel for the appellant contended that the starting point should have been no more than two years with a six month deduction for the early guilty pleas.

7. For the Crown, it was submitted that the suggestion that the Judge had adopted a starting point for a sentence based on Class A supply was misconceived.  Counsel pointed out that the Judge had referred to the leading authorities on sentencing for both Class A and Class B drugs and had correctly identified the applicable sentencing principles.  In Wallace the Court had identified a starting point of up to five years imprisonment as appropriate for smaller-scale commercial dealing in Class B drugs.  R v Andrews was in fact a Class C case.  There could be no cause for complaint when the Judge adopted the range suggested in that case.  The Judge had been plainly alive to the issue of parity and had referred to one of the sentences where the monetary value was comparable and there had been a relatively low purity level of drugs.  In that case (R v Spiers (High Court, Wellington, T48/02, 15 February 2002)) the sentence had been three years for Class A offending and two and a half years for Class B.

8. We see little merit in the appeal.  We agree with counsel for the Crown that the starting point was well within the available range for low level commercial dealing in Class B drugs, even if the fact that in one instance the drug was Class A is disregarded.  There were some six separate incidents of sales to an undercover constable.  The appellant’s drug dealing was plainly done for monetary gain, as he admitted.

9. The sentence of two and a half years imprisonment made an appropriate allowance for the guilty plea, there being nothing in the appellant’s personal circumstances warranting any further reduction.  The sentence cannot be said to be manifestly excessive.  The appeal is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington