The Queen v Stephen Gregory Broun
[2001] NZCA 222
•30 August 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA117/01 |
THE QUEEN
V
STEPHEN GREGORY BROUN
| Coram: | Keith J Blanchard J Tipping J |
| Judgment (on the papers): | 30 August 2001 |
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
The appellant was sentenced in the District Court in Christchurch to a term of three years imprisonment on a charge of conspiring to supply a class C drug (cannabis). He appeals against the sentence on the ground that it is manifestly excessive in all the circumstances, particularly when compared with the sentences of his co-offenders. The appellant seeks:
(a) reduction of his current sentence; or
(b)reduction of his current sentence and leave to apply for home detention; or
(c)dismissal of the time remaining on his current sentence and substitution of a period of supervision along with a period of periodic detention or community-based service.
The appellant did not apply for legal aid in respect of this appeal. He does not have counsel acting for him. This appeal has therefore been determined on the basis of written submissions made by the appellant himself.
The facts in brief are that in early November the Christchurch Drug Squad received information from informants indicating that a cannabis dealing syndicate was operating in the Christchurch area. An operation known as Operation Rat was commenced by the Drug Squad to target the syndicate. At this time the appellant was a taxi driver. He came to police attention because he frequently transported individuals and parcels associated with the syndicate. In the course of their investigation the police executed a search warrant at the appellant's residence. The appellant was subsequently charged with possession of cannabis plant for supply, possession of cannabis oil for supply and conspiring to supply cannabis. The appellant pleaded guilty to the first two charges and not guilty to the third. On 20 March 2000 he was sentenced to nine months imprisonment on the first charge and one year on the second charge to be served concurrently. Leave to apply for home detention was denied.
At the trial of the conspiracy charge in February 2001 the Crown submitted that the syndicate consisted of three levels of offending. The headman was Colin Piper. Below him were associates who managed the tinny houses from which the cannabis was sold. On the bottom level were the tinny house operators. At trial the Crown placed the appellant on the middle level as the head associate. However in their sentencing submissions the Crown modified their position so as to place the appellant at a higher level in a now four-tiered hierarchy. The appellant was presented as essentially Piper's lieutenant.
At the sentencing of the appellant and two of his co-offenders the Judge noted that he had regard to the sentences imposed on the co-offenders and the sentencing indicators laid down by this Court for cannabis offences in R v Terewi [1999] 3 NZLR 62. The Judge found that it was clear the appellant was a major part of the organisation. He indicated that whether the appellant was on a tier of his own or simply the headman of the second tier was not material. Rather it was significant that the appellant acted as a drugs courier, stocked the tinny houses, collected money and, on one occasion, enforced payment. All the while he could disguise his activities under his legitimate occupation as a taxi driver. These factors lead the Judge to find that the appellant was more important to Piper than other offenders on the original second tier such as to justify a distinction in sentencing between them.
In considering the totality of the offending the Judge referred to the appellant's guilty pleas to the earlier charges of possession of a class B and class C for supply. He indicated that the proper sentence for all of the appellant's offending, including the offences to which he had already pleaded guilty, was one of four and a half years imprisonment. This was the sentence which the appellant would have received if he had pleaded not guilty to the other two charges and had been found guilty by a jury. The Judge then subtracted from this sentence the sentence of eighteen months already served, which was in fact reduced to twelve months by reason of the appellant's guilty plea. This exercise produced a final sentence of three years imprisonment on the conspiracy charge.
Disparity in sentencing with co-offenders
The first substantive ground of appeal by the appellant is that his sentence was manifestly excessive having regard to all the circumstances of the case including the sentences imposed on his co-accused. In particular the appellant points out that apart from the two recent drug convictions for which he was incarcerated at the time of sentencing, he has only one prior related conviction in 1986 whereas his co-offenders have more extensive relevant criminal histories.
Of the 12 initial accused eight pleaded guilty to the charges laid against them, and four, including the appellant, not guilty.
•Piper, the head of the operation, was sentenced to five and a half years imprisonment. To reach this figure the sentencing Judge adopted the maximum starting point of seven years then gave an 18 month discount in light of the guilty plea.
•Co-accused John Bogle, placed on the second tier of responsibility, was sentenced to two years three months imprisonment for his involvement. His guilty plea and other mitigating factors were held to warrant a reduction from a three year starting point. Bogle had a previous conviction for selling cannabis in 1999 and continued his involvement in the conspiracy while on bail.
•Donna Bogle was sentenced to 21 months imprisonment for her involvement on the second tier of responsibility.
•The sentences for tinny house operators ranged from 12 to 18 months imprisonment.
The appellant and three others who had pleaded not guilty to the conspiracy charge went to trial. The appellants, Read and Anderson, were found guilty on the charge of conspiring to sell a class C controlled drug. Anderson was also found guilty of actual sale of drugs on a representative charge and Read pleaded guilty to one count of cultivation upon arraignment.
In sentencing the three co-offenders the Judge indicated he would take the sentencing levels of all of the co-offenders into account. However, having heard all of the evidence at trial, he reflected that in the earlier sentencing of four of the co-offenders, including Bogle, he may have employed starting points that were too low.
Read, who had been placed on the second tier of responsibility, was sentenced to three years imprisonment on each charge. His complicity was viewed as much the same as Bogle's without the mitigation of a guilty plea. The aggravating nature of Bogle's continued involvement while on bail was balanced by Read's previous convictions which include five drug-related convictions between 1993 and 1995.
Anderson received two years and three months on each count for his involvement on the bottom tier of responsibility. His previous convictions and involvement at the top of the bottom tier of responsibility were held to warrant a sentence comparatively higher than his co-offenders. A further two months was also imposed for breach of periodic detention.
We do not consider there is any merit in the disparity argument. The appellant's lesser criminal history must be balanced against the more significant role which the Judge who had presided at the trial assessed him as playing in the syndicate. As to the appellant's level of involvement, we are not persuaded that the Judge's assessment of the facts based on his experience of the trial was wrong.
The general level of the appellant's sentence is consistent with the sentencing indicators set down by this Court for cannabis offences in Terewi. The appellant's role in the syndicate as found by the sentencing Judge clearly falls within class two, cultivation or sale of cannabis for a commercial purpose, with a starting point of somewhere in the range of two to four years. In all the circumstances we consider the sentence arrived at by the Judge was within the range open to him.
Alleged errors in fact or law
In his written submissions the appellant alleged the Judge made a number of errors of fact or law in sentencing.
The appellant submitted that the Judge erred in failing to take into account the contents, comments and suggestions in the pre-sentence reports of 6 March 2000 and 8 March 2001. Having reviewed these reports we see nothing in their contents, comments or suggestions which is inconsistent with the Judge's sentencing of the appellant or which should have been taken into account in sentencing but was not.
The appellant submitted that the Judge erred in both fact and law in his comments as to the appellant's use of his legitimate occupation to disguise his drug-related activities. The appellant drew our attention to the Transport Services Licensing Act 1989, Third Schedule, Transport Services Rules, Part 1, Small Passenger Service Rules, Rule 12(1) which relates to whom a taxi driver must accept and whom he may refuse to accept as a hirer while plying for hire. The appellant submits that under these rules he did not, in law, have the right to refuse the hires.
The Judge's comments were made in the context of outlining the appellant's involvement in the operation. We do not consider the appellant's complaint has any validity.
The appellant also submitted that the Judge erred in allowing the Crown to change from a three tier scenario at trial to a four tier scenario at sentencing. We do not consider that this change in scenario impacted on the appellant's sentencing. From his analysis of the evidence at trial the Judge clearly considered that the appellant had a greater level of involvement than his co-accused regardless of the technicalities of the Crown's scenarios. We find that such a finding was open to the Judge on the evidence.
In general support of his sentence appeal, the appellant pointed out that he did not receive any gain from his involvement in the drug scene and that he has a five-year-old son. These matters were before the Judge at sentencing and we find no reason to conclude they were not given due consideration.
The appellant also indicated that as a consequence of his conviction he lost his "P" endorsement so that he can no longer work as a taxi driver. That is a consequence of the offending which the appellant has brought upon himself. It does not result in his sentence being excessive.
General points arising from the written submissions
The appellant submitted that he was in fact convicted of "knowledge of and conspiracy by association" and not "conspiracy to commit an offence". The appellant was convicted under s6(2A) of the Misuse of Drugs Act 1975. This section provides that it is an offence to conspire with another person to commit an offence against s6(1) of the Act, in this case s6(1)(d) and (e) - supplying or selling a class C controlled drug. This section does not distinguish between "knowledge of and conspiracy by association" and "conspiracy to commit an offence" as submitted by the appellant. The alleged distinction has no relevance to sentencing under this section.
The appellant submitted that the use of the drugs found at his residence to support the two charges of possession for supply and the conspiracy charge constitutes double-dipping. We do not consider this to be the case. Evidence can often be used to support multiple discrete charges. There is no requirement for police to find fresh evidence to support each separate charge. This would be an onerous and unnecessary requirement. It is sufficient that accused persons are protected from being tried or punished twice for the same offence (New Zealand Bill of Rights Act 1990, s26(2)).
The appellant also made allegations about false evidence by witnesses at his trial. Without evidence to support these allegations this Court cannot consider them. Similarly, assertions as to police and Crown vendettas against the appellant for not informing on his co-accused, and as to the insufficiency of Crown evidence on the use of the taxi for drug dealing have not been substantiated in the materials provided by the appellant.
Conclusion
Having reviewed the appellant's submissions we do not consider there is any reason to disturb the sentence. The appeal is therefore dismissed.
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