The Queen v Terrance Shane Stewart Walsh

[2001] NZCA 444

IN THE COURT OF APPEAL OF NEW ZEALAND  CA253/01

THE QUEEN

V

TERRANCE SHANE STEWART WALSH

Hearing:  19 November 2001

Coram:  McGrath J

Fisher J Baragwanath J

Appearances:  S Ellis for the Appellant S P France for the Crown

Judgment:  26 November 2001

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]        The appellant pleaded guilty to twelve charges of drug-related offences and six charges of receiving stolen property all committed in the course of dealings with an undercover police officer during a period of four weeks between July and August 2000. He appeals against his sentence in the High Court on 10 July 2001 to what was an effective six years term of imprisonment.

Background facts

[2]        The Hamilton police became concerned about a large number of burglaries, and other offences involving stolen property being committed in the Hamilton area. It became apparent that a trend had developed whereby stolen property was being traded for controlled drugs. The police instigated an operation code named Operation Dino between March and August 2000, during which an undercover police constable was tasked with obtaining evidence relating to property offending.

[3]        The undercover constable initially made contact with the appellant on 11 July 2000 concerning a Sony car stereo system the appellant had advertised for sale.  They met and their discussions turned quickly to stolen property which the appellant said he could access for the constable. Between 11 July and 8 August 2000, the appellant arranged for the sale to the undercover constable of numerous items, which the appellant knew were stolen property. They included a laptop computer, a car engine and gear box, other car parts and a jet-ski. A feature of this offending was the speed with which the appellant was able to source items to offer to the undercover constable and to put transactions together. Within three days of their first meeting  the appellant was also offering to obtain LSD, cannabis, ecstasy and methamphetamine for the constable. During the four week period covered by the charges the constable was offered and purchased through the appellant, cannabis, LSD, ecstasy and methamphetamine.

[4]        On 10 August 2000 the police executed a search warrant at the appellant’s address where they found fourteen single gram bags of methamphetamine. As a result of this discovery, and the undercover police constable’s work, the appellant was charged under the Misuse of Drugs Act 1975 and the Crimes Act 1961 with the following offences:

(a)One charge of offering to supply a Class A drug – LSD

(b)Two charges of supply of a Class A drug - LSD

(c)Two charges of supply of a Class B drug - Methamphetamine

(d)Two charges of offering to supply a Class B drug- Methamphetamine

(e)One charge of possession of a Class B drug - Methamphetamine

(f)One charge of sale of a Class C drug - Cannabis

(g)Three charges of offering to supply a Class C drug - Cannabis; and

(h)Six charges of receiving stolen goods.

[5]The appellant pleaded guilty to all charges on arraignment.

Sentencing in the High Court

[6]        The appellant was sentenced with a co-offender through whom he had sourced the LSD supplied to the constable. The High Court judge considered a number of authorities as giving general guidelines to the appropriate sentence: R v Urlich [1981] 1 NZLR 310; R v Richardson (CA 27/81, 29 July 1981); R v McFarlane [1992] 3 NZLR 424. The Judge noted that in R v Richardson the court had observed that heavier penalties were inevitable in cases of drug dealing of a commercial nature. This indication was certainly seen as applicable to the appellant’s case. In R v Connolly-Baker (CA 104/92, 8 July 1992) the court had upheld a sentence of three years three months on two charges of supplying LSD and one of supplying cannabis oil, in the case of a 30 year old with no previous convictions where only small quantities of the drugs were sold.

[7]        In R v Carpinter (S.1153/99, 18 June 1999), the court took a starting point of four to five years on charges of dealing in LSD and two to three years for dealing in Class B methamphetamine. A sentence of three years was imposed for the Class A drug dealing and eighteen months for the Class B dealing. The offender was 21 years with no previous convictions. His role was that of a courier.

[8]        In relation to the receiving charges the High Court judge placed some reliance on R v Bom (CA 209/96, 16 October 1996) where a six-year sentence for four charges of receiving and one of conspiring to receive was upheld. The appellant in that case was involved in a large scale burglary and receiving operation. He was a

principal in a ring said by the Court to be running a supermarket for clearing of stolen property.

[9]        In the present case the judge placed weight on the fact that these were numerous commercial dealings involving a sophisticated venture both in relation to the drug dealing and the receiving aspects. Her Honour dealt with the two types of offending separately. A four year starting point was adopted with regard to the Class A drug offences, for which a three year sentence was imposed after making allowances for the appellant’s guilty plea. Concurrent sentences of two years imprisonment were imposed for the Class B drug offending and of 18 months for that involving Class C drugs.

[10]      In dealing separately with the receiving charges, the judge took a starting point of four years imprisonment which she reduced in light of the guilty plea, imposing a sentence of three years on each charge. These sentences were also to be served concurrently. The sentence on the receiving counts was, however, made cumulative with the three-year sentence imposed on the drug offending counts, giving a total effective sentence of six years imprisonment.

Submissions on Appeal

[11]      Mr Ellis, for the appellant, took issue with values placed on some of the larger property items in the police statement of facts. This, however, was a matter to which the judge made no reference during sentencing and which, in our view, did not influence the sentence that was imposed for receiving. Mr Ellis also took issue with the judge’s description of the offending as sophisticated, suggesting it was rather of an opportunistic character, the opportunity arising, and continuing over the four weeks period as a result of the constable’s initiatives. Mr Ellis also emphasised, as did the written submissions for the appellant, the inter-mingled nature of the offending which had taken place over a short period. He argued that the receiving offences would have been appropriately marked by a sentence that was concurrent with that for the drug offending. Furthermore a sentence of six years imprisonment was too high. A total sentence of 3 years was sought.

[12]      Mr France, for the Crown, emphasised the intensity of the offending over the four week period, and the ease with which the appellant had been able to access different drugs and stolen goods. He emphasised the importance the middle man in the markets for both drugs and stolen goods. The appellant did whatever was needed to see that deals were struck, even if in general he was not a principal in transactions. Bearing in mind the significant drug dealing involved as well as the receiving offences, in total a sentence of 6 years jail was open and should not be disturbed even if a different split between the two groups of charges, producing a higher term for the drug offending, might have been decided on by the judge.

Decision

[13]      The nature of the offending for which the appellant was sentenced cannot in our view be characterised as being opportunistic. It is true he was approached by the undercover constable, but he moved quickly in response, demonstrating his ready access to drugs and to a range of stolen goods, and quickly putting together a series of transactions. The judge said the offending was sophisticated and we consider that the intensity and efficiency with which it was carried out over a period of four weeks made that an apt description, albeit that the receiving component cannot in our view be equated to the clearing house operation addressed in R v Bom.

[14]      Nor is the appellant’s offending to be minimised because he was, in general, not a principal in the transactions. His entrepreneurial role as a go-between in relation to the offending, who was able to dispose quickly of a range of goods, was one that was essential to the smooth operation of the drug dealing of others. That is in part because stolen goods, directly or indirectly, often provide the means of payment for illegal drugs. What the appellant was doing, in other words, enabled his principals to undertake their major offending in relation to both drugs and stolen goods. The sentence imposed had to reflect this pivotal role of the appellant.

[15]      Much emphasis was placed at the hearing of the appeal on whether the sentences should have been concurrent, in that the offending should have been regarded as a single group of transactions rather than falling into two distinctive groups concerned one with drug offending and the other with receiving. We

acknowledge that the offending comprised a sequence of related transactions, but do not accept that it follows that the judge was wrong in this case to impose a separate cumulative sentence to mark the seriousness of the receiving element. For the reasons we have given, we consider it was rightly seen as elevating the gravity of the drug offending. A cumulative sentence was an appropriate way to reflect that factor.

[16]      In following that course, however, it was important that the sentencing judge considered the totality of the overall sentence that was effectively being imposed for a sequence of offending. It does not appear from the remarks at sentencing that this was done. Certainly it is not clear it was done. This was not a case in which the receiving offending was truly separate from that of the drug dealing. Taking into account the totality principle, in our view the overall sentence of six years is too high.

[17]      In light of the guilty pleas and taking into account the other factors we have mentioned, a total of 4½ years imprisonment would be appropriate. We allow the appeal against sentence and to give effect to our decision quash the concurrent sentence of 3 years imprisonment imposed on each of the counts of receiving. We substitute a concurrent sentence of eighteen months imprisonment on each of the charges. The receiving sentence will however be cumulative with the sentence of 3 years imprisonment on the drug dealing charges. The substituted effective sentence is accordingly 4½ years imprisonment.

Solicitors

Crown Law Office, Wellington