The Queen v Warren John McLaine
[2000] NZCA 359
•30 November 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA355/00 |
THE QUEEN
V
WARREN JOHN MCLAINE
| Hearing: | 30 November 2000 |
| Coram: | Thomas J Heron J Anderson J |
| Appearances: | D M Madsen for Appellant S P France for Crown |
| Judgment: | 30 November 2000 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
This is an appeal against a sentence of 2½ years imprisonment imposed following conviction on one count of conspiring to sell the Class C controlled drug, cannabis. The conviction was entered following a plea of guilty during the course of a High Court jury trial involving a number of offenders and a number of offences relating to controlled drugs. In respect of the appellant the Crown withdrew charges relating to Class A and Class B controlled drugs and he was sentenced accordingly on the single count to which he had pleaded guilty. The ground of appeal is that the sentence is manifestly excessive.
The appellant was an occupant of a flat at 9A Akepiro Street, Mt Eden which was subjected to electronic surveillance pursuant to an interception warrant. Over a period of some five weeks, commencing early in December 1998, more than 50 intercepted communications related to cannabis dealing. The appellant was involved in 19 of these. The sentencing Judge considered a co-offender, Nicholas Rogers, as the “principal participant, prime mover and king pin of the conspiracy.” He was satisfied, however, from the evidence, with which he was familiar having presided at the trial, that the present appellant “played a major and active role, although not to the extent of Mr Rogers.” A search of the Akepiro Street address disclosed cannabis bullets and cannabis leaf of a total weight of 35.5 grams, along with relevant cannabis dealing paraphernalia such as electronic scales, rolls of tin foil, square tin foil cuttings, and plastic deal bags. Also found were bundles of cash in denominations of $100, $50, $20, and $10 notes totalling $5990. It was claimed on behalf of the present appellant that some $3000 of that cash was legitimate money received by Mr McLaine from his parents to enable him to pay debts associated with his business. Although sceptical of that explanation, the trial Judge allowed the benefit of the doubt and approached sentencing on the basis that only approximately $3000 of the money found was the proceeds of cannabis dealing. Although not adverted to in detail by the sentencing Judge, the transcript of relevant intercepted communications discloses reasonably frequent dealing by this appellant and others at the level of tinny sales and $100 bags with occasional variations. The sentencing Judge characterised the operation, we think correctly, as:-
A commercial operation of moderate scale and spread, which was carried out steadily and consistently almost on a daily basis for at least the five week period of the police surveillance.
The appellant had five previous convictions between 1981 and 1998 for possession of cannabis. In each case a fine had been imposed and the Judge acknowledged that they were not of the seriousness of the present charge but he considered them to be an aggravating feature.
The Judge had regard to the approach indicated by this Court in R v Terewi [1999] 3 NZLR 62, which he considered equally applicable to cases of cannabis dealing as to cannabis cultivation, and he found that the present offending came within category 2 in terms of Terewi. That is, this was a dealing for a commercial purpose with the object of deriving profit and on a moderate scale falling short of the most serious category 3. For this category the starting point for sentencing is generally between two and four years imprisonment, as the Judge noted. He considered the appellant was actively involved in the operation and was so involved for substantial pecuniary gain. Although the pre-sentence report referred to many positive aspects of the appellant, including his industry and ability in hotel management as well as in business and in domestic responsibilities, he considered that such personal matters could play little part in sentencing for drug offending. The method by which he arrived at the sentence of 2½ years imprisonment was to take a starting point of three years, such reflecting lesser responsibility than the main offender, and to add six months imprisonment for the aggravating feature of previous cannabis offending, making 3½ years imprisonment. He then allowed what must be regarded as a very generous reduction of one year for the guilty plea and imposed the sentence of two years six months imprisonment accordingly.
Submissions on behalf of the appellant
Counsel for the appellant submitted that the sentence was manifestly excessive as a result of a combination of factors. First, that the Judge referred to 22 conversations when in fact there were only 19 involving this appellant. Second, that the Judge considered the appellant had played a major and active role whereas, in counsel’s submission, the appellant’s role was in real terms no different from that of the co-offender Larking who received a sentence of nine months imprisonment which was then ordered to be suspended. Third, counsel submitted that the correct approach to sentencing should have been a comparison with cases involving selling cannabis to persons over the age of 18 years rather than cases involving cultivation of cannabis. In counsel’s submission, a comparison with cases involving the sale of cannabis to persons over 18 years of age indicated that the present sentence was disproportionately severe. Next, it was submitted that too much emphasis was placed on the appellant’s previous drug convictions which were not only old but did not disclose any significant involvement in drug dealing. Finally, counsel submitted that the Judge failed to give sufficient discount for the appellant’s guilty plea which should have acknowledged that for tactical reasons and to avoid a lengthy period in custody on remand awaiting trial, it was not expedient to enter a guilty plea to the conspiracy to sell cannabis until the more serious charges of offences in respect of Class A and Class B controlled drugs had been disposed of. The tactical aspects of the late plea seemed to be the inevitability of a custodial remand of the appellant in consequence of such plea pending the defended trial of the counts relating to Class A and Class B controlled drugs.
In support of the submission that the trial Judge had over-estimated the degree of this appellant’s involvement in the dealing, counsel made these following points:-
[a]The $2990 connected with the sale of cannabis was found in the room of the principal offender Rogers.
[b]No drugs were found in the appellant’s room but only in the rooms of Rogers and the other resident Larking.
[c]The electronic scales were found in Rogers’ room as were the five pieces of tin foil. These items had Rogers’ fingerprints on them.
Counsel then described a numerical analysis relating to numbers of conversations, numbers of telephone conversations, the subject of transactions, and the numbers of transactions with specific purchases.
The Crown submissions
Counsel for the Crown submitted that this Court should have regard to the advantage enjoyed by a trial Judge when it came to assessment of relative culpability amongst co-offenders. Concerning the discrepancy between 22 conversations and 19 involving the appellant, counsel submitted that it was not the detail but the essential nature of the operation and respective involvements that were relevant. He submitted that in reality the residence was the centre of a substantial cannabis selling operation; that the appellant was an integral part of it; and the Judge had heard the primary evidence which was the tapes of intercepted communications. Counsel submitted that a reading of the transcript left little room to query the proposition that the appellant was a central player in the operation. Some callers asked directly for him; some asked for either him or another offender; many asked for the other offender but were content to deal with the appellant who readily transacted the deal.
As to the method by which the trial Judge arrived at the final sentence, counsel submitted that appropriateness of result more than the mechanism by which it is reached is important. He submitted that authorities such as Terewi, and R v Andrews and Divett [2000] 2 NZLR 205 show that concern with commercial activity in cannabis applies equally to dealing as it does to cultivation. He submitted that the present sentence was within the appropriate range for someone with previous convictions who had pleaded guilty. He emphasised, however, that the allowance of one year for the guilty plea was generous having regard to the inevitability of conviction, the fact of plea well into the trial, and the pre-trial challenges to the admissibility of evidence.
Counsel accepted that undue weight could not be given to previous convictions but submitted that in fixing a place within a range such previous convictions were indicative of an ongoing commitment to illegal activity in connection with cannabis.
Judgment
Counsel for the appellant set out the analysis of transactions to support a submission that the Judge was wrong to find that the appellant played an active and major role and was involved for substantial pecuniary gain or indeed played a substantially different role from Larking who received the nine month sentence of imprisonment, which was suspended. We note, however, that the comparison with Larking is not developed in support of a ground of appeal usually referred to as unjust disparity. It is, rather, presented in support of the submission that the Judge wrongly assessed the appellant’s role.
With respect to appellant’s counsel, we think that the numerical dissection is too narrow a basis for impugning the Judge’s assessment of culpability. It is not just the numbers but the nature of the communications involving the appellant, viewed in their context of the operation as a whole, which needs to be considered. The Judge was in a position to assess that and counsel’s submissions have not persuaded us that he was in error.
As to the submission by counsel for the appellant that the sentencing approach indicated in Terewi is inappropriate for cannabis dealing not involving cultivation, we accept the submission by counsel for the Crown that the Courts have expressed concern for cannabis offending, as indeed all drug offending, which has a commercial quality. The maximum penalties for cannabis cultivation and cannabis dealing are very similar, even though not identical, and there is a close analogy between growing for pecuniary gain and dealing with the harvest for pecuniary gain. The ultimate concern is the use of the product. Of course there will always be a question of what level of commercial activity particular facts disclose, whether in respect of growing or dealing. But in this case we are not satisfied that the Judge made a wrong assessment on that score. We further think that his reliance on Terewi was appropriate. The three year starting point, before taking account of previous convictions, was not inappropriate.
As for the addition of six months imprisonment to the starting point because of previous cannabis offending, we consider that the Judge was entitled to have regard to deterrence for a person who was a repetitive cannabis offender. The personal deterrent factor could have been brought into account by adopting a starting point at a higher level than three years rather than by treating the repetition as an aggravating factor. However, the final sentence is not inappropriate because the Judge allowed for the guilty plea a discount which was manifestly generous. Counsel for the Crown was right to emphasise the principle that the appropriateness of the sentence ultimately reached is of more concern than the mechanism of its computation.
We have not been persuaded that 2½ years imprisonment was manifestly excessive or inappropriate in the particular case.
Counsel for the appellant asked the Court to reconsider the application for legal aid. Although we are grateful to counsel for his courteous and conscientious submissions, we are not disposed to review the decision to decline aid.
Leave was sought to bring the appeal out of time on the grounds that the appellant was not intending to appeal until he became aware, whilst in prison, of other inmates’ sentences or experiences of sentences for allegedly similar offending. Whilst not necessarily persuaded of the cogency of such grounds, we have preferred to deal with the appeal on its merits rather than on the basis of a technical barrier through the passage of time. Accordingly, although leave to appeal is granted the appeal is dismissed.
Solicitors:
Gifford Devine & Partners, Hastings, for Appellant
Crown Law Office, Wellington
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