The Queen v William Peehi

[2003] NZCA 56

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 430/02

THE QUEEN

v

WILLIAM PEEHI

Hearing:24 March 2003

Coram:Anderson J
Baragwanath J
Gendall J

Appearances:  R S Garbett for Appellant

K Raftery for Crown

Judgment:24 March 2003 

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1]       The appellant was convicted by a jury in the District Court at Whangarei on two counts of being party to the supply on 13 August 2001 of the Class B controlled drug morphine to an undercover police officer.  He appeals against the concurrent sentences of 2.5 years imprisonment.  There was in force at the time of the offences a suspended sentence of one year and six months imposed on 17 January 2001 for assault on a female.  The sentencing Judge modified that sentence to two months imprisonment and activated it cumulatively upon the 2.5 year term.

[2]       In the course of her duties as an undercover agent, the officer had met an associate of the appellant’s who took her to the appellant’s home.  The appellant gave an account that the officer’s interest was in cannabis.  She deposed that the appellant twice asked her if she was a police officer and, following her denial, said that he had a mate who had morphine which he described as 20s and 50s and a dollar per mg, signifying 20 and 50 milligram tablets for $20 and $50 respectively.

[3]       The first count related to the supply of six 20 milligram tablets and two 10 milligram tablets to the officer by a woman called "Brenda" who lived in the same street.  As they walked to her house the appellant  told the officer that she who had some "Misties" or morphine sulphate tablets following the death of her late father, for whom it had been prescribed.  At the house the appellant introduced the officer to a woman who came to the door.  She invited him in and took from a container from the top of the refrigerator a brown medicine bottle marked "RA Morph 200 mls" six 20s and two 10s.  A price of $200 was negotiated and the officer paid the appellant $200 for them.

[4]       The Judge held that there was an element of chance in the connection with the woman and that the episode did not point to systematic supply of drugs from a steady source.  He said that he was left in some doubt whether the undercover officer was flushing out criminal activity that would have occurred in any event: that it was not clear to him that the appellant was active and standing in the market and that the officer just happened to find him rather than that his offending was unlikely to have happened had it not been for her approach to him.

[5]       In relation to the second count the officer deposed that the appellant had previously made arrangements for the supply, saying that the morphine was “coming today or tomorrow”.  The appellant said he had heard about her around town and thought it would be all right to give her the name of a person coming from up north with the morphine.  He supplied the name of Mark Comer who he said was coming from Kaitaia.  He gave her a hand-written note to give to an acquaintance “Dodger”.  The appellant said that he could not go to the address himself because he had had to run from the police a couple of times but he could show the officer the address.  He gave her a hand‑written note “Dodge!  Can you fix my mate up!  Willy.  PS See you at 7 pm.”  The officer went to the address described to her by the appellant and spoke to a person named Roger.

[6]       The officer returned to the appellant’s house.  He asked her “Go all right?”  She said “Yes.”  He said “Hey, we’ll give that other guy a call.  He had a thousand when he went down to Auckland, but he’s got more.”  The appellant used the officer’s cellphone and dialled a number and asked her to speak to “Mark” which she did.  She said “How is it?”  The response was not led but the officer deposed that in reply to his response she said “Yes, when are you coming down?” and after his response, handed the phone back to the appellant who spoke to him.  She and “Mark” had arranged that she would call him in 15 minutes.

[7]       Later that evening she went to the appellant’s address.  Comer was present with a young woman, a child and another man.  Comer took a quantity of cannabis out of a plastic bag said to the officer “Sorry about this but I don’t want to be set up, couple of my mates have been busted and that’s not going to happen to me.”  Comer rolled a cannabis cigarette and handed it to the appellant who lit it and passed it to the officer.  She took this as a challenge to both her cover and her identity.  She took a puff of the cigarette and passed it back.

[8]       Comer then said “Let’s do this, shall we?” and he, the appellant and the officer went into the laundry back door area.  The appellant provided a light bulb and then left Comer and the officer.  She bought eight 50 milligram tablets from Comer and paid him $320 following some amount of bartering.  The officer then paid the appellant $50 as an “earn” for arranging the transaction.  The appellant made no comment and showed no surprise.

[9]       The Judge’s finding was as follows:

[7]       The picture is not quite so clear with respect to Mr Comer.  You said at the trial that your interest in Mr Comer was as a supplier of cannabis.  But I am satisfied he was a dealer in this type of drug, you knew he was and you deliberately facilitated a sale by him.  So in summary I suppose I could say that so far as the offence involving Brenda is concerned your culpability is not quite so high as it is with respect to Mr Comer.

[8]       The next element when dealing with the matter of culpability concerns the question of whether you were acting for mercenary purposes.  You have attempted to play down this aspect of the offending and in fact denied on oath at trial that you had received a $50 earn from the agent.  I considered that the evidence was perhaps a bit ambiguous in this area as to whether or not you were not involving yourself in this offending, either to impress the undercover agent with your connections or for some other reason other than being strictly linked to a wish to earn money.  And it may be that the agent volunteered the money rather than you asking for it.  I would lean towards the conclusion that you did not stipulate for “an earn” and that the officer in fact volunteered it out of gratitude to you when you effected the introduction.

[10]     Comer, who pleaded guilty, received a two year prison sentence for possession of morphine for supply.

[11]     The Judge considered R v Wallace [1999] 3 NZLR 159 and placed the appellant in the lower bracket described by this Court:

[32]     For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise.

[12]     The Judge rejected counsel’s submission that he could apply a series of earlier authorities which have resulted in sentences up to six months imprisonment, or in one case a community-based sentence.  He considered that their effect has been swept away by the tariff bands set in Wallace.  He said:

[11]     My overall conclusion is that having regard to the fact that the maximum available is 14 years, a significant period in excess of at least two years must be imposed to recognise the degree of gravity attributed to this offending by the legislature when selecting a maximum of 14 years.  I cannot conscientiously fix… a sentence of less than two and a half years in your case on the counts that went before the jury.

…

[13]     The appellant submitted that the 2.5 year sentence was manifestly excessive for the reasons:

a)the Judge erred in classifying the offending as within the guidance of R v Wallace because the appellant’s conduct did not contain a commercial element;

b)the Judge erred in determining that the tariff bands identified in Wallace had, as the Judge expressed it in his sentencing note, “swept away” various sentencing decisions which had preceded it that would justify a sentence of six months imprisonment or less for such offending.

[14]     Mr Raftery for the Crown supported the sentence, submitting that the facts justified a firm approach.  He emphasised the features:

a)The appellant was responsible for both introductions without which there would have been no supply.  In respect of the introduction to Comer, the appellant was aware that he was a drug dealer.  Indeed, that introduction resulted in a further three purchases by the officer.

b)The appellant had more than 50 prior convictions, albeit only two in relation to drugs.

c)The appellant had been sentenced the previous month to a six month sentence suspended for 1.5 years for assault of a female.

[15]     We agree with the Judge that the evidence in support of the first count did not point to systematic supply of drugs from a steady source.  But while “Brenda’s” possession of her father’s drugs was merely fortuitous, the appellant’s conduct in linking a customer with a source of supply was not; any more than in relation to the second count.   In both cases his role was essential to the completed transaction.

[16]     We do accept the appellant's submission the guidance in Wallace is particularly directed at commercial dealing.  We also accept that the Crown did not establish that financial benefit was an intended element of his offending.  It does not however follow that Wallace has no application to the present case.  That is because of the commercial dealing that occurred in this case, which the appellant knowingly facilitated.  As Mr Garbett acknowledged in the course of oral argument the relevant passages in Wallace are para [32] (para [11] above) and:

[25]…  4. …Participants in distribution at lower levels should be dealt with proportionately to their culpability as assessed by the sentencer.

…

[17]     It is plain that the appellant knew very well both that Comer was a dealer and that the transaction he facilitated would be for money.  The latter may also be said of the count one offending.

[18]     Parliament's concern is with the supply of drugs to the community.  There is need for deterrence of all those minded to facilitate such supply in whatever manner. 

[19]     The doubts about the appellant’s motivation referred to in the Judge’s sentencing remarks are to be resolved in favour of the appellant; the Judge was right to conclude that the officer volunteered the $50 out of gratitude to the appellant when he effected the introduction.

[20]     But while personal commercial motivation or, as here, its absence is always relevant, to facilitate commercial dealing by others is not to be regarded as insignificant.

[21]     In his thoughtful oral submissions, Mr Garbett did not advance a disparity argument in relation to the two year sentence imposed on Comer following his plea of guilty to charges on four counts of supply of morphine and of cannabis.  The sentencing Judge there selected a starting point of three years and deducted one year to recognise the plea.  He also took into account Comer’s personal circumstances which included the recent death of his wife and consequential responsibilities that placed particular burdens upon Comer, who had become quadriplegic as a result of a serious road accident.  Comer was given leave to apply for home detention.

[22]     Taking account of all the circumstances, including the absence of proved commercial motivation on the appellant’s part and the treatment of the principal offender, we are of the view that the 2.5 year term was excessive and that a two year term is appropriate.  There was no challenge to the cumulative two month term imposed in relation to the assault on a female. 

[23]     Accordingly the new sentence imposed by this Court is a term of two years and two months imprisonment.

Solicitors:

Crown Solicitor, Auckland