The Queen v Williams

[2008] NZCA 383

IN THE COURT OF APPEAL OF NEW ZEALAND

CA313/2008
[2008] NZCA 383

THE QUEEN

v

JACLYN CHERIE WILLIAMS

Hearing:18 September 2008

Court:Robertson, Wild and Cooper JJ

Counsel:P T R Heaslip for Appellant

S B Edwards for Crown

Judgment:23 September 2008 at 10.30 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]        This is an appeal against a sentence of three years’ imprisonment imposed on Ms Williams after she pleaded guilty to one charge of conspiring to supply methamphetamine.

[2]        The sole ground of appeal is that the Judge erred in declining to impose home detention which, it is submitted, involved an incorrect application of the decision of this Court in R v Hill [2008] NZCA 41. It is further contended that, in the exercise of his discretion, the Judge failed to take into account relevant considerations and took into account irrelevant ones.

[3]        At sentencing, Lang J described the factual situation as follows:

[2]       . . .  In September 2006 the police began to receive information that two persons were selling methamphetamine from certain premises in Papatoetoe.  They then instigated an operation, known as Operation domino, in which they began to keep the premises under surveillance.

[3]       In May 2007 they applied for, and obtained, an interception warrant under the Misuse of Drugs Act 1975.  This enabled the police to intercept telephone and other conversations between the people they believed to be at the centre of this drug distribution network.  Then, in June 2007, a further inception warrant was issued by this Court in respect of other persons who had been identified as being involved in the network.

[4]       The police then intercepted a vast number of telephone calls and text messages.  Some of these, Ms Williams, were text messages and telephone calls in which you were one of the parties to the communication.  These showed that you were a close associate of one of the principal distributors in the network.  It also showed that between May and June 2007 you sourced large quantities of methamphetamine from that person and you then on-sold that methamphetamine.

[5]       The summary of facts records that between 11 May 2007 and 26 June 2007 there were no fewer than 591 telephone calls or text messages between you and the distributor.  Of these, the summary records that 157 related directly to the supply of methamphetamine.  The telephone calls and text messages also revealed that you generally obtained between two and four grams of methamphetamine as a result of each contact with the distributor.  You would obtain the drugs on an “as required” basis, and the summary states that you often “reloaded” several times a day.

[6]       The police terminated their operation on 28 June 2007.  On the morning of that day they went to your residential address in Otara.  They searched the address pursuant to a warrant that had been issued under s 18 of the Misuse of Drugs Act 1976.

[7]       When the police searched your premises, they located numerous items that related to dealing in methamphetamine.  These included hundreds of empty point bags, together with other point bags containing residual amounts of methamphetamine.  They recovered three sets of digital scales, two of which were identified as having a residue of methamphetamine on them.  They also recovered glass pipes and a small quantity of cannabis plant material.

[8]       You directed the police to documentary material in your bedroom.  These took the form of 18 sets of records, commonly known as tick books.  In these you kept detailed records of your drug dealing transactions.  Analysis of the information in one of these books showed that, during the period between 1 May 2007 and 7 June 2007, a period of 38 days, you had obtained and, presumably on-supplied, more than 163 grams of methamphetamine.  Those drugs had cost you the sum of just over $99,000.

[9]       Further intercepted telephone conversations after 7 June 2007 show that you continued to be involved in dealing in methamphetamine with a similar frequency up until the termination of the operation some three weeks later.

[10]     When the police interviewed you about what they had found, you candidly admitted selling approximately $20,000 worth of methamphetamine a week over a three month period.  You also readily confirmed the identity of your distributor.

[11]     Your interest in drug dealing was amplified further in comments that you made to the Probation Officer who interviewed you prior to preparing a pre-sentence report.  You told the Probation Officer that when you began dealing in methamphetamine you were living at an address with no electricity and you were using up to half a point valued at $300 of methamphetamine per day.  Your children were in your mother’s care at that time and you were not in a position to care for them.  You said that initially you purchased drugs partly for your own use and partly for on-sale.

[12]     You then came to know the distributors, and you wanted to show them that you could assist in their business by selling drugs for them.  Although your initial involvement with them was to support your own drug habit, you quickly came to enjoy the business side of things.  The probation officer says you “relayed in excitement” how you enjoyed weighing the drugs, keeping customers and punters happy, knowing you were supplying good quality drugs.  You told the probation officer that you felt thrilled at running a good business and liked the administration side of it.  You felt that it was something that you were good at.  All of those comments suggest that you were more than happy to become fully involved in drug dealing on a very large scale.

The High Court approach

[4]        Lang J noted that this was a conspiracy case and accordingly that it was not covered directly by the decision of this Court in R v Fatu [2006] 2 NZLR 72. He held that on the basis of the available evidence, if Ms Williams had been charged with supply, then by a conservative estimate she had been in possession of and distributed at least 200 grams of methamphetamine. A starting point in the vicinity of six years would therefore have been appropriate.

[5]        The Judge noted a decision of his own, in which he had followed an approach of another High Court Judge allowing for a downward adjustment in the sentence where the charge was only one of conspiracy.  The Judge also considered the comments of this Court in R v Henry [1997] 1 NZLR 150 at 152 to 153 on the need, when assessing culpability, to consider the nature and scope of the conspiracy. The extent to which the offender participated and assisted are relevant considerations.

[6]        After having weighed the factual circumstances in the present case, the Judge took the view that the appellant’s involvement was at a very high level, and that a reduction of one year in the starting point for what would have been imposed for actual supply was appropriate.

[7]        Mr Heaslip’s submissions focussed on this Court’s decision in Hill, and on the factual differences between that case and the circumstances of Ms Williams’ offending.

[8]        With respect, such an analysis is unhelpful in light of the principled way in which the sentencing Judge explained his starting point. 

[9]        As this Court noted in Hill, cases involving the supply of methamphetamine can vary greatly, as can those involving conspiracy to supply.

[10]     The proper approach was recently encapsulated by the Supreme Court in R v Jarden [2008] NZSC 69 when it said:

[11]     Mr Jarden is not, on the present facts, assisted by having been convicted on a charge of conspiracy to supply rather than supply itself.  As the Court of Appeal pointed out in R v Te Rure [2007] NZCA 305, the seriousness of the offending may well increase as a conspiracy comes closer to execution. Indeed upon execution, and while weight must be given to the higher available penalties for supply rather than conspiracy to supply, the element of conspiracy in some circumstances may be seen as aggravating the seriousness of the offending rather than mitigating it. In the present case, matters had plainly progressed well beyond the planning stage to the point where Mr Jarden had purchased methamphetamine for the purpose, at least in part, of on-supply.

[11]     We note that Ms Williams had progressed even further, to the point of substantial and ongoing sale of methamphetamine.

[12]     There cannot be the slightest doubt that Ms Williams’ involvement was serious, and occurred over a period of time.  It was offending with clear commercial overtones, although we accept that it was initially motivated by a need to feed her personal addiction.

[13]     We agree with Ms Edwards that Lang J’s approach was in conformity with R v Te Rure [2007] NZCA 305, where this Court stated that only a very small discount is appropriate “when the plan is developed to the point of action” (at [25] – [27]).

Mitigating factors

[14]     The Judge noted that Ms Williams was entitled to credit for mitigating factors, including her early plea of guilty and her endeavours to rehabilitate.

[15]     The Judge concluded that in combination these factors justified a discount of one-third and, then a further four months’ reduction in addition.

[16]     Again, Mr Heaslip does not argue with the logic or propriety of that approach, but submitted that the actual outcome in Hill was fact-specific.

Home detention?

[17]     Lang J was mindful of the fact that Ms Williams’ offending had occurred within the period when the transitional provisions in the Sentencing Act 2002 applied.  It occurred before s 80A of that Act came into force on 1 October 2007.

[18]     The Judge carefully considered the submissions advanced by Mr Heaslip on Ms Williams’ behalf, and noted the comments made by this Court about the new sentence of home detention.

[19]     The Judge accepted that rehabilitation was the most significant criterion when considering the appropriateness of a sentence of home detention.  But, he noted that in the present case although it was Ms Williams’ own habit that led to her initial involvement in methamphetamine, she soon began to enjoy dealing with drugs and that she came to regard drug dealing as a worthwhile business.

[20]     The Judge concluded that the most important factor in Ms Williams’ case was the seriousness of her offending and its scale .  He undertook a careful analysis of the approach adopted in Hill.

[21]     Counsel before us acknowledged and agreed that conspiracy is not within the category in s 6(4) of the Misuse of Drugs Act 1975 mandating imprisonment, but that the underlying philosophy of the section does not preclude application to a charge of conspiracy.  This is especially so here where Ms Williams, when spoken to by the police, admitted to selling $20,000 worth of methamphetamine per week over a three-month period.  Parliament’s clear approach to commercial activity has application across the board.  Further, deterrence and denunciation are considerations of general application in offending of this kind.

Discussion

[22]     We conclude that there is not a bright line between culpability for conspiracy and for actual supply of a class A drug.  But, the different maximum terms for conspiracy and supply must be borne in mind.  Courts must, in a rigorous and analytical manner, scrutinise what is established by evidence or admitted in an agreed summary of facts.  In this case, there is no sustainable challenge to, or flaw in, Lang J’s logic.

[23]     It cannot be said that the Judge’s exercise of his sentencing discretion was outside available limits.  Rather, we agree with Lang J that in light of the time period of the offending, its scale and its commercial tenor, there was no alternative to a full-time custodial sentence.

[24]     The sentence imposed properly reflected everything that was submitted on Ms Williams’ behalf.  It was a particularly merciful response, and gave substantial weight to Ms Williams’ circumstances.

Result

[25]     The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington