The Queen v Wright

[2009] NZCA 52

IN THE COURT OF APPEAL OF NEW ZEALAND

CA653/2008
[2009] NZCA 52

THE QUEEN

v

DAVID STEPHEN WRIGHT

Hearing:16 February 2009

Court:Ellen France, Harrison and Cooper JJ

Counsel:C P Comeskey for Appellant

B R Northwood for Crown

Judgment:5 March 2009 at 11.30 am 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

REASONS OF THE COURT

(Given by Cooper J)

[1]       The appellant pleaded guilty on arraignment to three counts of supplying the class A controlled drug methamphetamine.  John Hansen J sentenced him to two and a half years on each charge, the sentences to be served concurrently.  He now appeals against sentence.

Background

[2]       On 11 June 2007 the appellant arranged to supply 7.8 grams of methamphetamine to a prisoner at Mt Eden Prison.  It appears that only one gram of the methamphetamine arrived there, others having taken a cut along the way.  During a police interview following his arrest on 28 June 2007 the appellant admitted that on another occasion he had handed over a package containing one gram of methamphetamine to a woman, understanding that it too was destined for the inmate at the prison.

[3]       The third charge also involves supplying the inmate.  The appellant arranged to make the supply in a telephone discussion with the intended recipient on 18 June 2007.  On 21 June, he handed 3.8 grams of methamphetamine to a Ms Haumaha, for delivery to the prisoner.  Ms Haumaha duly delivered the drugs to the prison, hidden inside a newspaper in accordance with arrangements made by text messaging.  The messages were intercepted, and prison authorities examined the newspaper.  They found the methamphetamine in a plastic bag concealed in the newspaper.

[4]       Ms Haumaha was charged with conspiracy to supply a Class A controlled drug.  She pleaded guilty at an early stage and was sentenced to 12 months’ home detention.  There was no dispute that the appellant had in fact supplied a total of 12.6 grams of methamphetamine to three individuals on three different occasions.  Not all of those drugs ended up at their intended destination.  However, John Hansen J regarded the fact that the intended recipient in each case was a serving prisoner, as a serious aggravating factor.

The sentence

[5]       John Hansen J found that the appellant had owed money to the prisoner who had persuaded him to supply him with the methamphetamine in return for reducing his indebtedness.  He noted that the author of the pre-sentence report thought that the appellant had a high level of motivation to address the factors that had contributed to the offending, and that the appellant had distanced himself from his former associates.  However, at [8], the Judge said:

There is a very serious aggravating feature in this case.  While, as your counsel has properly put forward, there was no commerciality in your dealings, the drugs were for supply to prisoners.  You were aware of the ultimate destination of these drugs.  The mitigating factor is that you pleaded guilty.  That apparently was not until call-over in the High Court, which reduces the discount that can be given.  I am told by your counsel that in fact you wished to plead guilty earlier but your then counsel refused to allow that to happen.  If such a matter was to be before the Court it needed to be before the Court in some proper form.

[6]       The Judge noted that Ms Haumaha had been sentenced to 12 months’ home detention, but agreed with submissions made by the Crown that her case could be distinguished and was much less serious.  For one thing, the amount involved was smaller (she was only involved on the one occasion with the supply of 3.8 grams) and her attempt to supply the prisoner had been unsuccessful.

[7]       The Judge fixed a starting point of three and a half years having regard to the amount of methamphetamine involved, and the aggravating aspect that the intended recipient was a prisoner, but also taking into account that the element of commerciality was considerably lower than in some cases that had been relied on by the Crown.  He noted that the guilty plea had not been entered at the first opportunity but nevertheless contemplated an allowance of 25 per cent for the plea.  He added to the extent of the discount to recognise efforts made at rehabilitation and a degree of co-operation with the police.  These considerations caused him to reduce the end sentence to two and a half years, effectively a reduction from the starting point of 30 months or 28 and a half per cent. 

[8] The Judge rejected a submission made to him by counsel for the appellant that the appropriate outcome would be a sentence of home detention. The appellant was within the ambit of s 57 of the Sentencing Amendment Act 2007. This meant that even though the sentence of imprisonment which the Judge decided was appropriate was not such as to constitute a “short-term sentence” under the Act, home detention could nevertheless be imposed in accordance with the approach contemplated in R v Hill [2008] 2 NZLR 381 (CA).

[9]       The Judge’s reasons for rejecting the submission that home detention would be appropriate were set out in [15] of his sentencing remarks.  He said:

[15]     The home detention report says the proposed address is suitable.  The difficulty I have in this case is that there was some 12.6 grams of methamphetamine involved.  The situation is, in my view as the Crown submitted, different from your co-offender Ms Haumaha who was involved only once.  While she had considerably more convictions than you did, she faced one unsuccessful attempt of getting this drug into the prison.  But for you, methamphetamine would not have got into the prison on two occasions.  The amount involved is significant and in my view the purposes of accountability, of denunciation and deterrence in this case outweigh the factors pointing to the grant of home detention.  Because of the amount of drug involved and the serious aggravating feature that these were going to a prison, I decline to sentence you to home detention.

The appeal

[10]     The main contention advanced on the appeal was that the Judge had given insufficient credit for mitigating circumstances.  Thus Mr Comeskey did not criticise the starting point adopted by the Judge of three and a half years, conceding that it was broadly appropriate.

[11]     Mr Comeskey submitted however that the Judge had erred by not allowing a greater reduction for the guilty plea, for assistance to the police and for steps taken by the appellant towards rehabilitation.  He argued that the combination of mitigating factors should have resulted in a more substantial credit.  Further, since the appellant was a first time offender he contended that a sentence of home detention would have been appropriate.

[12]     A major plank of the appellant’s argument was an allegation that counsel who had acted for the appellant prior to his arraignment had not taken the step of advising him that he should plead guilty at an early stage in recognition of the fact that he had no plausible defence.  The appellant swore an affidavit in which he stated that his previous counsel, Ms Dyhrberg, had told him that because of his admissions in a statement that he made to the police he effectively had no defence, but had not told him of the benefits to him of pleading guilty at an early stage.  Nor had she advised him of the possibility that after committal an indictment might be presented containing charges additional to the one charge of conspiracy laid prior to depositions. 

[13]     Mr Comeskey contended that had appropriate advice been given, an early guilty plea and more substantial discount would have been the result.  Further, had the guilty plea been entered at the depositions stage the appellant would not have faced an indictment containing three counts, as subsequently transpired.  In support of this argument, he referred to R v Patrick [2008] NZCA 115 in which it was held that defence counsel had failed to advise the appellant properly of the certainty of conviction and the benefit of a guilty plea.

[14]     Having regard to the nature of the appellant’s argument, he waived privilege and Ms Dyhrberg made an affirmation in which she rejected the appellant’s allegations.  She stated that the appellant’s decision not to plead guilty earlier than he did “was a conscious, well informed decision made by him in full knowledge of the consequences of delaying his plea”.  It was her evidence that the plea had not been entered earlier because the appellant was concerned about what would happen to his business affairs if he was sentenced to a term of imprisonment and sought to delay the resolution of the prosecution for that reason.  

[15]     Mr Comeskey also contended that the sentence imposed was too high, having regard to the sentence imposed on Ms Haumaha. 

[16]     For the Crown, Mr Northwood relied on Ms Dyhrberg’s affidavit to rebut the appellant’s contention that he had not been adequately advised as to the benefits of an early guilty plea.  However, he submitted that a final sentence of two and a half years was appropriate in any event, noting that John Hansen J had deducted a year from the starting point of three and a half years.  The resulting sentence of two and a half years was within a range that would have been open had the guilty plea been entered prior to committal.  He submitted that the Judge had properly distinguished the appellant’s offending from that of Ms Haumaha having regard to the fact that she had only been involved in one unsuccessful attempt to supply 3.8 grams of methamphetamine, pleaded guilty at depositions, had made a real attempt to rehabilitate herself and had expressed remorse.  There were also special circumstances of a personal nature that weighed with the sentencing Judge, including the fact that Ms Haumaha was due to deliver twins about three months after the sentence.

[17]     Mr Northwood further submitted that it was open to John Hansen J to decide, as he did, that accountability, denunciation and deterrence outweighed any factors on which the appellant could rely to support a grant of home detention. 

Evaluation

[18]     We do not consider it necessary to resolve the factual issues in dispute between the appellant and his former counsel.  Having regard to the amount of methamphetamine involved in the appellant’s offending, a final sentence of two and a half years would have been within the available range even if a guilty plea had been entered at a very early stage on the one charge of conspiracy to supply methamphetamine that the appellant then faced.  We say that having regard to the amount of methamphetamine involved and the aggravating circumstance that the intended recipient of it was a prison inmate.  While no money changed hands the supply was “commercial”, in the sense that it was undertaken for the purpose of reducing a debt that the appellant owed.  Nor was the conspiracy incipient; the appellant had done all he needed to do to convey the drugs to the prison. 

[19]     The Court has emphasised on numerous occasions that the focus must be on the sentence actually imposed, rather than the individual steps by which the final sentence was calculated.  In the present case, there was a discount of over 28 per cent to reflect the guilty plea, efforts made towards rehabilitation and the degree of co-operation with the police.  While a greater discount might have been allowed for those factors had there been an earlier plea, that does not mean of itself that the final sentence imposed was clearly excessive.  We do not consider it was, especially where the Judge would have been justified in adopting a higher starting point than he did.

[20]     We are satisfied that there is nothing in the disparity argument.  The Judge rightly characterised Ms Haumaha’s offending as much less serious.  Nor do we consider that the Judge erred in rejecting the appellant’s submission that he should be sentenced to home detention.  It was open to the Judge, having regard to the amount of methamphetamine involved and the fact that the intended supply was to an inmate, to decide that home detention would not be an adequate sentencing response.  We can find no fault in the way the Judge disposed of that issue.

Result

[21]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington