The Queen v Wynd

[2006] NZCA 220

IN THE COURT OF APPEAL OF NEW ZEALAND

CA188/06

THE QUEEN

v

TONY JUSTIN WYND

Hearing:10 August 2006

Court:Ellen France, Gendall and Heath JJ

Counsel:P M Keegan for Appellant

D G Johnstone for Crown

Judgment:17 August 2006 at 2.15pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1]       The appellant pleaded guilty in the New Plymouth High Court to charges of administering methamphetamine to a 16 year old girl, possession of equipment and materials with intent to manufacture methamphetamine, supplying cannabis to a person under the age of 18 years, possession of precursor substances and attempting to pervert the course of justice.  He was sentenced to concurrent terms of imprisonment on the drug-related offending with a lead sentence of five years nine months imprisonment on the count of administering methamphetamine.  A cumulative term of 15 months imprisonment was imposed on the count of attempting to pervert the course of justice.  He appeals against the effective total sentence of seven years imprisonment on the grounds that it was manifestly excessive.

Background

[2]       The facts were that the appellant was aged 40 when he formed a friendship with a 16 year old female in June 2006.  He involved her in the daily consumption of methamphetamine.  Initially, the appellant persuaded her to use the drug by smoking.  Later, he injected this into the arm of the girl and instructed her as to the procedure for intravenous administration of the drug.  She had an aversion to needles and could not correctly perform the act so it was the appellant who injected her with methamphetamine over a two to three week period on about 15 occasions.  He also used the drug in a similar way.  Over the same period both the appellant and the girl consumed cannabis provided by him as well as inhaling methamphetamine.  He used the teenager to “shop” for pseudoephedrine-based products from pharmacies. 

[3]       On 22 June 2005 the girl’s mother discovered containers in her daughter’s bedroom in which were multiple items clearly designed to be a clandestine laboratory kit intended for the manufacture of methamphetamine.  The equipment belonged to the appellant who had got the girl to store the apparatus at her home.  A later search of the complainant’s home revealed items consistent with proposed manufacture of methamphetamine including chemicals such as red phosphorous, toluene, as well as the remnants of pseudoephedrine-based tablet packets. 

[4]       After the appellant was arrested and charged and whilst awaiting trial in December 2005 he approached the victim and offered her $10,000 to change her evidence contained in her deposition, yet to be presented at the preliminary hearing.  He asked her to state that she had injected herself with methamphetamine rather than it was he who performed that task.  She refused.

Sentencing remarks

[5]       In imposing sentence the Judge said that he had to include in the sentencing exercise two starting points, one for the drug offences and the other for the crime of attempting to pervert the course of justice.  The Judge took the charge of administering methamphetamine as the lead sentence.  He regarded administration of the drug as more serious than supply. His remarks were:

You are not charged with supplying methamphetamine.  You are charged with the crime of administering it.  That is a bland or neutral word normally associated with treatment by doctors of patients.  Inherent in it, of course, is the delivery of medicine or even occasionally the injection of drugs.  In this context, Mr Wynd, it has a sinister and specific meaning.  Effectively it is that you were responsible for injecting into the body of a young woman a lethal drug.

[6]       The Judge observed the difference in ages and the significant breach of trust on the part of the appellant.  He was a friend of the victim’s mother, and the offending was multiple with a highly addictive drug.  The Judge described the crime as “cruel and exploitative” and took as a “minimum appropriate starting point” a term of seven and a half years imprisonment. 

[7]       On the charge of attempting to pervert the course of justice the Judge said:

As has been said so often by many Judges, it strikes at the heart of justice.  It was a deliberate but ham-fisted attempt to persuade your victim to give perjured evidence.  Not only had you exploited her but you wanted her to commit a crime for you.  The offence was committed while on bail.  It had a profound effect on your victim.

[8]       The Judge took as a starting point one and a half years imprisonment.  He then dealt with mitigating features which included the plea of guilty but noted that it came late and:

It did not spare your victim the ordeal of having to give limited evidence.  That was because you unwisely challenged her account on a number of occasions you administered methamphetamine to her.

[9]       The Judge referred to a genuine expression of remorse and contrition and observed that the appellant had led an exemplary life until recent times and had held a position of responsibility.  He had maintained a long-standing domestic relationship.  The Judge described the appellant’s fall from grace as inexplicable and although normally personal circumstances are not taken into account, he allowed a discount reflected in the sentences which he imposed.  The effective discount was of 18 months, ending up with a final sentence of seven and a half years imprisonment.

Submissions

[10]     Counsel for the appellant accepted that a lengthy term of imprisonment was warranted and did not dispute the imposition of a cumulative sentence on the crime of attempting to pervert the course of justice.  Whilst initially contending that the case was one of “aggravated personal use” and an analogy could not be drawn to commercial supply, low level or not, counsel refined the submission to accept that the administering encompassed the crime of supply.  He disputed any commercial element.  It was submitted that the appellant, being a drug addict, simply sought to bring her into his lifestyle as an accomplice in that activity.  Mr Keegan argued the Judge erred in constructing a starting point at seven and a half years imprisonment.  Accepting it was low level supply and therefore at the upper level of Band 1 in R v Fatu [2006] 2 NZLR 72 (para [34]) a term of three to four years imprisonment was appropriate. The sentencing Judge erred in principle by doubling this to seven and a half years imprisonment.

[11]     Counsel relied upon the High Court sentencing case of R v Dalton HC CHCH T442/01 8 June 2001, where the sentencing Judge fixed a starting point at six years in a case which it was said contained greater aggravating features than in the present appellant’s case, relying upon factors such as age discrepancies, prior convictions of Dalton and other factual matters.

[12]     Crown counsel highlighted the aggravating features identified by the sentencing Judge contending that the Judge was correct to regard the drug-related offending of the appellant as being worse than that in Dalton’s case.  Here there were multiple injections of a teenage girl by the appellant who was involved in assisting in the manufacture of methamphetamine.

Discussion

[13]     There is no tariff for cases of administering class A drugs and limited guidance can be obtained from other cases.  The degree of culpability that exists in cases of administering a class A drug will generally be fact specific.  The injecting of a teenage girl on multiple occasions with the pernicious, highly addictive and dangerous drug methamphetamine can only be regarded as a grave crime.  In addition, the girl was drawn into the drug world “industry” through being used to acquire pseudoephedrine-based products, and have equipment and chemicals stored in her bedroom.  She was not only encouraged to become involved in the drug world, but actively driven down a path which placed her future in grave jeopardy.  There was not only recruitment, but an element of corruption of a teenage girl less than half the age of a mature man.

[14]     We do not think the starting point taken by the sentencing Judge in Dalton provides assistance for the appellant.  As the Judge said in that case such a starting point was the “absolute minimum” and it occurred five years ago and before R v Fatu (above).  The fact that the starting point taken in Dalton may have been lenient does not assist the appellant. 

[15]     A more telling comparison may be seen in this Court’s decision in R v Holdem CA480/99 2 March 2000, where an effective sentence of eight years imprisonment was upheld after a plea of guilty to charges of administering morphine, living off the earnings of prostitution and sexual intercourse with a girl under the age of 16.  In that case there was accumulated serious prolonged offending, although for financial gain and sexual gratification, but also against a vulnerable young girl involving the injection of morphine.

[16]     Grave aggravating features in this case included the girl’s age, the injecting her of a dangerous class A drug on a significant number of occasions and that the appellant was involved in assisting in the manufacturing of the drug.  He involved the victim in a significant way in these activities.  He deliberately put her in peril.  Those factors required the sentencing Judge to look at the overall behaviour of the appellant in assessing in a composite way the extent of his culpability and criminality.  Deterrence was also a vital consideration in the sentencing exercise. 

[17]     In all the circumstances we think the Judge was entitled to take as a starting point, viewing the crimes in their entirety, seven and a half years imprisonment.  It could not have been said to be outside the permissible range.  The discount was appropriate.  The final sentence of five years nine months imprisonment was not manifestly excessive.  No issue was taken over the sentence imposed on attempting to pervert the course of justice for which a term of one year three months imprisonment was imposed.  It was a further example of exploitive criminal acts of the appellant attempting to exercise control over a vulnerable teenage girl.  A cumulative sentence was accepted as appropriate.

[18]     In the end it is the final sentence reached by the Court which has to be looked at so as to decide whether it is outside the permissible range.  For the particular crimes in which this appellant was involved a final effective sentence of seven years imprisonment was not manifestly excessive, and indeed was fully justified.

Result

[19]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington