THE QUEENvMICHAEL CAVANAGH
[2006] NZCA 136
•20 June 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA186/05
THE QUEEN
v
MICHAEL CAVANAGH
Hearing:15 June 2006
Court:Robertson, Priestley and Venning JJ
Counsel:P J Kaye for Appellant
D G Johnstone for Crown
Judgment:20 June 2006
JUDGMENT OF THE COURT
THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS
(Given by Robertson J)
Introduction
[1] Mr Cavanagh stood trial in the High Court at Auckland during February to April 2005 on an indictment containing 13 counts. A number of the 13 counts were joint charges involving three other persons.
[2] At the conclusion of the Crown case, Mr Cavanagh pleaded guilty to five counts, namely:
(a)possession of a firearm and explosives, namely ammunition, at 105 Burswood Drive on 6 August 2002;
(b)possession of equipment and material for the manufacture of methamphetamine at Unit 204 National Mini Storage between 1 and 7 August 2002;
(c)possession of a firearm and explosives, namely ammunition, at Unit 204 National Mini Storage on 6 August 2002.
(d)possession of equipment and material for the manufacture of methamphetamine at Royal Wolf Storage on 5 November 2003; and,
(e)possession of a pistol and explosives, namely ammunition, at Royal Wolf Storage on 5 November 2003.
[3] The jury returned a verdict of not guilty on a charge of conspiring to supply heroin between June and August 2002 but returned verdicts of guilty on the other seven counts namely:
(a)manufacture of methamphetamine between 6 August 1997 and 6 August 2002;
(b)supply of methamphetamine between 6 August 1997 and 6 August 2002;
(c)possession of equipment and material for the manufacture of methamphetamine between 1-7 August 2002 at Unit 832 Safe Store Public Storage;
(d)supply of methamphetamine between 6 August 2002 and 1 June 2003;
(e)supply of methamphetamine between 30 May 2003 and 5 November 2003;
(f)possession of methamphetamine for the purposes of supply between 1 and 7 August 2002; and,
(g)possession of methamphetamine for supply on or about 16 October 2004
[4] Terms of imprisonment between one and twelve years were imposed in respect of the various counts, all to be served concurrently so the effective sentence was 12 years’ imprisonment.
The appeal
[5] There was initially an appeal against conviction and sentence. The conviction appeal was abandoned and the appeal against sentence was pursued on the following grounds:
(a) the sentence is manifestly excessive given the overall offending;
(b)the imposition of an increase in the length of sentence for post-August 2002 offending compounded the excessiveness of the sentence;
(c)there is disparity between the sentence imposed on the appellant and those imposed on his co-offenders; and,
(d)the appellant received no benefit for pleading guilty to five of the charges. Albeit that the pleas came late, some benefit should have been reflected in the sentence.
The facts
[6] Rodney Hansen J who presided at trial summarised the factual position as follows:
[5] I need now to set out the factual basis for the sentences which I will pass. The charges relating to the period up to and including 6 August 2002 followed the termination on 6 August of a police operation known as Operation Illusion. That operation uncovered evidence of a large scale criminal enterprise engaged principally in the manufacturing and trafficking of methamphetamine. The charges against you are the last to be disposed of, the trial having been delayed as a result of you, Mr Cavanagh, and you, Ms Stevens [a co-accused], breaching bail and going on the run for almost a year.
[6] Before the termination of the operation, the police had intercepted communications from the phone of one, Tony Michael Jacomb. These revealed that Mr Jacomb was in regular contact with you, Mr Cavanagh, making arrangements for the manufacture and supply of methamphetamine. When the police then searched the house that you shared with Ms Stevens on 6 August 2002, they found a pistol and ammunition, a small quantity of methamphetamine and approximately $30,000 in cash. Through documents found at the house and other information, they then proceeded to search units at two storage facilities in East Tamaki and a safe deposit facility in Parnell.
[7] In one of those units, unit number 832 at the Safe Storage Public Storage facility in East Tamaki, the police found all of the equipment needed for the manufacture of methamphetamine, in effect, a broken down clandestine methamphetamine laboratory, together with large quantities of chemicals and precursor substances capable of being used for the manufacture of methamphetamine. They included almost 700 grams of pseudoephedrine compounds which, according to the evidence given at trial, would have yielded beteween 343 and 515 grams of methamphetamine. The police also found in a number of different packages methamphetamine powders totalling 265 grams in weight.
[8] At the other storage facility, the police found additional equipment used in the manufacture of methamphetamine and a variety of solutions containing 8.2 grams of pseudoephadrine. There was also a semi-automatic rifle, a revolver and a pistol with a substantial amount of ammunition and $46,000 in cash.
[9] In the three safe deposit boxes at the Parnell facility, the police recovered over $350,000 in cash, together with gold bullion, jewellery, bonus bond certificates and other valuables.
[10] There was compelling evidence that all three of you had custody and control of what was found in unit 832 at the Safe Storage facility, even though it had only been opened on 6 August, following your arrest Mr Cavanagh. The jury obviously accepted that most of what was found in unit 832 had been transferred from another unit, 834, by Ms Stevens and Ms Henry following Mr Cavanagh’s arrest. The fingerprints of all three of you were found on one container which contained a number of incriminating items and there was other evidence to connect all three of you with what had been stored in unit 834. There was, however, no evidence that you, Ms Henry, were in possession of the contents of the other storage unit and you did not face charges in relation to that.
[11] In support of the charges of manufacturing and supplying methamphetamine, the Crown also relied on the unexplained wealth which each of you were alleged to have accumulated. The forensic accountant’s conclusion for you, Mr Cavanagh, and you, Ms Stevens, showed unexplained income of $964,000 and $176,000 respectively. It is realistic to add to these figures the sum of $331,000 which you used to purchase a house in Howick in October/November of that year and to further cash found later in November 2003.
[12] After the charges were laid against you following the termination of the operation, you were all freed on bail. It was on 5 November 2003 that your home, Mr Cavanagh and Ms Stevens, was again searched, together with another storage unit. At the storage unit the police found two plastic bottles containing pseudoephadrine, together with a loaded pen gun and $64,000 in cash and other valuables. Almost $10,000 in cash, five gold bars and expensive watches were found at your home.
[13] After your arrest at this time, you fled the police and avoided arrest for eleven months. You altered your appearance and assumed false identifications. On 19 October 2004, you were caught shoplifting at a supermarket. You were seen attempting to dispose of articles in your possession. Following your arrest, a rubbish bin was searched and a container found at the bottom, which contained 9 grams of methamphetamine in ten separate bags. The jury rejected the defence argument that the container had been put in the rubbish bin by someone else.
The High Court sentencing
[7] Rodney Hansen J held that the appellant was a “significant participant” in the offending although rejecting the Crown’s claim that he was the “prime mover”. The Judge sentenced the appellant on the basis that the methamphetamine enterprise had generated over $1M in profit over a period of 12 to 18 months. The methamphetamine seized had an estimated street value of between $215,000 and $323,000.
[8] The Judge noted the personal circumstances of the appellant, in particular the efforts made by the appellant to beat his methamphetamine addiction.
[9] Rodney Hansen J determined that the appellant’s offending fell into the lower end of the highest category of offending, namely commercial activity on a major scale, in terms of R v Wallace [1999] 3 NZLR 159 because of the massive quantities of drugs involved and the prolonged period of offending. A starting point of ten years was held appropriate for the initial offending.
[10] The Judge found that the pre-2002 and post-2002 offending constituted separate instances of offending that warranted cumulative sentences in conformity with s84(2) of the Sentencing Act 2002. He recognised that, while a sentence of four to five years imprisonment would be appropriate for the post-2002 offending if viewed in isolation, the imposition of such a sentence on top of the ten year sentence would be out of proportion to the overall gravity of offending.
[11] Rodney Hansen J imposed a total sentence of 12 years’ imprisonment for the manufacturing and supply offences (to be served concurrently). This adjustment to the lead sentences was made in accordance with s 85(4) of the Sentencing Act 2002. He imposed concurrent sentences on the remaining charges.
Contentions of the parties
Appellant
[12] Mr Kaye submitted that the sentence imposed was manifestly excessive when considered in relation to the overall offending. He argued that the ten year starting point was too high. He contended that, given the Judge’s view that the offending fell into the low end of the highest category in terms of Wallace, a starting point of eight years was more appropriate. Mr Kaye supported this contention by arguing that the evidence of manufacture in effect only covered the last 18 months prior to his arrest, despite the five year period encompassed by the indictment.
[13] Mr Kaye argued that the Judge was wrong to invoke s 84 of the Sentencing Act 2002 for the post-August 2002 offending. He contended that the overall nature of the offending was the same and neither the termination of Operation Illusion nor the reclassification of methamphetamine as a Class A drug should be used to artificially fragment the offending. Mr Kaye submitted that, as a result, the uplift of two years from the starting point of ten years compounded the excessiveness of the final sentence.
[14] He also submitted in his written material that the Judge failed to give the appellant a discount for his guilty pleas in accordance with accepted sentencing principles.
[15] Mr Kaye’s final submission was that the appellant’s sentence was both manifestly excessive and inconsistent when compared to the sentence imposed on the co-accused Mr Jacomb. Mr Jacomb pleaded guilty to two counts of manufacturing and supplying methamphetamine over a five year period. These charges were the same as those faced by the appellant in counts one and two of the indictment. The sentence imposed on the co-accused Mr Jacomb in the District Court (following a sentence indication) was six years three months imprisonment. Mr Kaye argued that the disparity in sentences could not be rationalised on the basis of guilty pleas and the state of evidence against Mr Jacomb. Mr Kaye also contended that there was a lack of consistency with the five year prison term imposed upon another co-accused, Ms Stevens.
Crown
[16] The central contention by Mr Johnstone, on behalf of the Crown, was that the ten year starting point and the uplift to twelve years was well within the available sentencing discretion and he submitted that there was no disparity in sentencing in relation to the other co-accused. He accepted that Mr Jacomb’s offending was most similar to that of the appellant’s but argued that there were legitimate differences warranting the disparity in the sentences imposed. Mr Jacomb pleaded guilty to the manufacture and supply charges and was given a substantial discount for this. Further, there was no evidence from which the same inferences could be drawn about the quantities of drugs or the prolonged period of manufacture that were available in the case of the appellant. Therefore, it was not open to the Judge to place Mr Jacomb’s offending in the highest category in terms of Wallace.
[17] Mr Johnstone further argued that there was limited similarity with the other co-offenders and as such the sentences imposed on them are of limited relevance.
Discussion
[18] There are essentially four discrete matters which arise in this appeal.
Manifestly excessive
[19] Wallace set a three-fold classification for sentencing manufacture, possession and supply of methamphetamine which applied when methamphetamine was classified as a Class B drug. The highest category covers commercial activity on a major scale and has a sentencing range of eight to fourteen years. In Wallace the initiator of the methamphetamine manufacture had a starting point of ten years’ imprisonment. Mr Kaye argued that the facts of Wallace were more serious than those in this case and hence a starting point of eight years would have been appropriate. While the quantity of drugs and precursor substances found were significantly higher in Wallace than in the present case, the amount of money passing through the appellant’s hands was similar ($1M compared to $1.3M).
[20] We are not satisfied that there is any error demonstrated in the approach which the Judge took. This was large-scale commercial activity and a starting point of ten years for pre-August 2002 manufacturing and supply was clearly within range.
[21] We do not overlook Mr Kaye’s submission that the evidence of manufacture in this part of the scenario was basically for the last 18 months of the five years alleged in the indictment. Even with that limitation the matter cannot be viewed as outside sentencing discretion. As this Court noted in Wallace at [25] that while offenders can only be sentenced for proved offending, the overall context of offending should not be ignored.
Sentence uplift
[22] We do not accept Mr Kaye’s argument that what occurred post-August 2002 was simply a continuation on a lesser scale and that everything should have been treated as offending which extends over the total period of time. The critical matter in this case was that the appellant was arrested and charged with very serious drug offences. The evidence disclosed that, having been granted bail, he continued to deal in methamphetamine.
[23] In November 2003, a search of the residence which had been acquired a year earlier was undertaken, together with a storage unit. In these places there was found numerous gold bars, two litre plastic bottles containing pseudoephedrine, a loaded pen gun, about $74,000 in cash, a platinum bar, various watches and items of jewellery, and a Harley Davison motorbike.
[24] While the search was going on, Mr Cavanagh and another of his co-accused fled in a hired car and spent 11 months avoiding re-arrest. At the time they were apprehended, they had in their possession ten gram bags of methamphetamine containing a total of 9.3 grams of powder with a street value of between $8-12,000. We reject any suggestion that this was simply a continuation of what had happened in the past. Having had manufacturing equipment and precursor substances confiscated at the time of the original arrest, Mr Cavanagh commenced a new operation. This in and of itself is a serious aggravating factor.
[25] Mr Kaye submitted that the post-2002 offending standing alone would attract a starting point of only two to three years imprisonment. That does not appear to us at all consistent with current approaches and certainly not the classification in R v Fatu CA415/04 18 November 2005. The post-2002 offending would fall into the four to nine year category although the Fatu decision was determined after Mr Cavanagh’s conviction.
[26] Whether the end sentence is the result of an uplift to reflect totality or factoring in aggravating features makes little difference as Mr Kaye realistically accepted. The test is whether 12 years was a properly available exercise of sentencing discretion for all the criminality admitted and proved. In our view the sentence is neither wrong in principle nor manifestly excessive.
Guilty pleas
[27] Counsel submitted in his written material (although he did not stress the point at hearing) that it was appropriate to treat a guilty plea as justifying reduction to the sentence imposed: R v Mako [2000] 2 NZLR 170 at [14] and s 9(2)(b) of the Sentencing Act 2002 which requires the Court to take into account mitigating factors including a plea of guilty.
[28] There are two clear reasons why the absence of a discount in this case is not reviewable error. First, the pleas of guilty were entered to a variety of charges – three under the Arms Act 1983 (all of which attracted sentences of one years’ imprisonment) and two charges of possession and equipment for manufacture contrary to s 12A of the Misuse of Drugs Act 1975 in respect of which sentences of three and four years’ imprisonment were imposed. The reality is that because these sentences are to be served concurrently with the 12 year sentence, any reductions in these will have no consequence to the effective sentence which is to be imposed.
[29] Secondly, the pleas of guilty were entered at the conclusion of the Crown evidence. We can see no reason of principle why a plea of guilty entered at that stage should attract any discount. The jurisprudence is clear that discounts are given for early pleas of guilty as demonstrating acceptance of responsibility, contrition and remorse.
[30] It was well within the Judge’s discretion to refuse to make any allowance in the circumstances which existed here.
Parity
[31] The final issue was parity and by the time of hearing that was restricted to comparison with the sentence imposed on Mr Jacomb.
[32] Mr Jacomb was sentenced to six years and three months in the District Court at Auckland on 1 February 2005 after what was described as “weight to considerable rehabilitative efforts”. There were three other charges which were dealt with by Priestley J in the High Court at Auckland on 11 March 2005.
[33] Most importantly that Judge said:
[15] Taking a step back I am of the view that if you were being sentenced in this Court for all your offending both on the three charges I am dealing with today and the counts on which you have already been sentenced, you could justifiably expect, even after allowance for mitigating factors, a sentence of somewhere in the order of seven to seven and a half years. Seven years would probably be about as low as you could expect a sentencing Judge to go.
[34] It must be assumed that a starting point in the vicinity of nine years applied.
[35] Mr Jacomb and Mr Cavanagh were not in any hierarchical relationship with regard to the offending that went on. They each had important and substantial tasks, but as Mr Johnstone made clear the evidence against each was of a different quality. The heart of the case against Mr Cavanagh came from the analysis of his financial dealings whereas in respect of Mr Jacomb it was rooted in intercepted phone calls over a three month period.
[36] We are not persuaded there is any error flowing from a starting point for Mr Cavanagh of ten years compared with a starting point for Mr Jacomb of nine years. It is clear from Rodney Hansen J’s sentencing notes (at [49] and [51]) that he was alert to the issues.
[37] However these matters are assessed we are not satisfied that there is any strength in a disparity argument.
Conclusion
[38] None of the grounds raised in the sentence appeal are sustainable and the appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington
0
0
0