Uncles v The King
[2023] NZHC 102
•3 February 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2022-483-011
[2023] NZHC 102
BETWEEN STACEY JESSICA UNCLES
Appellant
AND
THE KING
Respondent
Hearing: 11 October 2022 and supplementary submissions on 18 and
27 January 2023
Appearances:
L A Scott and R E O’Hagan for the Appellant J C H Liu for the Respondent
Judgment:
3 February 2023
JUDGMENT OF PALMER J
Solicitors
Quay Legal, Wellington
Wilkinson Smith Lawyers, Whanganui
UNCLES v THE KING [2023] NZHC 102 [3 February 2023]
What happened?
[1] Ms Stacey Uncles pleaded guilty to two charges of possession of methamphetamine for the purpose of supply, cultivation of cannabis, and possession of methamphetamine utensils. These offences are punishable by up to life imprisonment, seven years’ and one year’s imprisonment respectively. There were two sets of offending:
(a)In Waiouru, at around 7.25 am on 3 May 2018, the Police executed a search warrant at Ms Uncles’ address and found 22g of methamphetamine, $7,170 in cash, electronic sales, zip lock bags, tick books, a small cannabis plant, multiple cell phones and, in Ms Uncles’ vehicle, a 12-gauge shotgun.
(b)While Ms Uncles was on bail in Palmerston North she committed further offending, between 1 and 7 February 2019. The summary of facts on which she was sentenced states:
On 1 February 2019, a surveillance device warrant was authorised to intercept the private communications of the defendant’s associate Kenny FUNG via any cellphone operated by him. A warrant was also obtained to track the movements of his cellphone.
…
FUNG used the defendant’s money to broker a deal with an unknown Asian male and purchased half a kilogram of methamphetamine.
On hearing about the purchase the defendant demanded FUNG return to Palmerston North and threatened him with violence.
On FUNG’s return to Palmerston North, the defendant told him to put the methamphetamine in her letterbox which he did at about 4.30am on 6 February 2019.
At about 12.50pm on 7 February 2019, police executed a search warrant at the defendant’s address.
A subsequent search of her bedroom located a snaplock bag containing approximately 27.7 grams of methamphetamine on the bed, a smaller snaplock bag containing 851 milligrams
of methamphetamine, $1250 cash, a set of digital scales and empty ziplock bags.
In a tool bag on the floor of the defendant’s bedroom was a snaplock container. Inside there were six snaplock bags, containing between 6.8 grams of methamphetamine and 28 grams of methamphetamine. The combined weight of the methamphetamine in the snaplock bags was 76.7grams.
On 7 February 2019, FUNG was located in an inner city carpark by police.
…
A search of the vehicle located a pottle of methamphetamine in the driver’s side door.
This contained approximately 14 grams of methamphetamine.
Under the driver’s seat was a small black bag.
This contained a snaplock bag with approximately 10 grams of methamphetamine …
[2] On 7 August 2020, in the District Court at Whanganui, Judge P P Crayton sentenced Ms Uncles.1 In traversing the facts, the Judge stated:
[4] You were granted bail, and, indeed, you took advantage, sadly, of that because on 4 February 2019, you were back dealing, and the reality is that you gave your associate $100,000 to pay a drug debt. That person was meant to go to Auckland to pay that debt, you were communicating with him, perhaps unsurprisingly, on the way, out of concern. What you learnt was that he had gone and purchased a further half kilo of methamphetamine. You demanded his return and you made a clear threat to him. You demanded that the money be put in your letterbox and that was placed there at 4.30 am in the morning.
[5] Police were, of course, monitoring you by that stage and they executed a search warrant and they found 27.7 grams of methamphetamine on the bed, a smaller bag with 0.851 milligrams of methamphetamine, $1250 in cash, digital scales, zip lock bags and, on the floor of the bedroom, a snap lock container containing further snap lock bags, six of them. They contained between 6.8 grams of methamphetamine and 28 grams of methamphetamine. The total weight of those bags was 76.7 grams. The male was found in possession of methamphetamine, being two amounts, 14 grams and 10 grams.
[3]The sentencing arithmetic is not altogether easy to follow. In summary:
1 R v Uncles [2020] NZDC 15743.
(a)For the lead set of offending in Palmerston North, in relation to the amount of methamphetamine recovered, the Judge stated:2
It also reflects a clear difference between the amount of methamphetamine purchased and very quickly thereafter, located by police. What that involves for you and signifies is your level as a dealer; however the Crown consider where this lies within Zhang and Mr Crowley does not disagree, and I think, realistically, it places you at a point under Zhang of a five year starting point. That is discretely identifying that offence.
(b)He uplifted that by six months, or 10 per cent, for offending while on bail, and made discounts for Ms Uncles’ addiction, a cultural report and a guilty plea, meaning a net discount of 35 per cent and a sentence of three years and three months’ imprisonment for the lead offending.3
(c)He set a starting point for the first set of offending in Waiouru, on its own, of two years and 10 months’ imprisonment,4 discounted that for addiction, the cultural report, the guilty plea, and increased it for Ms Uncles’ repeated delays of the proceedings, leading to an end sentence in the region of 22 to 24 months’ imprisonment.5
(d)He acknowledged the principle of totality by uplifting the sentence for the lead offending by only 11 months rather than 22 to 24 months.6
(e)He imposed a sentence of imprisonment of four years and two months for the Palmerston North offending, and a concurrent sentence of two years for the Waiouru offending.7
[4] Mr Fung, Ms Uncles’ co-offender in Palmerston North, pleaded guilty to possession for supply of 119.2g of methamphetamine. He was sentenced in the District Court at Palmerston North by Judge L C Rowe, who set a starting point of
2 At [11].
3 At [26]–[27].
4 At [17].
5 At [28].
6 At [29]–[30].
7 At [32].
three years’ imprisonment.8 There was no reference to Mr Fung having purchased half a kilogram of methamphetamine. On 7 March 2022, the Palmerston North Crown Prosecutor wrote to Mr Crowley, Ms Uncles’ counsel at the time, to say that Judge Rowe had raised the fact that the change to the summary of facts “may affect Ms Uncles’ sentence and render her sentence manifestly excessive”.
[5] Ms Uncles is currently on parole, but she appeals her sentence which makes a difference to the end dates of parole and release conditions. Her appeal is out of time. The Crown is not unduly prejudiced. I grant leave to extend the time for filing an appeal in the interests of justice because Mr Fung was not sentenced until February 2022, and there was delay in Ms Uncle obtaining counsel, receiving Mr Fung’s sentencing notes and clarifying the position with trial counsel.
Submissions
[6] Ms Scott, for Ms Uncles, submits the Judge relied on an error of fact by the Crown in assessing her role and adopting a starting point of five years’ imprisonment. At the District Court hearing, the Crown submitted that Ms Uncles had dealt with 395g of methamphetamine between the time Mr Fung put the 500g in her letterbox and her arrest. That influenced the District Court in placing Ms Uncles’ offending in Band 2 of Zhang. But that was not alleged in the summary of facts, which was the basis for Ms Uncles’ plea and for the sentencing. It was not established she was ever in possession of the 500g supposedly purchased by Mr Fung without her consent. Ms Uncles should have been sentenced consistently with Mr Fung for possession of 105g of methamphetamine. Mr Fung’s starting point of three years could be seen as being at the lower end of the scale, given that he was a purchaser. But Ms Uncles is not a typical lead offender because she was trying to pay off a debt. At worst, her role as lead offender justifies a four-year starting point. The disparity with Mr Fung is gross to the extent a reasonably minded independent observer would believe something has gone wrong with the interests of justice. Ms Uncles’ sentence is manifestly excessive.
8 R v Fung [2022] NZDC 2661.
[7] After the hearing, Ms Scott filed supplementary submissions regarding the implications of the Supreme Court’s recent decision in Berkland v R regarding sentencing for methamphetamine offending.9 She submits Berkland confirms that what an offender actually did is a fundamental component in assessing their culpability and role, which the Crown has exaggerated. She submits Ms Uncles’ role in the offending falls short of “significant”, as reformulated by Berkland, because:
(a)Ms Uncles directed Mr Fung to drive to Auckland to repay a drug debt for her. But Mr Fung was no longer pressured or influenced by Ms Uncles when he went off script. There is no evidence she knew the particulars of his purchase or directed or authorised it.
(b)The $100,000 debt does not indicate offending for financial gain. It shows the vicious cycle of debt and offending faced by those addicted to methamphetamine.
(c)There were people above Ms Uncles in the chain. She was concerned for her own safety. She may not have been under direction in relation to the methamphetamine but that is due to Mr Fung not being directed by Ms Uncles to purchase it.
(d)The purchase of methamphetamine was out of Ms Uncles’ control despite efforts to intimidate Mr Fung to ensure the debt was paid or the money returned. She directed Mr Fung to bring her what was left. But Mr Fung planned to short-change Ms Uncles so he sought financial gain and Judge Rowe held his role went beyond that of a courier, having sourced and negotiated the purchase.10
[8] Mr Liu, for the Crown, acknowledges the Judge made a passing reference to the discrepancy between the possible amount of methamphetamine purchased and the amount recovered by the Police. The Crown does not find it necessary to go down the rabbit hole of disputing this fact because sentencing proceeded on the basis of the
9 Berkland v R [2022] NZSC 143.
10 R v Uncles, above n 1, at [11].
actual amount found on Mr Fung and Ms Uncles, which was 119.2 and 133 grams of methamphetamine respectively. Those amounts place the offending within band two of the guideline judgment of Zhang.11 If sentencing had been based on possession of 500g, a much higher starting point would have been adopted. Ms Uncles pleaded guilty on the basis of a statement of facts that Mr Fung uplifted $100,000 from her and used it to purchase 500g of methamphetamine. The Crown recognises that perhaps 500g was not in the letterbox but considers it odd that she only received 100g and made no further complaints. She played a significant role and should have a larger starting point than Mr Fung.
[9] In his supplementary submissions, Mr Liu submits Ms Uncles remains correctly categorised as having a significant role, and the end sentence is still well within the available range, because:
(a)Ms Uncles directed Mr Fung to pay the $100,000 drug debt and threatened him with violence when he did not follow instructions. So she was able to direct him “by pressure, influence, intimidation, or reward”.
(b)The $100,000 indicates Ms Uncles was primarily motivated by commercial financial gain, rather than feeding her own addition. It supports an inference she received actual financial advantage commensurate with her role. This operation was more than just for her own or joint use on a non-commercial basis.
(c)Ms Uncles was not under any direction and played more than a limited function. She was not pressured, coerced or intimidated. Nor was she naïve or exploited. The offending occurred while she was subject to another prosecution for dealing methamphetamine.
11 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
Should a different sentence be imposed?
[10] Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.12 The Court will only intervene and substitute its own views if the sentence being appealed is “manifestly excessive”.13
Berkland
[11] In Berkland, the Supreme Court emphasised that sentencing is an “intensely factual inquiry”.14 The purpose of appellate court guidance is a tool to aid evaluation, “not a straitjacket”.15 It affirmed the Court of Appeal’s approach to sentencing for methamphetamine offences in Zhang, emphasising that role can drive movements both within and between quantum-based bands.16 It did not change the quantity bands. In principle, it noted that role can be even more impactful than quantum, if justified in the circumstances.17 The quantum assessment, along with general deterrence, must not “obscure the importance of role as an indicator of comparative culpability”.18 The Court provided a new role profile, quoted below, and altered the guidance on what is a “significant” role in respect of two matters of detail, but did not significantly reformulate it.19
12 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
13 Ripia v R [2011] NZCA 101 at [15].
14 Berkland v R, above n 1, at [63].
15 At [65].
16 At [64].
17 At [65].
18 At [77].
19 At [71].
Updated Role Profile Table Lesser Significant Leading 1. Performs a limited function under direction;
2. engaged by pressure, coercion, intimidation;
3. involvement through naivety or exploitation;
4. motivated solely or primarily by own addiction;
5. little or no actual or expected financial gain;
6. paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved;
7. no influence on those above in a chain;
8. little, if any, awareness or understanding of the scale of operation; and/or
9. if own operation, solely or primarily for own or joint use on non-commercial basis.
1. Management function in operation or chain where, under direction from a leader, this entails directing others in the operation whether by pressure, influence, intimidation or reward;
2. operational function, whether operating alone or with others;
3. motivated solely or primarily by financial or other advantage;
4. actual or expected financial or other advantage, especially where commensurate with role and risk assumed; and/or
5. some awareness and understanding of the scale of the operation.
1. Directing or organising buying and selling on a commercial scale;
2. substantial links to, and influence on, others in a chain;
3. close links to original source;
4. expectation of substantial financial gain;
5. uses business as cover; and/or
6. abuses a position of
7. trust or responsibility.
[12] The Supreme Court in Berkland also clarified that personal background factors should be taken into account in sentencing if they make a causative contribution to offending.20 Where offending is particularly serious, background factors may be displaced in whole or in part.21 In relation to addiction specifically, the Supreme Court disagreed with the assumption that “(effectively) all methamphetamine addicts who offend on a commercial scale do so in a clear-eyed and cynical way”.22 Sentencing judges should start with the facts.
20 At [109]. See also Carr v R [2020] NZCA 357 at [65] and [71].
21 At [111].
22 At [128].
The amount of methamphetamine
[13] The summary of facts on which Ms Uncles was sentenced identified the following specific amounts of methamphetamine:
(a)In a safe in her bedroom in Waiouru, 22g;
(b)In Palmerston North:
(i)27.7g in a snaplock bag on her bed;
(ii)0.851g in a smaller snaplock bag;
(iii)76.7g in six snaplock bags in a tool bag on her bedroom floor;
(c)In Mr Fung’s car:
(i)14g in a pottle in the driver’s side door;
(ii)10g in a snaplock bag in a black bag under the driver’s seat.
[14] The amounts found at Ms Uncles’ homes were exactly those specified by the Judge in sentencing her.23 The 105.251g in Palmerston North is consistent with the Crown’s submission to the Judge that the starting point for the Palmerston North offending should be five years, with which Ms Uncles’ then counsel agreed. That is consistent with Zhang and Berkland. The 22g in Waiouru was also consistent with the Crown’s submission that the starting point of that offending should be towards the bottom of band two of Zhang, at two years and six months, and the defence submission that it should be two years and six months.24 If sentencing had proceeded on the basis of Ms Uncles possessing 500g of methamphetamine in Palmerston North, the starting point would have been significantly higher in band three – perhaps six to 12 years.25
23 R v Uncles, above n 1, at [2] and [5].
24 At [14]–[16].
25 Zhang v R, above n 11, at [125].
[15] The Crown’s unfortunate submission at the sentencing about how much methamphetamine Ms Uncles had dealt with did not influence the amount of methamphetamine that was the basis for setting the starting point. It did influence the Judge’s assessment that she was a dealer – but there was plenty of other evidence to indicate that, including her possession of items such as ziplock bags and scales used in supplying drugs. The motive for dealing methamphetamine, to pay off a prior drug debt, is not a material factor.
The role
[16] The disparity in starting points is explicable by the difference in the roles of Ms Uncles and Mr Fung. Ms Uncles had a large amount of capital, possessed items commonly used in methamphetamine supply, and threatened Mr Fung with organised violence. Mr Fung was more of a courier and purchaser. It does not seem Ms Uncles directed him to buy the methamphetamine in Auckland. But she directed him to bring her the methamphetamine and threatened him. And he responded by bringing her at least some of the methamphetamine. Any direction of Ms Uncles does not absolve her of her significant role, as it did not in the case of Mr Berkland.26
[17] Ms Uncles did not play a leading role in the offending, according to the categorisation in Berkland. In these circumstances, she played a significant role. She directed Mr Fung by pressure, influence, intimidation or reward. She had an operational function. She was motivated primarily by financial advantage, irrespective of the underlying reason for desiring that advantage. She was aware of the scale of the operation.
[18] Counsel did not particularly emphasise the role of Ms Uncles’ addiction in her offending on appeal. That is appropriate. The addiction was appropriately taken into account by the Judge in a discrete discount to the sentence, recognising that her background factors underpinned Ms Uncles’ descent into “a drug dealing, drug abusing way of life”.27 That discount is consistent with Berkland.28
26 Berkland v R, above n 9, at [76].
27 R v Uncles, above n 1, at [18].
28 Berkland v R, above n 9, at [162(a)].
Result
[19] I conclude the Judge made no material error in sentencing Ms Uncles on the basis of the wrong amount of methamphetamine. The starting point of five years, and the end sentence, is within the range available to the judge. No other sentence needs to be imposed. The sentence is not manifestly excessive. I dismiss the appeal.
Palmer J
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