Wheeler v R
[2017] NZCA 193
•19 May 2017 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA393/2016 [2017] NZCA 193 |
| BETWEEN | RUTH ADELE WHEELER |
| AND | THE QUEEN |
| Hearing: | 11 May 2017 |
Court: | Cooper, Mallon and Wylie JJ |
Counsel: | N Levy for Appellant |
Judgment: | 19 May 2017 at 12 pm |
JUDGMENT OF THE COURT
A The application for leave to adduce further evidence is granted.
B The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Wylie J)
The appellant, Ms Wheeler, pleaded guilty to three representative charges — supplying methamphetamine, possession of methamphetamine for supply and offering to supply methamphetamine. She was convicted and sentenced on 14 July 2016 to three years and eight months’ imprisonment by Judge Cooper in the District Court at Rotorua.[1]
[1]R v Wheeler [2016] NZDC 16424.
Ms Wheeler appeals the sentence. She argues that it is manifestly excessive.
Ms Wheeler also seeks leave to adduce fresh evidence in support of her appeal — namely an assessment completed by a psychologist for the ACC in August 2016. The Crown did not oppose this application and leave is granted.
Factual background
On 13 April 2015, Ms Wheeler was released from custody, having served a sentence of three years and two months’ imprisonment for selling methamphetamine, possession of methamphetamine for supply and conspiring to deal in methamphetamine.
The charges in respect of which Ms Wheeler was sentenced by Judge Cooper relate to the period between 23 July and 13 August 2015 when she was on parole for the earlier offending. She was part of a methamphetamine dealing operation run by a senior Black Power member, K. The police intercepted communications that revealed 71 separate incidences where methamphetamine had been supplied or offered for supply by Ms Wheeler.
Ms Wheeler pleaded guilty to each of the three charges on the first day of the trial.
District Court sentencing
Judge Cooper, in his sentencing notes, accepted that Ms Wheeler’s offending fell within the lower end of band two identified in R v Fatu.[2]He noted that:
(a)she had supplied methamphetamine in amounts ranging from 0.1 to 1 gram;
(b)there were numerous individual transactions;
(c)she had received an estimated 12 grams from K;
(d)some of the methamphetamine was for her own use; and
(e)she was essentially dealing to support her own addiction.
He noted, as a “stand out aggravating feature”, that Ms Wheeler had previous convictions for the very same type of offending.[3] He adopted a starting point of three years and six months’ imprisonment. He uplifted that starting point by six months given Ms Wheeler’s previous convictions and the fact that her offending occurred while she was still on parole. He gave her a reduction of four months (approximately 8.3 per cent) for her guilty pleas. As already noted, the end sentence imposed was one of three years and eight months’ imprisonment.
Analysis
[2]R v Fatu [2006] 2 NZLR 72 (CA).
[3]R v Wheeler, above n 1, at [15].
Ms Levy, for Ms Wheeler, did not challenge Judge Cooper’s starting point, the uplift, or the discount for the guilty pleas. Rather she argued that the Judge failed to take into account Ms Wheeler’s personal circumstances. It was submitted that those circumstances make a sentence of imprisonment more subjectively punitive for Ms Wheeler.
Judge Cooper had before him a pre-sentence report. It recorded that Ms Wheeler had a dysfunctional childhood, and that she had entered into a marital relationship that had been traumatic for her. The report writer expressed the view that Ms Wheeler’s involvement in drug‑related offending stemmed from her attempts to cope with stresses in her life. It was noted that she had been diagnosed as suffering from post traumatic stress disorder, and that, while serving her sentence, she had undergone counselling to address this issue.
Judge Cooper briefly referred to this report. He also referred to a letter which had been sent to him by Ms Wheeler where she referred to the absence of family support, and that her husband had passed away. Ms Wheeler stated further that she had been pressured by K to become involved in drug dealing, but that she had made no profit from the dealing; rather she had offended to support her own methamphetamine addiction.
The ACC report was not prepared for the purposes of sentencing. It did, however, describe Ms Wheeler’s dysfunctional and destructive childhood in some detail. It recorded that Ms Wheeler became self-destructive in 2015 and that she had returned to her drug habit while she was on parole. The psychologist who prepared the report expressed the opinion that Ms Wheeler’s self‑destructive behaviour was a result of her childhood experiences, which have left her vulnerable and lacking in capacity and resilience. The view was expressed that “[i]t is possible that her drug use is a learnt adaptive behaviour from the way she managed her distress” during periods of major difficulty in her life. Assessments carried out confirmed that Ms Wheeler met the clinical criteria for post traumatic stress disorder. It was said that Ms Wheeler’s early experiences have left her vulnerable to victimisation. It suggested that Ms Wheeler needs psycho-educational support, and that further development of a strong therapeutic relationship is likely to be key to her recovery.
Ms Levy accepted that the report does not directly link Ms Wheeler’s dysfunctional and destructive childhood with her subsequent offending. She submitted, however, that the disorders from which Ms Wheeler suffers have created a vulnerability in her relationships, which has led to her offending and affected her ability to resist addiction. Ms Levy argued that this in turn has led to her becoming involved in criminal offending to support her addiction. She described it as a “vicious cycle”. She argued that it mitigates Ms Wheeler’s culpability, and that a lengthy sentence of imprisonment was inappropriate.
It is well‑established that, in sentencing those convicted of dealing commercially in controlled drugs, the personal circumstances of the offender will usually be subordinated to the need for deterrence. This does not, however, mean that personal circumstances can never be relevant.[4] The personal circumstances of an offender can be relevant either because they contributed in some way to the offending or on purely compassionate grounds.[5] Specifically, a discount for mental and cognitive problems can be available if those problems played a causative part in the offending, so as to moderate culpability or render less appropriate, or more subjectively punitive, a sentence of imprisonment.[6] Whether deterrence should be moderated or even eliminated as a sentencing consideration depends upon the nature and severity of the symptoms of the condition exhibited by the offender, and the effect of the condition on the mental capacity of the offender.[7]
[4]R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
[5]At [14].
[6]E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68].
[7]At [70(c)].
Ms Wheeler’s offending involved commercial drug dealing. She offended afresh shortly after being released from prison for similar offending, and while she was on parole. The offending continued for a period of some four weeks. It was clearly deliberate and sustained. In such circumstances, it is more difficult to show a sufficient causative link between any impairment and the offending.[8] Ms Levy submits Ms Wheeler’s offending over a period of time is entirely consistent with the disorder that affects her. However, the sustained period of offending means there is an obvious need for deterrence in sentencing her.
[8]See R v Sabuncuoglu [2008] NZCA 448.
Ms Wheeler suffers from post traumatic stress disorder and she is vulnerable. The ACC report, however, puts the causative link between Ms Wheeler’s mental state and her offending as no more than possible. Further, the psychologist did not identify any psychiatric illness or disorder that may have affected Ms Wheeler’s moral culpability. Rather the psychologist’s opinions were speculative — for example she assessed Ms Wheeler as “probably a person who could be described as vulnerable because of early childhood experiences”.[9] She considered that Ms Wheeler is “a person whose development has been fundamentally compromised by poor attachment and early childhood trauma and whose core capacity and resilience has been significantly impaired” but found no indication of significant personality dysfunction or personality disorder. Indeed the psychologist described Ms Wheeler as intelligent and competent, and as having good cognitive skills and considerable psychological insight.
[9]Emphasis added.
We have considerable sympathy for Ms Wheeler. It is clear from the ACC report that she had a very traumatic childhood. However, the report does not establish a sufficient nexus between the post traumatic stress disorder she suffers from, or her vulnerabilities, and the offending of which she has been convicted.
We have considered whether the sentence should be reduced on compassionate grounds and we note the submission made that a sentence of imprisonment will be unduly punitive for Ms Wheeler. The ACC report, however, confirms that Ms Wheeler finds “forms of containment (including currently being in prison) helpful”, and that “while she feels it is unjust that she has been returned to prison she believes it does offer her opportunities to gain psychological skills and access support and help”. We do not consider that the sentence is unduly harsh for Ms Wheeler.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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