Wire v Police

[2013] NZHC 2202

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-441-16 [2013] NZHC 2202

BETWEEN	JAYDAN PETER WIRE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	28 August 2013
Appearances:	E Forster for Appellant K Laurenson for Respondent
Judgment:	28 August 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

WIRE v NEW ZEALAND POLICE [2013] NZHC 2202 [28 August 2013]

[1]     Mr Wire pleaded guilty in the District Court to charges of supplying methamphetamine, conspiring to supply methamphetamine and offering to supply methamphetamine.  On 28 May 2013, Judge Mackintosh sentenced Mr Wire to an effective term of three years imprisonment.1

[2]      He  now  appeals against sentence on  the basis  that the Judge  adopted a starting point that was too high.  He says the starting point was too high because the Judge failed to have regard to the fact that a significant proportion of his offending related to drug-related activity that may not have led to the actual supply of methamphetamine.  In other words, the Judge failed to give concrete recognition to the fact that two of the three charges related to offending in respect of which the Crown could not prove the actual supply of methamphetamine.

Background

[3]      Mr  Wire  was  arrested  as  a  result  of  a  police  operation  targeting  those involved  in  the  methamphetamine trade  in  the  Hawkes  Bay  area.    The  police obtained a warrant authorising them to intercept the electronic communications of those suspected of dealing in methamphetamine.  Mr Wire came to the attention of the police through intercepted text messages.

[4]      The charges arose as a result of text messages to and from Mr Wire indicating that he was involved in the supply of methamphetamine.  He had several sources from whom he obtained methamphetamine.  He then on-sold it to others at a retail level.

[5]      The intercepted communications spanned  a  period of  approximately five weeks.  During this period the police were able to gather evidence of 15 actual supplies of methamphetamine, although it is not possible to say exactly how much methamphetamine was involved.   The police uncovered evidence of a further 48 instances in which Mr Wire offered to supply methamphetamine.  On one of these occasions, he had offered to supply 42 grams of methamphetamine. In all, the police

were   able   to   find   reference   to   a   total   of   approximately   70   grams   of

1      R v Wire DC Napier CRI-2013-041-000129, 28 May 2013.

methamphetamine throughout the text messages.  It is not possible, however, for the Crown to provide any reliable information as to how much methamphetamine Mr Wire ultimately actually supplied.

The structure of the sentence

[6]      The Judge considered that, viewed overall, Mr Wire’s offending fell within Band 2 identified in R v Fatu.2    Band 2 applies to drug-dealing activity involving between five and 250 grams of methamphetamine.  Offenders within this category can expect a starting point within the range of between three and nine years imprisonment.

[7]      The Judge considered that an appropriate starting point was four and a half years imprisonment.  She then discounted the sentence by six months to reflect the fact that Mr Wire had undertaken rehabilitative efforts and was genuinely remorseful for his offending.  She provided a further discount of one year, or 25 per cent, to reflect Mr Wire’s guilty pleas.   This produced the end sentence of three years imprisonment.

The arguments

[8]      As indicated above, the sole ground of appeal is that the Judge failed to make allowance for the fact much of the offending related to offers to supply methamphetamine and conspiring to supply methamphetamine in circumstances where the Crown could establish that actual supplies were made.

[9]      Counsel for Mr Wire points out that the penalty for conspiring to supply methamphetamine is 14 years imprisonment, whereas the penalty for supplying methamphetamine is life imprisonment.  As a result, and in reliance on authorities such as R v Dunn (Teo),3 the Judge ought to have reduced the starting point to reflect the  fact  that  the  maximum  penalty  for  a  significant  proportion  of  Mr  Wire’s

offending was just 14 years imprisonment.

2      R v Fatu. [2006] 2 NZLR 72.

3      R v Dunn (Teo) HC Auckland CRI-2008-404-000076, 14 October 2008.

Decision

[10]     There is now a well-established line of higher authority confirming that the closer a conspiracy comes to execution, the more serious it will become.4    Indeed, the Supreme Court has said that in some cases the circumstances surrounding a conspiracy may be more serious than those relating to actual supply.5

[11]     In the present case, Mr Wire’s offending needs to be viewed in the round.  It comprised 15 actual supplies of methamphetamine over a relatively brief period.  In addition, the Crown was able to point to numerous other instances where it is likely that some form of drug dealing activity had occurred.  The fact that on one occasion Mr Wire was prepared to offer to supply 42 grams of methamphetamine means that he  considered  himself  able  to  source  methamphetamine  in  reasonably  large quantities.  The sheer volume of text messages makes it clear that Mr Wire was a busy retailer of methamphetamine who had more than one source of supply himself.

[12]     At sentencing, the Crown relied on the starting points approved in R v Byford and Ngataki.6   In that case the Court of Appeal said that a starting point of four years imprisonment was appropriate for an offender who was in possession of 14.3 grams of methamphetamine, whilst a starting point of six years imprisonment was appropriate for an offender in possession of 97 grams of methamphetamine.  The Crown also referred the Judge to R v Egan,7 in which a starting point of five to six years imprisonment was held to be appropriate for an offender found in possession of 100 grams of methamphetamine.

[13]   Although much of Mr Wire’s offending related to offers to supply methamphetamine, nevertheless he carried those offers through to fruition on at least

15 occasions.   I do not consider that the conspiracy charge can meaningfully be separated  from  the  supply  and  offering  to  supply  charges  for  the  purposes  of sentence.  I consider that the Judge was fully entitled to regard four and a half years

imprisonment as an appropriate starting point given the fact that transactions or

4      R v Te Rure [2007] NZCA 305 at [25]-27]; Jarden v R [2008] NZSC 69 at [11]; R v Williams

[2008] NZCA 383 at [13].

5      Jarden v R, above n 4 at [11].

6      R v Byford [2008] NZCA 215.

7      R v Egan [2008] NZCA 102.

potential transactions involving at least 70 grams of methamphetamine could be discerned from the text messages. Nor do I consider the Judge was required to apply any reduction to reflect the fact that Mr Wire had also pleaded guilty to a charge of conspiracy that carried a lesser maximum penalty.

[14]     Any residual concern that the Judge’s starting point was too high dissipates once the level of discount is taken into consideration.  It has often been said that personal circumstances carry lesser weight in cases involving dealing in Class A drugs.  Although the Supreme Court has made it clear that personal circumstances may be taken into account in the sentencing process,8 they may receive less prominence in this area than in other areas of the criminal law.

[15]     The Judge applied a total discount of six months to reflect Mr Wire’s remorse and the efforts he had made to rehabilitate himself from his drug addiction. That was a generous discount by any measure and coupled with the discount allowed for the guilty plea, produced a sentence that was 33 per cent less than the starting point the Judge adopted.

Result

[16]     For those reasons, I do not consider that the sentence the Judge imposed can be regarded as manifestly excessive. The appeal is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Napier

Counsel:

E Forster, Hastings

8      Jarden v R, above n 4 at [12].