Wylie v Police HC Timaru CRI 2010-476-6

[2010] NZHC 1138

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2010-476-000006

AARON JOSHUA WYLIE

v

POLICE

Hearing:         30 June 2010

Appearances: M J de Buyzer for Appellant

C A O'Connor for Respondent

Judgment:      30 June 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against sentence.

[2]      Following a plea of guilty, the appellant Mr Wylie was convicted in the District Court of one charge of producing a class B drug, namely Ecstasy.  He was sentenced to a term of imprisonment of two years and four months.

Facts of the offending

[3]      In September 2009 Mr Wylie was living in a shed at the rear of a property in

Arthurs Point Road near Queenstown.  He was approached by an associate wanting to use the confined space of the shed for the purposes of extracting liquid Ecstasy,

WYLIE V POLICE HC TIM CRI-2010-476-000006  30 June 2010

which had been imported into the country in a Canadian maple syrup bottle.  The associate was the ringleader of a drug syndicate importing significant quantities of Ecstasy into New Zealand, principally from Canada.   Mr Wylie’s shed was presumably suitable because of its relatively remote location.

[4]      Mr Wylie agreed to the request, and the associate then provided him with some glass trays and several heaters to evaporate the solution.

[5]      The process took two days.

[6]      Mr Wylie’s involvement went beyond allowing the use of his shed.   On at least one occasion he checked the heat of the shed and checked there was sufficient gas for heating and the evaporation process to take place.

[7]      Mr Wylie himself received no monetary payment for his assistance.   The street price of the Ecstasy was calculated to be in the vicinity of $24,000 to $39,000.

[8]      The Judge accepted Mr Wylie’s agreement to help was a spur of the moment decision, but said there was ample opportunity for him to have withdrawn during the two days.

The District Court sentencing

[9]      The  information  before  the  District  Court  Judge  included  a  pre-sentence report.  It told the Judge the appellant was 35 years of age, a freezing worker who enjoyed strong support from his family.   The report stated that the appellant had previous convictions, but none for drug dealing.  His previous convictions were for disorderly behaviour, drink driving, careless driving and wilful trespass, with the most recent of these in 2007.

[10]     The appellant was recorded as having expressed remorse and having stated an intention to sever all ties with the associates that had got him into this trouble, as well as reducing his own intake of alcohol.

[11]     Because of this, and his limited criminal history, the report writer considered him motivated to address his offending and at low risk of reoffending.

[12]     The  report  concluded,  however,  that  because  of  the  seriousness  of  the offending, the writer was left with no alternative but to recommend a term of imprisonment.

[13]     In his sentencing notes, the Judge identified the aggravating features of the offending being the value of the drugs ($24,000 to $39,000), and the length of time over which the process of evaporation took place.

[14]     The Judge stated an appropriate starting point, having regard to the need for deterrence   and   accountability,   was   a   sentence   of   three   and   a   half   years’ imprisonment.  From that, the Judge deducted a third to take into account the “guilty plea and the other mitigating factors”, arriving at an end sentence of two years and four months’ imprisonment.

Grounds of appeal

[15]     On appeal, counsel Mr de Buyzer submits:

i)The sentence was manifestly excessive because the starting point was too high and the discount for mitigating factors too low.

ii)The Judge failed to consider the possibility of an electronically monitored sentence because he was under the mistaken belief there was no authority which would permit such an approach.

iii)      Disparity of treatment.

Discussion

[16]     In my view, having regard to the Court of Appeal decision of R v Wallace [1999] 3 NZLR 159, the starting point of three and a half years imprisonment was appropriate.

[17]     However, where the appellant is on stronger ground is in connection with the discount afforded mitigating factors relating to the offender personally.

[18]     In deducting a third from the starting point, the Judge stated he was doing this on account of Mr Wylie’s guilty plea “and the other mitigating factors”.

[19]     The guilty plea was made at the first reasonable opportunity, and accordingly, under R v Hessell CA170/09, 2 October 2009 the appellant was entitled to a third on account of that alone.

[20]     It follows the Judge must have made a mistake.   Either he has misapplied Hessell, or he has overlooked giving an additional discount on account of the other mitigating factors.

[21]     It would appear from reading the sentencing notes that the other mitigating factors the Judge had in mind were the lack of relevant previous convictions and the appellant’s charitable work.

[22]     Mr de Buyzer submitted the fact that the appellant was not motivated by personal gain, but out of friendship, should also be taken into account as a mitigating factor.  However, in my view that is more correctly and appropriately considered as the absence of an aggravating factor.

[23]     In my view, the appropriate discount for the other mitigating factors would have been in the vicinity of 15 per cent.

[24]     When combined with the one-third discount on account of the early guilty plea, that would have resulted in an end sentence of two years’ imprisonment.

[25]     That in turn would have rendered Mr Wylie eligible to be considered for home detention.

[26]     Mr de Buyzer strongly advocated home detention as the appropriate sentence. He submitted this was an exceptional case on account of the lack of any pecuniary motive, and that Mr Wylie was a strong candidate for home detention because of his remorse, his family support and his lack of previous relevant convictions, as well as the fact he had been assessed as being at low risk of reoffending.

[27]     There is no doubt there are cases where home detention has been granted for manufacturing drugs in a more serious category than Ecstasy, and to the extent that the Judge may have thought otherwise, he was mistaken.  See for example the cases referred to me by Mr de Buyzer, R v Allen, HC Auckland CRI-2004-004-007303, 24

June 2005, Winkelmann J; R v Russell HC Auckland CRI-2006-044-008275, 24 June

2008, Venning J; R v Cumming HC Hamilton CRI-2007-019-007501, 24 July 2008, Duffy J.

[28]     However, the absence of authority was not the primary reason for the Judge rejecting the possibility of a non-custodial sentence.

[29]     What the Judge actually said was:

[30]     I sit back and say to myself, would it be appropriate to impose a community based sentence as submitted by your counsel where someone has been involved in the production of $24,000-00 to $39,000-00 worth of a Class B controlled drug, namely ecstasy.   My answer to that is no.   My answer to that is that where there has been an involvement in a significant amount of drugs being produced that a sentence of imprisonment is appropriate.

[31]      A noncustodial sentence would not be following precedent and all the cases that had been placed before me.  A noncustodial sentence would have in my view be [sic] totally inadequate, particularly to reflect the purposes and principles of sentencing.  A noncustodial sentence would send completely the wrong message to others in the community who might be tempted to get involved in the production of drugs.

[32]      In my view the clear message that needs to be sent to all those in the community who might tempted [sic] to help and assist others to produce drugs is for them to simply say no and not get involved, knowing that they will face a stern penalty if they do get involved and do get caught.

[30]     That was a view that was open to him, and it is a view with which I agree.

[31]     The cases where home detention has been allowed tend to be exceptional cases  where  the  offending is  the  product  of  a  crippling drug addiction  and  the prisoners are making genuine attempts to address it.  There is thus a need for them to remain in the community so as to receive the treatment that is so desperately needed.

[32]     That was not the case here.  In my view, while home detention is certainly not a soft option and has a deterrent aspect, the offending here was so serious that the interests of deterrence and denunciation could not be appropriately and adequately met by home detention.

[33]     As for disparity, the argument is that a four-month differential between the appellant and a co-offender by the name of Aberdeen did not properly reflect the difference in culpability.

[34]     Mr  Aberdeen  was  sentenced  by  a  different  Judge.    He  had  allowed  his address to be used by the same syndicate as a postal address for the delivery of parcels on two occasions, knowing that the parcels contained drugs.  Mr Aberdeen received a fee for doing this: on the first occasion he was paid $1000, and on the second occasion between $1000 and $2000.

[35]     Mr  de  Buyzer  submits  there  were  significant  differences  between  the appellant and Mr Aberdeen.  In the case of Mr Aberdeen there was a greater level of pre-meditation, there were two offences, as well as another charge of being in possession of cannabis, and Mr Aberdeen received money for his assistance.

[36]     Mr Aberdeen was sentenced to a term of imprisonment of two years, eight months, from a starting point of three years, ten months.

[37]     In my view, the disparity between the two is not sufficiently great as to satisfy  the  R  v  Lawson  [1982] 2 NZLR 209 (CA) test of being gross and unjustifiable.

[38]     Further, in any event, for reasons I have already articulated I have decided to reduce Mr Wylie’s sentence by another four months.

Outcome

[39]     The outcome of the hearing is therefore that the appeal is allowed.   The sentence of two years, four months is quashed and substituted with a sentence of two years’ imprisonment.

Solicitors:

Berry & Co, Oamaru

Crown Solicitor’s Office, Timaru