R v Devine CA371/97 [1997] NZCA 211 (18 December 1997)

Last Updated: 19 April 2013

IN THE COURT OF APPEAL OF NEW ZEALAND CA 371/97

THE QUEEN

v

JODY TRULY DEVINE Coram: Henry J

Thomas J Tipping J

Judgment: 18 December 1997

_{(ex parte)}

_{JUDGMENT OF THE COURT DELIVERED BY TIPPING J}

The appellant pleaded guilty to possessing for supply a Class A drug, namely LSD, and possessing for supply a Class C drug, namely cannabis, and to supplying both LSD and cannabis. She was sentenced to 3 years imprisonment on each charge, concurrent, in the Christchurch High Court. The appellant now appeals against that sentence. After being considered by three Judges of this Court her request for legal aid was declined. The appeal has, therefore, been determined on the basis of written submissions.

The appellant was one of a number of people involved in the running of two drug houses. Set up by gangs in the suburbs, the houses are essentially retail outlets for drugs. In this case the houses were outlets for cannabis and some LSD. The police estimated that at some stages one of the properties was averaging 60-70 tinnies of cannabis a day and 50-60 tabs of LSD. This amounted to a turn-over of some

$3,000-$4,000 a week. The houses were, therefore, substantial commercial

enterprises. Although ultimately run by the gangs who set them up, people such as the appellant were, as the sentencing Judge noted, an essential link in the chain of supply.

The appellant contends that the sentence she received was manifestly excessive. She highlights four factors in support of this contention. They are:

1. the appellant’s previous criminal history was minor;

2. the appellant’s role in the operation of the drug houses was minor and she co-operated with the Police and pleaded guilty as soon as possible;

3. insufficient consideration was given to the contents of the pre-sentence report and the letter from the appellant’s mother explaining her background and raising the possibility of a rehabilitative sentence;

4. insufficient consideration was given to the imposition of a sentence of imprisonment within the range which might then have been suspended, a suspended sentence being said to be appropriate.

It is apparent from the grounds of appeal that the appellant wants this Court to substitute some form of rehabilitative sentence for the term of imprisonment. This theme is echoed in her written submissions, the thrust of which is that she should either be sent to Hamner Springs for treatment of her drug and alcohol problems or should receive a suspended sentence so that she can get on with her life. It is also important to note that the submissions of the appellant raise another matter which was not before the High Court. She is ten weeks pregnant. As a result she contends that it is in the interests of her unborn child that the sentence be changed.

In many respects both the grounds of appeal and the written submissions simply argue for the recommendation in the pre-sentence report that the appellant receive a sentence of supervision with a special condition to undergo and complete residential treatment. This sentence was, however, rightly rejected in the High Court. The appellant has pleaded guilty to dealing in substantial quantities of cannabis and LSD.

The involvement of LSD, a class A drug, is particularly concerning. Society’s condemnation of these hard drugs is reflected in the fact that dealing in such drugs carries a maximum term of life imprisonment. When the offending is viewed in this light it is apparent that a term of term of imprisonment was required. As a result a sentence of supervision was and is “completely unrealistic and inappropriate”.

The Court must reach this conclusion despite the appellant’s personal circumstances. We acknowledge the appellant’s tragic background and her drug and alcohol problems, problems which undoubtedly arise from her previous experiences. This Court is also pleased to see the positive efforts which the appellant has taken to rehabilitate herself both prior to and after sentencing. However, we have stated on numerous occasions that in cases such as these the personal circumstances of the offender can only be taken into account to a limited extent. Considerations of deterrence dominate the offenders personal circumstances. Only in special cases will a sentence other than imprisonment be imposed.

In R v Tomuri (CA 280/90 14 November 1990) the Court indicated that “with drug dealers special cases constituting a proper exception will not be common. One cannot categorise the factors that will make a case special. Each turns on its own particular facts”. The particular facts of this case cannot be said to be special so as to justify a non-custodial or rehabilitative sentence. While the appellant has a tragic background and while she has (of late) made some efforts to overcome her drug and alcohol problems, she is an intelligent young woman who willingly became involved in a commercial drug dealing operation. She must have been aware of what she was doing and nothing she has done since her offending indicates that a sentence other than prison should be imposed. As the sentencing Judge noted, the extent of the drug problem in Christchurch and other urban areas means that the deterrent aspect of sentencing must be emhasised. That means a sentence of imprisonment is inevitable in this case.

The comments outlined above are equally applicable to the submission that a suspended sentence should have been imposed. To consider such a sentence the Court must find that the offending warrants a term of imprisonment between 6 months and

2 years. In view of the scale of the operation, and in particular the involvement of a class A drug such as LSD, a sentence of more than two years was clearly called for. Therefore, a suspended sentence was not an option which was available to the sentencing Judge. He recognised this fact and took as his starting point 4 years and then gave a 1 year discount for the appellant’s co-operation, guilty plea and personal circumstances. The resulting sentence of 3 years was well within the range available. Indeed, it might even be said to be somewhat generous given the seriousness of the offending.

As a result the four points made by the appellant cannot stand. The Judge ignored the appellant’s previous convictions and he took into account her personal circumstances, her cooperation and her early guilty plea. He then considered both a sentence of supervision and a suspended sentence. In our view he rightly rejected each option. There are, therefore, no grounds to support the contention that the sentence was manifestly excessive.

The only other point to consider is what, if any, effect the appellant’s pregnancy should have on her sentence. It would appear that this fact was not before the High Court since no reference is made to it in the sentencing notes. The undesirability of keeping a mother and her newly born child in prison or rearing a child away from the mother are, of course, personal circumstances relevant to the sentencing process, even in drug cases such as this one. However, in R v Maney (CA 12/88 18 April 1988) this Court indicated that “[a]t the same time it cannot be taken as being always the case that women who are pregnant are immune from punishment in prison by reason only of that fact”. In Maney the Court upheld a 12 month term of imprisonment for a pregnant woman who was found guilty of possessing cannabis for supply. Similarly, in R v Sylvia (CA 316/88 7 December 1988) the Court upheld a term of 3½ years imprisonment for a pregnant woman who pleaded guilty to importing a Class C drug.

The underlying basis of the decisions in Maney and Sylvia is that there are administrative provisions, in terms of s94(1)(a) of the Criminal Justice Act, which allow women to be released early if they have given birth in prison. As a result it can be said that the framers of the statute never intended that the pregnancy of a woman should be a bar to the imposition of a prison sentence if that sentence were otherwise called for. As we have already outlined a prison sentence is otherwise called for in this case. Therefore, the sentence will not be changed. If the appellant is to be released early then it must by the Minister of Justice under s94(1)(a), or by the parole board or by the Governor-General exercising his prerogative of mercy.

The appellant’s appeal against sentence is dismissed.