R v Nathan CA126/97 [1998] NZCA 270 (5 February 1998)

Last Updated: 30 December 2023

IN THE COURT OF APPEAL OF NEW ZEALAND CA126/97

THE QUEEN

V

DEAN WAKA NATHAN

Coram: Gault J Henry J Keith J

Judgment: 5 February 1998

(ex parte)

JUDGMENT OF THE COURT DELIVERED BY HENRY J

The appellant appeared before a jury in the Christchurch District Court and was found guilty of conspiring to sell a class C drug and of permitting a premises to be used to sell the same. He was sentenced to four years imprisonment. He appeals against that sentence.

The appellant was a member of the Highway 61 motorcycle gang and registered owner of a property at 86 Vagues Road in Christchurch. There was unchallenged evidence from young people that the house was known as a place to buy cannabis and over a period of fourteen months a substantial number of cannabis sales were made from the property. The sentencing judge held that the gang was involved in the sale of cannabis in order to fund

its operations and described the conduct as “a long term retail, corner dairy type” cannabis selling operation.

After consideration by three Judges of this Court, the appellant’s legal aid application was declined. The appeal has been determined on the basis of written submissions.

The appellant had four main submissions. The first is that the sentence is out of the normal range for offences of this nature. However, the appellant was involved in a large scale cannabis operation and had a long list of previous convictions, including one for selling cannabis and a number for possession of cannabis. He could receive no credit for a guilty plea. A sentence of four years was within the range available to the sentencing judge in these circumstances.

The appellant’s second argument is that the sentence is disproportionate to those received by others involved in the operation. In particular, the appellant refers to Annett and Holmes, who received prison terms of 18 months and 13 months respectively. However, both these offenders pleaded guilty and neither was charged with conspiring to sell cannabis, which was viewed by the trial judge as the more serious of the charges in this case. The Judge expressly took into account those sentences.

The appellant’s third argument is that the Judge did not give adequate consideration to the fact that he had custody of a young son who suffers from a lung disorder. However, as the Judge said, personal circumstances carry very limited weight in offences of this nature and do not render the appellant’s sentence inappropriate in this case.

Fourth, the appellant argues that pleading guilty would have involved pleading guilty to selling cannabis, which was an offence he was acquitted of and, he maintains, did not

commit. The inclusion of the selling charge in the indictment did not prevent the appellant from pleading guilty to the charges of conspiring to sell and permitting a premises to be used and we are therefore not convinced by this argument.

The final submission is that details of the appellant’s attempts to prevent the house from being used to sell drugs were was not adequately brought out at trial. The appellant claims that, following a police interview, he spoke to the gang president about the use of the house and thought that he would stop it. These attempts were explained in the appellant’s evidence-in-chief and the jury must have considered them inadequate. In any event, this point has little relevance to an appeal against sentence.

Although perhaps at the upper end of the scale, we are not persuaded that the sentence is excessive and the appeal against sentence is therefore dismissed. The appellant originally appealed also against conviction. He has abandoned that, and it is therefore deemed to be dismissed.