THE QUEEN v ANDREW SISSON & VICTORIA THORNE-GEORGE [1999] NZCA 106 (8 July 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 194/99 ca 107/99

THE QUEEN

V

ANDREW SISSON

VICTORIA THORNE-GEORGE

Hearing:	28 June 1999 (at Auckland)
Coram:	Gault J Anderson J Goddard J
Appearances:	P J Kaye and M K Lowe for Appellants C B Cato for Crown
Judgment:	8 July 1999

judgment of the court delivered by ANDERSON J

[1] The appellants, who are de facto spouses, were each tried, convicted, and sentenced in the High Court on one count of conspiring to supply methamphetamine, contrary to s 6 of the Misuse of Drugs Act 1975, and two counts of money laundering, contrary to s 257A of the Crimes Act 1961.On the conspiracy count, which carries a maximum sentence of 10 years imprisonment, Mr Sisson was sentenced to eight years imprisonment and Ms Thorne-George to four years.On the money laundering counts, which carry a maximum term of seven years imprisonment, Mr Sisson and Ms Thorne-George were each sentenced to three years imprisonment to be served concurrently with the conspiracy sentences.Each now appeals against the sentences on the grounds that they were manifestly excessive.

[2] The Crown case, supported by legally intercepted communications over a period of two months and accountancy evidence in respect of otherwise inexplicable asset accretion over a period of 14 months, was that the appellants were running a sustained and large scale methamphetamine operation. The intercepted communications showed that Mr Sisson, and to a lesser active extent Ms Thorne-George, processed and distributed methamphetamine from their home over a lengthy period.There was evidence that Mr Sisson kept relatively strong supplies of the drug for his personal use and cut the purity to a lower level for commercial distribution.Discussions involving Ms Thorne-George show that she was quite prepared to go along with the illegal activity and facilitated it in ways such as handling the drug and/or its proceeds, managing the money derived from it, and taking an active role in at least some of the money laundering.The accountancy evidence was compelling. Notwithstanding that both appellants were throughout the relevant period in receipt of welfare benefits, their assets increased in the space of 14 months by more than $250,000.Whilst some of this was in the form of real estate and vehicles, $92,000 in cash was found buried at a property in Albany, owned by Ms Thorne-George, and the sum of $14,500 in cash was found in a drawer at the appellants' residence.One of the money laundering transactions related to the $92,000.The other transaction related to a sum of $12,815 applied in the part purchase of a Holden V8 motor vehicle, the transaction for which was negotiated by Ms Thorne-George.

[3] The sentencing Judge concluded that the only possible inference that could be drawn from the jury's verdict and from the evidence before the Court was that not only were the appellants involved in conspiracy to supply but also in actual supply.In the context of the case the money laundering could only have related to the supply of methamphetamine.In relation to Mr Sisson, the Judge considered that the major aggravating factor was the scale of the operation, motivated by greed in making such a large profit from it.He accepted that Ms Thorne-George did not play as significant a role in the operation but considered it obvious from the intercepted conversations and her involvement in the acquisition of assets and in the money laundering that she knew perfectly well what was going on and that she was at least to some degree actively involved.He considered her active participation in the enterprise to carry a significant degree of culpability.The money laundering charges arose out of the overall operation and were allied to the conspiracy charge.

[4] The offending by Mr Sisson must have begun within a year of his being released from a term of 6½ years imprisonment imposed in December 1993 for a significant importation by him of methamphetamine.That offence involved 448 grams of the drug.His pre-sentence report was unfavourable.Amongst other things it stated that the manner in which Mr Sisson described his knowledge of the drug, of how it is presented for use, and how it affects individuals, suggested the analogy of a "wine buff" talking about labels, taste, and the decanting process of wine tasting.It suggested that Mr Sisson accepted that analogy as a fair representation of his stance with regard to the drug.In the opinion of the writer of the pre-sentence report Mr Sisson's motivation to address his antisocial attitudes and beliefs was assessed as low.

[5] Before us Mr Kaye said that Mr Sisson took exception to the references to the wine analogy and to the assessment of low motivation to change.He informed the Court that his client was seeking a re-assessment by the Community Probation Service.However following the hearing of the appeal he advised this Court that such matter could not be taken further.In our consideration of the appeal we have attached no weight to the "wine buff" reference.We consider that the assessment of motivation seems consistent with the nature of this offending so soon after release from a sentence for serious drug dealing, and the willingness of Mr Sisson to conduct his criminal operation from the family home where he and his co-offender were raising two small children.

[6] In the course of his sentencing remarks the Judge observed that at least to the writer of the report Mr Sisson did not really indicate any motivation to change his attitude or approach, and that in view of the low motivation to address his antisocial attitudes and beliefs there was a strong likelihood that Mr Sisson would not be deterred by a longer sentence.In such circumstances the protection of the public from Mr Sisson's criminal activities was identified as a consideration in determining the length of sentence.

[7] In relation to Ms Thorne-George, the Judge recognised that the pre-sentence report painted a somewhat different picture.It showed that she had a drug problem rather than a drug dependency and, significantly, it showed a motivation to change.The Judge remarked upon a recognition that associations in the past had led Ms Thorne-George into her present situation and that there was a real desire to avoid that sort of implication in the future.He accepted she was not the driving force in the operation, but observed again that she was actively involved in it.As far as the money laundering charges were concerned he saw no difference between her role and Mr Sisson's.In respect of the purchase of the car she was the principal and in respect of the money buried on the Albany property the Judge saw no basis for distinguishing between the two appellants.

[8] An element of the case compelling sympathy is that the appellants have two young children, four and six years of age, who will be deprived of both their parents at a vital stage in their upbringing.The Judge recognised that one cannot help but feel very considerable sympathy for the children but that "it is in this sort of respect that the Courts have emphasised that when dealing with serious drug offending personal considerations are of little relevance."

[9] In his general observations in the course of sentencing the Judge had also remarked that it was well established in dealing with drug cases that very little heed could be taken of personal circumstances because a major purpose of any sentence in connection with a drug case was to deter.He referred to the community's abhorrence of the use and dealing in illegal drugs because of the destructive social and personal effects of the drug trade.He noted that this Court has recognised the psychological dependency induced by methamphetamine and the destructive effect that it can have on persons who habitually use it.

[10] Mr Kaye submitted on behalf of Mr Sisson that there was an unjust disparity between the sentence imposed on him and the sentence imposed previously by the High Court on one Stephen Malcolm whom Mr Kaye described as Mr Sisson's first lieutenant.Mr Malcolm had pleaded guilty to eight counts relating to various offences, including three in connection with the methamphetamine conspiracy.He was sentenced to concurrent terms of imprisonment of 3½ years for supplying the drug, 2 years for conspiring to supply it, and 3 months for possessing methamphetamine.

[11] It is the case that Stephen Malcolm appears to have been heavily involved in the operation of which Mr Kaye concedes Mr Sisson was the head.As an indication of that involvement, Mr Kaye referred to Mr Malcolm's featuring in some two thirds of the evidential intercepted communications.However the drug sentences imposed have to be examined not merely in the light of early pleas of guilty, but also a total sentence of 7½ years imprisonment which comprised sentences for the drug offences, receiving stolen property, escaping from custody, possessing a false passport, and perjury.In such a case the way in which a multifaceted sentence is constructed is less significant than the appropriateness of the sentence in total.The case is not therefore sufficiently comparable to warrant consideration in terms of submitted unjust disparity.When sentencing Mr Sisson, the Judge noted that the total sentence imposed on Mr Malcolm was for a number of offences and that he had no evidence to indicate that Mr Malcolm was profiting from the operation to the scale that Mr Sisson was.

[12] In support of Ms Thorne-George's appeal, Mr Kaye emphasised the following findings by the sentencing Judge:-

[a] Ms Thorne-George was not the principal party.

[b] She had no previous convictions.

[c] She had a motivation to change.

[13] Mr Kaye submitted, however, that the Judge should have made greater allowance than he did, not merely for those mitigating features but also for the fact that two very young children were to be deprived of both their parents during the terms of imprisonment.

[14] Although counsel had submitted to the sentencing Judge that a sentence capable of being suspended could be considered and an order for suspension made, he felt he could not realistically pursue that possibility on appeal.He nevertheless submitted that the sentence for Ms Thorne-George exhibited an unjust disparity when compared with the sentences imposed on both Mr Sisson and Mr Malcolm.He referred to a number of authorities including the recent decision of this Court in the appeals of R v Wallace and Christie, CA 432/98, CA 451/98, judgment 20 May 1999, and the cases referred to in that tariff judgment relating to methamphetamine.He also cited authorities such as R v Pham, CA 426/96, judgment 15 November 1996; and R v Vaughan [1982] 4 Cr.App.R.(S.) 83 which acknowledge that in extraordinary circumstances the welfare of children may bear on the sentencing of their parents.

[15] The Crown's submissions emphasised that Ms Thorne-George was a willing and avaricious assistant who benefited as much as Mr Sisson from the offending. Mr Cato submitted that it could be inferred that Ms Thorne-George was involved throughout the period of accumulation of assets and that during the period of electronic surveillance it was plain that she was assisting in various ways, including taking a significant part in the money laundering relating to the Holden motor car.It was appropriately remarked by Mr Cato that in both Vaughan and Pham the circumstances of the children were extraordinary.In Vaughan the appellant had three children.The oldest was only 11 and mentally backward; the second was 7 years old and suffered from eczema and asthma; and the youngest was only a few months old. In Pham there was a daughter who was a paraplegic.

[16] As we have previously noted, it is not appropriate to compare the sentences in respect of the present appellants with those imposed on Mr Malcolm.It is the case that there are significant points of distinction between Mr Sisson and Ms Thorne-George in relation to previous criminal history or absence of it, personal insight and willingness to change for the better.We think nevertheless that in all the circumstances both the distinctions and similarities are adequately recognised in the equivalent sentences for money laundering and the respective sentences for conspiracy, one of which is four years shorter and half as long as the other.

[17] In R v Wallace and Christie (supra) this Court examined a number of sentences in cases of Class B drug offending and concluded that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved.Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time, though not involving massive quantities of drugs or prolonged dealing, calls for a starting point in the range five to eight years.For smaller operations but representing commercial dealing, starting points of up to five years are appropriate.Whilst those observations were generally concerned with offences carrying a maximum term of imprisonment of up to 14 years and the present offending relates to conspiracy to supply, carrying a maximum penalty of 10 years imprisonment, the appellants' culpability as conspirators must be regarded as very high.The conspiracy lasted for a long period, comprehended significant financial returns indicative of sustained dealing, and found expression in activity which actually produced more than $250,000 profit in the space of 14 months.The nature of the offending itself is not such as to suggest that, having regard to the guidelines identified in R v Wallace and Christie, the sentences imposed were not properly open to the Judge.

[18] In the case of Mr Sisson there is the disturbing factor of large scale offending in connection with the same dangerous drug for which he had been previously convicted of importing and sternly punished.We think the sentence imposed on him was both condign and an appropriate warning to other would-be dealers in methamphetamine.As to Ms Thorne-George, she had willingly participated, motivated not so much by subordination to her dominant partner as by greed.The destructive criminal activity was carried out in the family home where, sadly, the two young children, for whom concern is now expressed, were being reared.Although the children are young, this case does not have extraordinary features, such as those in Vaughan and Pham (supra) which would justify a significant reduction in sentence so as to induce this Court to intervene on the grounds of present manifest excess.

[19] We are not persuaded that the sentences under appeal are affected by unjust disparity, reflect inadequate consideration of mitigating factors including the position of the young children, or for any other reason are manifestly excessive.The appeals are dismissed.

Solicitors

Crown Solicitor, Auckland