NATALA MAREE GRIFFITHS v THE QUEEN [1999] NZCA 129 (28 July 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 207/99

NATALA MAREE GRIFFITHS

V

THE QUEEN

Hearing:	28 July 1999
Coram:	Tipping J Doogue J Goddard J
Appearances:	F.D. Steedman for appellant M.J. Thomas for respondent
Judgment:	28 July 1999

judgment of the court DELIVERED BY DOOGUE J

Introduction

[1] This is an appeal against a sentence of 18 months' imprisonment, suspended for 18 months, imposed in respect of the offences of possession of a class C controlled drug (cannabis plant material) for supply and possession of a class B controlled drug (cannabis oil) for supply.The appeal against those sentences is on the basis that the sentences are manifestly excessive.The appellant was also sentenced, in respect of both offences, to three months' periodic detention and to supervision for a period of 18 months, with a special condition that she undertake psychological assessment and treatment as directed by her probation officer and take treatment for any other matters that the probation officer directs.There is no appeal against those sentences.

Facts

[2] The appellant was born on 28 May 1981.On 29 March 1999 she was a passenger in a vehicle driven by the man with whom she was living when the vehicle was stopped by the police and he was asked to accompany them to the police station because he was a disqualified driver.The appellant saw her male companion put the bags in which he kept his drugs under the driver's seat. In accordance with a request by him, she took the bags and had them on her person when she went to the police station to enquire after her male companion. She was waitingoutside the police station for his release when she was approached by a constable, who asked her if she had any drugs in her possession, advising her that she was to be searched in accordance with s. 18(3) of the Misuse of Drugs Act 1975.The appellant immediately acknowledged that she had drugs in her possession.Located in her handbag were two small plastic zip-lock bags.One held a film canister containing 12 caps of cannabis oil with $80 cash in $20 notes.It was accepted at sentencing that the 12 caps would have contained approximately 6 grams of cannabis oil.The other zip-lock bag contained three and a half cannabis cigarettes and $30 cash in three $10 notes.The weight of the cannabis material is not known.The appellant was asked whose the drugs were.She started to say "Both of ours" but then changed it to say "mine".She then said that the drugs were to be sold so that she could purchase a car.She was charged indictably with the possession for supply offences, to which she pleaded guilty, and was sentenced.

Pre-sentence Report

[3] The pre-sentence report indicated the appellant had lived with her male companion since the age of 15, when she had left home because her mother suffered from mental illness.Her male companion was well known to the courts and Community Corrections.He was violent and controlling in respect of the appellant and in one of his worst fits of violence towards her he knocked out her front teeth.The appellant told the report writer that she held the drugs for her male companion.The report indicated that the appellant had made some effort to advance herself since leaving school in the sixth form without qualifications.The report writer expressed the view that the offending appeared to be a result of the appellant's dependence on and total obedience to her male companion.It was noted that the appellant was not herself a cannabis user.The appellant had been guilty of one previous offence in respect of the possession of cannabis oil in 1998, when she had been sentenced to 25 hours' community service.The report indicated that her sponsor on that occasion was delighted with her positive effort.

Sentencing Judge's Remarks

[4] The sentencing Judge accepted the facts as outlined above and the pre-sentence report, which he noted was written by an experienced probation officer who was very unlikely to be misled.He noted that the appellant was a person with some talents who had returned herself back to her home and was in a situation where she might be able to make some appropriate changes in her life. Other than a minor error as to the appellant's age, no issue is taken with the general thrust of the sentencing Judge's sentencing remarks in respect of the facts or the position of the appellant.

[5] The sentencing Judge in his sentencing remarks took the view that, in accordance with established law, the appropriate sentence was a sentence of imprisonment unless exceptional circumstances existed, and that in essence the same applied with respect to the suspension of any term of imprisonment.He went on to note that this was not a case where the commercial element was absent and that, regardless of the precise reason why the appellant was holding the drugs, she was associating herself with that commercial element.The Judge concluded that, although a sentence of imprisonment was inevitable, the exceptional circumstances relating to the appellant and the offending entitled him to suspend the sentence, and accordingly the sentences under appeal were imposed.Perhaps because of the manner in which counsel made their submissions, the sentencing Judge did not distinguish in the sentences imposed between the two offences before the Court.

Submissions for appellant

[6] Counsel for the appellant submits that in any event the sentences imposed are manifestly excessive in respect of the possession of the class C drug for supply and also in respect of the class B drug for supply.It is acknowledged that there were aggravating features in respect of the offending but it is submitted that those features are more than outweighed by the substantial mitigating circumstances.Among the latter are that the appellant was simply a party to the offending of her male companion, her age of 17 at the time of the offending, her position of submissive dependency upon her abusive male companion, her immediate assistance to the police and pleas of guilty, and the very minor quantities of the drug involved.Underlying the submissions is the fear that it is likely that the appellant, with her dependence for some four years upon a member of the criminal community, could re-offend within the 18 months' period of suspension.It is submitted that the overall criminality of the appellant is such that it is a case where a lesser sentence of imprisonment is required.

Submissions for the Crown

[7] For the Crown the offence of possession of a class B drug for supply is stressed, with reference to the aggravating feature of a previous offence of possession of cannabis oil.It is submitted for the Crown that the sentence imposed appropriately recognised the scale of the appellant's offending, namely that of a low level dealer, but it is acknowledged that it was at the upper limit for the quantities involved.It is submitted for the Crown that the sentencing remarks showed a sympathetic understanding of the appellant's circumstances and that the sentencing Judge had clearly taken all mitigating circumstances appropriately into account.

Discussion

[8] It is clear that inadvertently the sentencing Judge imposed a manifestly excessive sentence in respect of the class C drug offence which requires modification.However, the true issue is whether the sentence of imprisonment imposed in respect of the class B drug was within the range available to the sentencing Judge or was manifestly excessive.The sentence imposed represents a starting point of approximately two years' imprisonment.For the particular offending that, in our view, is clearly a manifestly excessive starting point. Having regard to the unusual circumstances of the offending, the age of the offender, and the limited quantities of the drug involved, we consider that a more appropriate starting point, even having regard to the earlier offence, would have been of the order of one year's imprisonment, and that it was necessary for that figure to be discounted to take note of the co-operation with the police and the early pleas of guilty.

Result

[9] The sentences of imprisonment imposed by the District Court Judge are varied by quashing the sentences imposed and substituting in respect of the class B drug offence only a term of imprisonment of eight months' imprisonment.In all other respects both as to suspension of the altered term of imprisonment for the class B offence and as to the non-custodial sentences the sentences of the sentencing Judge are affirmed.