THE QUEEN v FRANCES TE RURE BEAZLEY [1999] NZCA 141 (5 August 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca171/99

THE QUEEN

V

FRANCES TE RURE BEAZLEY

Coram:	Gault J Keith J Tipping J
Judgment (ex parte):	5 August 1999

judgment of the court delivered by keith j

[1] The appellant was sentenced to a total of two years imprisonment for three separate periods of offending.The appellant was found guilty by a jury on a charge of possession of cannabis for supply and sentenced to twelve months imprisonment upon conviction.The appellant was also sentenced to eight months imprisonment on two charges arising from December 1997, namely selling cannabis and possession of cannabis for supply, the sentences to be served concurrently with each other, but cumulatively with the previous sentence.The appellant had been sentenced in March 1998 to a sentence of eight months imprisonment, suspended for eighteen months, on one charge of possession of cannabis for supply.The Judge activated this sentence as to four months imprisonment, again to be served cumulatively with the periods of imprisonment previously imposed.The appellant appeals against the total sentence of two years imprisonment.

[2] In March 1998, the Police had executed a search warrant at the appellant's home and discovered three times the quantity of cannabis required to constitute dealing under section 6 of the Misuse of Drugs Act 1975.This was a continuation of the appellant's earlier activities.In March 1998, the appellant was convicted of one charge of possession of cannabis for supply, the charge relating to events occurring in May 1997.In December 1997 the appellant sold a gram of cannabis to an undercover operative and admitted having a quantity of cannabis on hand for supply.The appellant claimed at this time to be selling five ounces of cannabis every day.While this is likely to be an exaggeration, the Court is of the view that the appellant was assisting in running a not insubstantial cannabis reselling operation.The appellant pleaded guilty following depositions in this instance to one charge of selling cannabis and one charge of possession of cannabis for supply.

[3] Legal aid for this appeal was declined by the Registrar of this Court after the requisite consultation with Judges and an application for review of that decision was also dismissed by a Judge.The appellant has made written submissions and the appeal has accordingly been determined on the basis of them.

[4] The appellant raises four grounds of appeal.The first is that the Judge did not give full consideration to the circumstances surrounding the offending, in particular that the appellant had been left alone with five children two days prior to Christmas, and the hardship the sentence would impose upon her children.While this Court feels sympathy for the situation in which the appellant found herself and the effect of the sentence upon her children, it has been repeatedly stressed by this Court that personal circumstances carry little, if any, weight, in sentencing on drugs charges.As was stated by this Court in R v Wallace and Christie, CA 432/98, CA 451/98, judgment 20 May 1999, personal circumstances are relegated in importance to the need to deter dealing in drugs with their potential harm to the vulnerable.It is the appellant's decision to offend that has deprived her children of their mother, and while the Court is sympathetic to their needs, a sentence of imprisonment is inevitable for this type of repeat offending, as the appellant appears to have accepted.The appellant's personal circumstances are not sufficient to warrant a reduction in the sentence, particularly given the repeat offending.

[5] The second ground of appeal advanced by the appellant is that the sentencing Judge did not consider the guilty plea entered by the appellant for the 1997 offences.Further, the appellant submits the sentencing Judge did not consider the fact that the appellant had completed the periodic detention imposed as part of the sentence for the May 1997 offending.While the Judge spoke of the totality principle, the appellant submits that when viewed broadly with her change of lifestyle, the sentence is excessive and application of the totality principle should lead to a concurrent sentence.We agree with the sentencing Judge that it would be contrary to justice if the suspended sentence were not activated to some extent.The suspension of sentences is intended to act as a deterrent to further offending.In this case the suspended sentence has obviously been unsuccessful in achieving this aim.It is appropriate that the appellant be required to complete part of the term of imprisonment imposed. We consider half the sentence appropriate, especially given the completion of the periodic detention component of the sentence.Obviously the appellant's guilty plea would have been taken into consideration in imposing the sentence in March 1998, and thus further reduction is unwarranted.

[6] In the third ground of appeal, the appellant submits that the Judge failed to take into account the appellant's completion of the Taha Maori Programme at Queen Mary Hospital in Hanmer and her success in remaining free of drugs for 13 months.For these reasons, the appellant submits that a concurrent sentence would have been appropriate.The Judge did recognise the appellant's successful completion of the Queen Mary course, but this was not something the appellant entered voluntarily; it was part of the sentence imposed in March 1998, together with the periodic detention and the suspended prison sentence. It is apparent that the Judge gave credit for the successful completion of the course in activating only half of the sentence of imprisonment imposed.This was appropriate given that the course was not undertaken voluntarily but in completion of a sentence for similar offending.

[7] Finally, the appellant contends that the longer prison sentence creates undue hardship for her children who have already suffered enough.This submission has in essence been considered under the first ground of appeal discussed earlier in this judgment.

[8] Overall, we are satisfied that the Judge was justified in treating the sentences as cumulative, given that they are for discrete instances of offending and illustrate a continued pattern of behaviour with little regard for previous sentences.The sentences do not result in an aggregate term out of proportion to the gravity of the offences, viewed as a whole.Her recidivism also weighs against leniency.Accordingly, the appeal is dismissed.