THE QUEEN v BONITA MARSTERS [2000] NZCA 275 (18 April 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca46/00

THE QUEEN

V

BONITA MARSTERS

Hearing:	18 April 2000(at Auckland)
Coram:	Blanchard J Anderson J Robertson J
Appearances:	P Hayman-Haltan and N Wood for appellant KBF Hastie for Crown
Judgment:	18 April 2000

judgment of the court delivered by blanchard j

[1] The appellant was found guilty of manufacturing a class B controlled drug, namely cannabis oil, by a jury in the District Court at Rotorua.She was sentenced to three years imprisonment.She appeals against that sentence.

[2] On 7 July 1998 the police executed a search warrant at a residential address in Rotorua.It was suspected that the occupants of the address were manufacturing cannabis oil at the address.On executing the warrant the appellant was found, along with two others, in the kitchen area.Two pots full of liquid were on the stove being boiled up as part of the process.The evidence was that the appellant threw a pot containing isopropyl alcohol out of the kitchen window, as did her co-accused, Mr Kelly.A large quantity of empty gelatine capsules was found on the kitchen floor, as were other glass containers used in the manufacturing process.

[3] The appellant was spoken to and denied all knowledge of the manufacturing process.She persisted in that denial throughout.Her co-accused admitted knowledge of the manufacturing operation but denied being involved in it.

[4] The appellant appeals against the sentence imposed on two grounds:first, that the sentence was manifestly excessive and secondly, that the sentence was inconsistent with that of her co-accused.

[5] Although there was no clear evidence as to the quantity or value of the cannabis oil that was being prepared the judge treated it as a "smaller operation" and held that it was not unreasonable to draw the inference that the oil was to be sold or distributed.We consider that such an inference was entirely appropriate in the absence of any claim that the oil was for personal use and in view of evidence from another person who had been present in the house that manufacturing had been going on for several days.

[6] The judge referred in his sentencing notes to R v Wallace [1999] 3 NZLR 159, where this Court said that for smaller class B drug operations representing commercial dealing starting points of up to five years are appropriate.In this case where the drug in question was cannabis oil, a starting point towards the top of that range would have been too high, but it is apparent from the sentence imposed that the Judge must actually have started much lower for both offenders.There were substantial aggravating features. The first of these is the appellant's criminal history.She has some 12 previous convictions for drug offending.The most serious of these is a conviction in 1995 on charges of conspiracy to deal with both class A and B drugs for which she was sentenced to two and a half years imprisonment.At that time there was an unsuccessful appeal to this Court by her husband in which the Court observed that Mrs Marsters had been given a lesser sentence because of her expressed remorse and preparedness to address her drug problems (R v Marsters (1995) 13 CRNZ 571).While she produced references suggesting that she is now trying to lead a positive lifestyle and counsel in this appeal endeavoured to persuade the Court that she has a motivation to try to overcome her serious addiction to drugs, in our view the Judge in the present case was, given this history, fully entitled to view these assertions with "some degree of cynicism".The Judge considered that the appellant's continued involvement in drug related offending was an aggravating factor.We agree.In cases of this kind personal circumstances carry little weight. Moreover, programmes for treatment of addiction are available in prison for someone truly motivated in that direction.It also, rightly, was counted against Mrs Marsters as a second and serious aggravating factor that she was on bail on a firearms charge at the time of the present offending.

[7] Given the background to the offending referred to by the Judge and the inference reasonably to be drawn that Mrs Marsters was engaged in manufacturing cannabis oil on a small scale but for commercial purposes, we are satisfied that the three year sentence was within the available range.There were the aggravating features which have been mentioned, and in her case nothing which could persuasively be put forward as a mitigating factor.

[8] Ms Hayman-Haltan realistically accepted that "in isolation" three years was appropriate but emphasised the appellant's second ground of appeal which is that there is said to be a disparity when her sentence is compared with that imposed on Mr Kelly of 12 months imprisonment.His circumstances were, however, entirely different.He was 30 years of age, about 15 years less than her.More importantly, he had no previous convictions except on traffic matters.He had received a generally favourable pre-sentence report, the Probation Officer clearly being impressed with his prospects.Although, therefore, the two offenders were sentenced on the basis of equal culpability, the Judge was justified in treating them quite differently because of their very different circumstances.Mr Kelly's sentence appears to have been lenient but while he received a term of imprisonment only one-third of that imposed on his co-offender, we do not regard the differential as one which would cause an informed observer to conclude that something had gone wrong in the sentencing process (R v Lawson [1982] 2 NZLR 219, 223).

[9] The appeal is accordingly dismissed.

Solicitors

Crown Law Office, Wellington