THE QUEEN v MICHAEL JOHN HENDY [2000] NZCA 309 (2 November 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 328/00

THE QUEEN

V

MICHAEL JOHN HENDY

Hearing:	2 November 2000 (at Auckland)
Coram:	Thomas J Fisher J Panckhurst J
Appearances:	P S Dean for Crown L O Smith for Appellant
Judgment:	2 November 2000

judgment of the court DELIVERED BY FISHER J

Introduction

[1] The 36 year old appellant appeals against a sentence of seven and a half years' imprisonment imposed in the District Court following a plea of guilty to a series of charges of dealing in the class B controlled drug morphine. There were nine charges of supplying, three of possession for supply, two of conspiracy to supply and one of theft. All involved morphine sulphate tablets or MSTs. These can be crushed and used intravenously as morphine or readily converted to heroin.

Factual background

[2] Following an injury to his leg in the late 1980s the appellant was prescribed MSTs for chronic pain. In 1997 he began dealing in those MSTs which were surplus to his requirements. He then located other sources of supply. Two consisted of a couple who did not need most of their prescribed MST for the cancer and arthritis from which they respectively suffered. The appellant received MSTs over a period of about two years from one and about 18 months from the other. Another source was the appellant's own de facto wife who suffered from cancer. She was not a willing contributor but he stole MSTs from her on three occasions. Those were the appellant's sources of supply from 1997 to 1999.

[3] The appellant lived in Blenheim but sold most of the tablets to dealers in Dunedin. He was essentially a wholesaler selling for $50 to $80 per tablet depending on quantity. The dealers usually sold for something in the region of $80 to $120 per tablet. Of those he sold to in Dunedin, two were known to be dealers. One was Ms Johnson, an addict who also dealt to finance her habit. He supplied to her in Dunedin for a period of 16 to 18 months. She used some but sold most to a network of users.

[4] Another dealer to whom he sold was B. He supplied to B over a period of several months and stopped using him when B ran up a substantial debt for MSTs not paid for. Three other purchasers in Dunedin included E who was a Dunedin member of the Black Power gang, L to whom the appellant sold over a period of about two years, and A to whom he also sold on an irregular basis over about two years.

[5] The appellant also sold the MSTs wholesale in Blenheim. A dealer there, G, received these tablets from him in the first half of 1999 before her partner, M, took over for the second half of that year. They purchased about ten tablets a day at $60 each and on-sold them for about $80 to $100 to drug users in the Marlborough region.

[6] At three dates in late 1999 the number of tablets in the possession of the appellant was established and it was these which gave rise to the three possession for supply charges. There were 72 tablets, 70 tablets and 80 tablets on those dates respectively.

[7] In October 1999 Ms Johnson moved from Dunedin to Blenheim, joining the appellant there in a brief de facto relationship. There she resumed operations as a dealer at street level using tablets received from the appellant.

[8] The statement in the summary of facts that "over the two year period the defendant would have sold thousands of morphine sulphate tablets which are used to support the intravenous drug population within New Zealand" seems incontestable. Indeed there is some suggestion that the period of drug dealing was closer to three years than two.

[9] When the appellant was apprehended he co-operated fully and pleaded guilty at the first opportunity. He assisted the police in their inquiries prior to his conviction. After conviction he was prepared to give evidence about two offenders with whom he had had dealings.

District Court sentencing

[10] The sentencing Judge noted the quantity and period of dealing. She noted that although the appellant had previous convictions these were of little significance. She appropriately turned to R v Wallace and Christie [1999] NZCA 89; (1999) 16 CRNZ 443 as the primary guide for sentencing in this area. In that case this Court had said:

The cases reflect a considerable range in the seriousness of offending. They show 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 8 years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.

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 of 5 to 8 years.

For smaller operations, but representing commercial dealing, starting points of up to 5 years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise.

[11] Having regard to the number of tablets, the period involved and the obvious commercial element, the Judge took the view that this case came within the highest of the three categories referred to in Wallace and Christie. Accordingly she adopted a starting point of nine years from which she deducted 18 months for the plea of guilty, the admissions to the police, and the post-conviction assistance.

Disparity with co-offender

[12] In her written submissions Mrs Smith advanced two principal grounds of appeal. One was disparity in treatment compared with the appellant's co-offender Ms Johnson. Ms Johnson was sentenced to four years' imprisonment after a deduction of one year for the guilty plea and similar considerations.

[13] In her oral submissions Mrs Smith placed little emphasis on this ground, and rightly so. Of the numerous charges laid against the appellant only three were laid jointly with Ms Johnson. Most of the charges were advanced on an individual basis. The quantities involved in the charges faced by Ms Johnson were far smaller than those faced by the appellant. She was expressly sentenced on the lenient basis that she was:

... a vulnerable person in a background of violent relationships and labouring under a serious addiction. That, I am satisfied, made you an easy target for a drug wholesaler looking for a distributor. You would gain from that arrangement a ready source of drugs to feed your own habit which would have been uppermost in your mind. It seems to me that you were a person readily able to be preyed upon by a sophisticated wholesaler of drugs.

[14] We accept Mr Dean's submission that the appellant's case does not lend itself to any disparity argument.

Wrong category from Wallace and Christie

[15] Mrs Smith's second contention was that the Judge was wrong to place the appellant in the highest of the three categories of offending referred to in Wallace and Christie. She submitted that the appellant ought to have been in the second category of dealing "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".

[16] We do not think that the Judge could be criticised for her view that this offending involved at least "prolonged dealing", which on a literal reading might have taken it out of the second of the Wallace and Christie categories in the highest category. However, judicial guidelines of this kind are not to be interpreted and applied as if they were statutes. Nor are they intended to prescribe mutually exclusive categories in which there is no room for consideration of the individual circumstances of each particular case. They are essentially starting points.

[17] In the present case there are peculiar features. One is that the source of the appellant's supply was confined to the medical prescriptions of two couples, one of which consisted of himself and his own wife. Without in any way excusing his conduct, that source bears little comparison with the elaborate schemes for manufacture or importation found with most major drug operations. Another feature is that there is no evidence of substantial monetary profit reflected in lifestyle or accumulated assets. A third is that substantial credit was due for the special assistance provided to the police in addition to the customary deduction for an early guilty plea. When those considerations are taken into account we think that the sentence of seven and a half years was too high.

Result

[18] The appeal is allowed. In each case the sentence of seven and a half years' imprisonment is quashed and replaced by a sentence of six and half years.

Solicitors

L O Smith, Auckland for Appellant

Crown Solicitor, Auckland for Crown