THE QUEEN v LYNN SUSAN WATSON [2001] NZCA 165 (24 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca36/01

THE QUEEN

V

LYNN SUSAN WATSON

Hearing:	24 May 2001
Coram:	Keith J Goddard J Chambers J
Appearances:	P L Borich for the Appellant K Raftery for the Crown
Judgment:	24 May 2001

judgment of the court DELIVERED BY KEITH J

[1] The appellant was sentenced in the High Court to concurrent terms of two years six months imprisonment on charges of possession of a class C drug (cannabis) for supply and offering to supply a class A drug (LSD).She was convicted and discharged on a charge of selling a class C drug (cannabis).She had pleaded guilty.She appeals against the sentence on the ground that it is manifestly excessive.

[2] The facts in brief are that the police carried out a straightforward undercover operation.A plainclothes member went to the appellant's home, asked about cannabis, was sold a tinny by the appellant and told her that she had a large supply of cannabis at her home should she require more.He asked about LSD and was told that she could obtain some.He agreed to come back the following day and buy fifty tabs of the drug.The next day the officer came back, at first unsuccessfully, because the appellant had no LSD at that time. The appellant used the officer's cellular phone to ring her supplier.She advised him she would have the tabs by 1pm and the officer said he would buy ten.Later that day he returned and a co-offender was at the appellant's home. The police officer paid $300 to the co-offender for the ten tabs of LSD.The charge of possession of cannabis for supply related to 17 tinnies found in an infant formula tin at the appellant's address.The cannabis weighed approximately thirty grams.

[3] The appellant, who is aged 28, has twelve previous convictions including nine involving drug related offending (although none were dealing offences). She has received five final warnings (given on two occasions) and has been sentenced to periodic detention.According to the pre-sentence report, she has "chosen to ignore" the warnings.As the sentencing Judge put it, she has simply not decided to change her ways as the result of her previous court appearances.The Judge indicated that whatever was the position about the extent of her cannabis dealing, she had no qualms at all about involving herself in what was a serious criminal offence of offering LSD for sale.For the Judge, the most important aspect of the sentencing, apart from the basic facts, was that neither of the offenders showed the slightest disinclination to become involved with dealing in LSD, a Class A drug.

[4] The Judge mentioned the support the appellant had, as indicated in testimonials.They indicated that she may have been taking some steps to set her life to rights by undertaking courses.The Judge referred to counsel's submissions and relevant decisions of this Court.In relation to class A drugs, he had considered the list of decisions which appeared in R v Stanaway [1997] 3 NZLR 129, 141 which indicates that in relation to LSD tabs in small numbers such as this, he should be looking at a commencement point of somewhere in the region of four years.In respect of the cannabis offences, in terms of R v Terewi [1999] 3 NZLR 62, the appellant came within category two, cultivation or the sale of cannabis for a modest commercial purpose, with a starting point of somewhere in the range of two to four years, a range which the Judge said had been modified a little by R v Edbrooke [2000] 3 NZLR 360.

[5] The starting point for the co-offender was approximately four and a half years.Having regard to his personal circumstances, and to this guilty plea, the Judge fixed the appropriate length of sentence at three years and three months.

[6] For the appellant the starting point was in the range of two to four years. Given her list of previous convictions and her participation in the matter, the starting point should be about three and a half years overall for the offending, taking into account that she did not actually sell the LSD but was the go-between.She also had a substantial amount of cannabis plant for supply.Balancing all the personal factors, which are significant, the appropriate term to be imposed on the main two offences was two and a half years.

[7] Mr Borich, for the appellant, reviewed the cases on possession of cannabis for supply, especially Terewi and submitted that the starting point of three and a half years was too high.So far as the LSD offence was concerned there was, it was submitted, no established tariff but, following a review of relevant cases, counsel submitted that a starting point of three and a half years was too high.The mitigating factors may have made a reduction of one-third appropriate.The mitigating factors included the early guilty plea, the lack of previous drug dealing offences (although this was offset by the previous drug offences), personal circumstances including her two children, her recent separation, her difficult upbringing (including abuse) and her significant drug problem, her change in motivation and the various references and testimonials provided.At the hearing before us he accepted that the one year reduction was substantial and could not be questioned.His essential proposition was that the starting points were too high.

[8] For the Crown, Mr Raftery stressed that in arriving at the figure of two and a half years, the sentencing Judge was obviously taking into account the fact that there were three offences.The class C offending alone undoubtedly, and properly, was classified within category two of Terewi as the appellant acknowledged.Therefore a starting point somewhere between two and four years was entirely appropriate.Then there were the previous drug offences and the apparent complete disregard of all final warnings.When the dealing, admittedly at the lower end, in relation to the class A drug was added, along with the fact that the dealing bore fruit, then the Judge was justified at arriving at three and a half years for the overall offending.The plea of guilty and other mitigating factors had received a significant and substantial discount.The sentence, said the Crown, was neither wrong in principle nor excessive.

[9] We agree with the sentencing Judge's starting point for the class A offence.Mr Borich emphasised that this was an offering for sale rather than actual dealing and that cases listed in the Stanaway judgment would justify a lower starting point.There is of course a difference between those two offences (although the maximum sentence is the same).Here however the appellant was substantially and actively involved over two days in setting up the deal. The facts can be equated to those in cases such as R v Diack [1991] 1 NZLR 281 and R v Connolly-Baker CA104/92 8 July 1992 where sentences of four years five months and three years three months were upheld (see Stanaway 141).We can see no error in the sentencing for this offence which, as the sentencing Judge recognised at the outset, involved a most important aspect : neither offender showed the slightest disinclination to become involved with dealing in LSD, a class A drug; and the inclination, it is to be added, was carried through to an actual deal.

[10] It may well be the case that the possession of cannabis for sale should be seen differently from the way it was apparently seen by counsel and the sentencing Judge.Terewi, like the cases it reviews, is a cultivation case (even if possession for sale might also be charged).Were it to be applied directly to cases involving possession for sale only, it might have a wider impact than was anticipated.It might lead to an inappropriate increase in sentencing, especially for small scale dealing (compare R v Smith [1980] 1 NZLR 412).

[11] We need not however take that matter (which was not addressed in any detail before us) any further since we agree that a sentence of two and a half years for the overall offending is entirely appropriate.In brief, as indicated, that follows from the serious character of the class A offending, the additional offending of being in possession of cannabis for supply, the appellant's record and the other matters (including the mitigating ones) mentioned by the sentencing Judge and in this judgment.

[12] The appeal is dismissed.

Solicitors:

Rice Craig, Auckland for the Appellant

Meredith Connell, Auckland for the Crown