THE QUEEN v PETER PAUL BARKER [2001] NZCA 281 (30 July 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 57/01

THE QUEEN

V

PETER PAUL BARKER

Hearing:	30 July 2001 (at Auckland)
Coram:	Elias CJ Thomas J Anderson J
Appearances:	M S Gibson for Appellant K Raftery for Crown
Judgment:	30 July 2001

judgment of the court DELIVERED BY THOMAS J

The offences and sentence

[1] Mr Barker, the appellant, was sentenced to 12 years imprisonment on 27 February 2001 in relation to 17 offences under the Misuse of Drugs Act 1975 for supplying Class A, B and C drugs. He has appealed against that sentence.

Background facts

[2] The charges arose following searches conducted by the Police on a number of separate occasions during 2000. On 30 January 2000, Mr Barker was driving along Karangahape Road at 9.30 am.A police officer, looking for possible drink-driving offenders, stopped the car and detected a strong smell of cannabis.He executed a search pursuant to s 18(2) of the Misuse of Drugs Act. A large number of drugs of various varieties were found in the car.Later that day, police searched Mr Barker's house and found other drugs, drug equipment, and $29,750 in cash.On 14 March 2000, a search warrant was executed at a lock-up storage unit in Penrose which had been hired by Mr Barker under a false name.The storage unit contained what the police in the summary of facts described as a "virtual supermarket" of Class A, B and C controlled drugs and $40,820 in cash. The drugs found during these searches included lysergide, cocaine, ecstasy, amphetamine, metamphetamine, morphine, D-pam and cannabis. On 22 March there was a further search of Mr Barker's home during which drug gear and $1,640 was found.Finally, on 27 and 28 March, search warrants were executed on two safety deposit boxes held by Mr Barker, one of which contained $115,400 and the other $250,080 in cash.

[3] In all, the drugs seized totalled 12.49 grams of cocaine in a highly pure state, 60 lysergide strips, 24.33 grams of metamphetamine and amphetamine, 55 tablets of ecstasy, 102 morphine sulphate tablets, 6.5 kilograms of cannabis and no less than 74 different varieties of other Class C controlled drugs, together with a total of $439,625 in cash.The Police's financial analysis of Mr Barker's income and expenditure for March 1998 to March 2000 indicated that he had a total unexplained income of $530,222 for that period.

[4] Mr Barker is now 49 years old.He is unemployed. He has a long history of drug use and has previously been diagnosed as an opiate, cannabis and amphetamine dependent.Until 1997 he had a largely conviction-free history. But in 1997 he was convicted of the manufacture and possession of morphine.He was sentenced to nine months imprisonment, suspended for 18 months, with one year's supervision to follow.At that time, Mr Barker participated in the Higher Ground Residential Rehabilitation Programme and made a significant effort to address issues surrounding his drug dependence.While in custody and on remand he also participated with some success in drug and alcohol education courses.He also re-established his relationship with his family.

The sentence

[5] The sentencing Judge viewed the offences as most serious.He accepted that the aggravating factors were the major scale of the offending, not only because of the number of counts but also because of the quantities of drugs involved, the large amount of illicit money confiscated, and the period of the dealing. The dealing covered a period of, at least, two years.

[6] It was also accepted by the Judge that Mr Barker was entitled to a reduction in his sentence to allow for his guilty plea.Following an unsuccessful opposition to a s 344A application, Mr Barker had pleaded guilty. Although a considerable time after his arrest, the Judge held that Mr Barker was entitled to a credit of one year for this plea.The Judge also accepted that Mr Barker is now deeply concerned about the effect of his drug addiction on his health and anxious to reinstate his family relationships.Other factors included the lack of gang involvement, firearms, money-laundering or syndication - although these matters are perhaps better characterised as the absence of aggravating features.

[7] The Judge adopted what Mr Gibson was to call in this Court an "incremental approach".In respect of the Class C charges he had regard to R v Terewi [1999] 3 NZLR 62, and took a starting point of four years imprisonment.Aggravating factors increased that figure to five years imprisonment in respect of two charges and, because they were representative charges, to six years in respect of another two charges.In relation to the Class B counts, the Judge thought six years appropriate for four counts and seven years for the two representative counts in that class of drug.Finally, on the Class A charges which were not representative counts, the Judge took ten years imprisonment as the starting point.On the two representative counts in this class, he took a higher starting point and arrived at a sentence of 12 years imprisonment.The sentences were made concurrent.

The appellant's submissions

[8] In this Court, Mr Gibson who appeared for Mr Barker, submitted that the sentence imposed was manifestly excessive.He argued that, in adopting an "incremental approach" the sentencing Judge had not considered whether the effective sentence of 12 years was appropriate for this kind of offending.He submitted that it is the total offending which is relevant rather than the number of counts, or the value or amount of the drugs.An alternative approach in this case, he argued, would have been for the Judge to determine what the ultimate sentence for all the offending should have been and to then apportion appropriate sentences in respect of the Class A, B and C offending.

[9] Mr Gibson further submitted that, while it is accepted that the value and amount of the drugs may assist in arriving at a starting point, it is inappropriate in the circumstances of this case to treat those same factors as aggravating features which justify increasing the starting point.He also urged that the sentencing Judge was at fault in not seeking to determine what offending was responsible for achieving the profits obtained from the drug operation.

Discussion and our decision

[10] We begin by reiterating three sentencing principles:

* With multiple offences the sentence must reflect the totality of the offending.

* In respect of multiple offences this Court will not insist that the total sentence be arrived at in any particular way, and

* the total sentence must represent the overall criminality of the offending and the offender.

We turn to each of these related principles in turn.

[11] First, the lead sentence should relate to the supply of Class A drugs. Regard should then be had to the offending relating to the Class B and C drugs to arrive at the totality of the offending.The Judge was obliged to stand back and view the offending from start to finish.It is only by doing this that a sentencing Judge can arrive at an assessment of the overall criminality.

[12] Secondly, in imposing a sentence which reflects the totality of the offending this Court will not declare a sentence manifestly excessive because of the particular way in which the sentencing Judge has chosen to construct the sentence, unless the method adopted results in a sentence which is overall clearly too high.This point was made recently by this Court in R v Williams (31 May 2000, CA 91/00) where it was said:

We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending.The issue is what an appropriate sentence for the various charges which have been admitted or proved.How that is constructed in the particular circumstances is a matter of individual discretion and assessment.

[13] Consequently, the validity or otherwise of Mr Gibson's criticisms of the sentencing Judge's approach would not be decisive unless we were also persuaded that the resulting total sentence can be said to be manifestly excessive.We take the view that the Judge's approach led him to impose a sentence which cannot be justified.

[14] Thirdly, the total sentence must be related to the criminality of the offending as disclosed in the multiple charges.Any number of this Court's decisions could be cited in support of the proposition that the total sentence must accurately reflect the overall culpability which is involved.See, for example, R v Swain (8 July 1992, CA 158/92).

[15] Assessing the criminality involved and applying the totality principle, we consider that a sentence of ten years imprisonment would be appropriate.The operation was undoubtedly a major commercial business producing massive profits; the variety of drugs involved was exceptional; large sums in cash deriving from the crimes were found; the offending related to a two-year period preceding Mr Barker's arrest; and there were six representative counts in the indictment relating to all classes of drugs.

[16] We take Mr Gibson's point that it is not possible to fairly assess Mr Barker's culpability without apportioning, or attempting to apportion, his gains to the three classes of drugs involved.It was to support this submission that Mr Gibson filed in the Court below an affidavit by Mr Barker showing that his income was primarily accumulated from the sale of cannabis. But Mr Barker subsequently accepted the affidavit was inaccurate.It cannot be accorded significant weight.

[17] We accept that there may be cases where the sale of a Class A or Class B drug is so evidently incidental to the sale of a Class C drug, such as cannabis, that it would be inappropriate to assess the criminality of the offender without having regard to that fact.But we do not consider that an apportionment is appropriate or practically possible in this case.Neither the quantity of the Class A nor Class B drugs sold were minimal.The large quantity of cannabis involved cannot be allowed to obscure that point. Representative counts covering a span of two years related to the sale of both Class A and Class B drugs.Moreover, the supply of Class A and Class B drugs, even if of much less significance in quantity and value than the cannabis sold, was part of an integrated commercial operation.Offenders who trade in all classes of drugs with the inherent risk in such trading that their customers will graduate from the less harmful to the more injurious drugs cannot expect the sympathy of the Court.

[18] We consider that there is merit in Mr Gibson's submission, however, that notwithstanding sentencing Judges may arrive at the total sentence in cases of multiple offending by different routes, the approach adopted by the Judge in this case led him to assess Mr Barker's level of criminality at a level which is plainly too high.Mr Gibson's description of the approach as "incremental" is not inapt.A preferable approach would have been to have regard to the totality of the multiple offending and assess Mr Barker's overall criminality based on that totality.In a case such as this it is difficult to separate out a starting point.The aggravating features define the criminality involved. But a reduction in the sentence for a guilty plea or other mitigating factors would not be inappropriate.Had the sentencing Judge adopted this or a similar format we consider that he would have assessed Mr Barker's criminality at a lower level than 12 years imprisonment.

[19] In the result, having regard to the totality of the offending, we consider that a sentence of ten years imprisonment is appropriate.While the prosecution evidence probably made Mr Barker's plea of guilty inevitable, we accept that some discount would ordinarily be appropriate to encourage similar offenders accept the inevitable.We would allow a year but do not propose to reduce the sentence in the circumstances of this case.Any reduction for a guilty plea is offset by the fact that part of Mr Barker's serious offending occurred while he was serving a suspended sentence for the manufacture of morphine.

[20] The appeal is therefore allowed.The sentence of 12 years imprisonment is quashed and a sentence of ten years imprisonment is substituted.

Solicitors

Meredith Connell, Auckland for Crown