THE QUEEN v NAN RANGININIA JONES [2002] NZCA 119 (31 May 2002)

IN THE court of appeal of new zealand

ca412/01

THE QUEEN

V

NAN RANGININIA JONES

Hearing:	29 May 2002
Coram:	Elias CJ Gault P John Hansen J
Appearances:	S Lance for Appellant J C Pike for Crown
Judgment:	31 May 2002

judgment of the court DELIVERED BY GAULT P

[1] A jury in the High Court at Rotorua found the appellant guilty of charges of selling a class C drug (cannabis) and offering to supply a class A drug (LSD).On 23 November 2001 she was sentenced to two and a half years imprisonment, the lead sentence being imposed in respect of the class A conviction with a concurrent sentence of 18 months for the class C conviction. She now appeals against both her conviction and sentence.

[2] The charges arose out of an undercover operation by the police targeted at the supply of controlled drugs in the Rotorua area.During the operation two undercover police officers were tasked with visiting various addresses within the Rotorua area in an attempt to purchase drugs.The Crown case rested on the evidence on one of those police officers who had been a purchaser.According to her evidence, she visited the appellant's address first on 14 December 2000. The co-accused Raewyn Pepene (a 21 year old woman who lived there with the appellant) came to the front door and had already in her hand a cannabis bullet.This was exchanged for $20.The officer then enquired whether she could "score trips" (purchase LSD) at that address.She was told to come back closer to Christmas when she might be able to buy some.She returned on 21 December.She again spoke to the co-accused Raewyn Pepene at the door.She purchased another cannabis bullet for $20 then she said she had been to that address a couple of weeks before and spoken about purchasing some trips.She asked if there was any chance she could buy some.Raewyn Pepene went away from the door for a brief period and then returned and told the officer to come back in about an hour.The officer returned to the address later the same day.As she approached the house Raewyn Pepene called out through the window and told her to go next door.She was offered cannabis bullets by another co-accused Edward Toka (he simply gestured towards an open bag containing cannabis bullets) but she indicated she wanted "a couple of trips".Edward Toka laughed at her, but the officer then explained that the girl next door said she could come over and get some.Edward Toka then made clear it was alright for her to buy some drugs and he supplied two tabs cut from a strip he had concealed in the lining of a cigarette packet.The officer paid $80 for the two tabs which was the amount she had been told would be required by Raewyn Pepene.

[3] All of that is background to what occurred on 10 January 2001 when the same officer returned to the appellant's house where she had previously dealt with Raewyn Pepene.On this occasion she was met by the appellant Ms Jones who sold her a cannabis bullet for $20.According to the officer she told the appellant she had been there before and been next door and "scored a couple of trips". She asked if there was any chance of scoring any more trips.The appellant replied that she didn't know if they were home next door and to come back in about an hour.The officer was told that the appellant would see if the people next door were there.

[4] The officer returned later in the day.First she spoke to someone else but then the appellant came to the front door.She told the officer they were not home next door.There was then this exchange:first the officer said "Oh, its no good then, we can't get any" and the appellant replied "You can, its just they are not there.I don't know when they will be home".

[5] In the course of cross-examination by counsel for the appellant the officer agreed that at no stage did the appellant offer to supply her with LSD.

[6] On 14 February 2001 the operation was terminated with the execution of a search warrant at the appellant's address.The police found one LSD tab and several strips of cut tinfoil similar to those used for wrapping cannabis for sale.They also found $1,965 in cash in the appellant's handbag.The appellant and Raewyn Pepene from the appellant's household and their neighbour Edward Toka were charged with various drug-related offences.The appellant was convicted after trial by jury of selling cannabis and of offering to supply the class A controlled drug LSD.She was acquitted on a further charge that she knowingly permitted her premises "to be used for the purpose of the sale and supply of controlled drugs namely cannabis and lysergide.

[7] With reference to the charge against the appellant of offering to supply the class A drug LSD the Judge directed the jury in the following terms:

55. Then there is Count 8.This charge relates to the two conversations between Constable Winikerei and the person she says was Ms Jones on 10 January. The constable says when she first went there that day she was met by Ms Jones at the door and the purchase of the cannabis bullet took place.She described the visit and what happened.Now Mr Lance read through to you the constable's evidence and his cross-examination later.And this he covered, not only the first visit, but after the constable went back about 4 p.m.She then described what happened then and she was cross-examined by Mr Lance.The Crown submits that if you put those conversations together, in the context of the circumstances in which they took place, then although nowhere in those conversations does the person who is alleged to be Ms Jones say "I offer to sell you LSD", the inference is those conversations are capable, as a matter of fact, of amounting to an offer. Mr Lance of course, says strenuously that that is not the case and he points to the constable's admission or concession if you like, that nowhere did she hear an offer.

56. Well that is perhaps not the answer;the question is whether you consider that those conversations in that context amounted to an offer.

57. Now stating that perhaps in more detail, in order to prove an offer the Crown must prove that Ms Jones on the second occasion, by using the words she did, and in the context of what was said on the first occasion, and in the circumstances surrounding the second visit, was indicating that she was ready on request to supply a controlled drug.

58. The Crown does not have to prove that the controlled drug actually existed, or that it was immediately available.What you have to focus on is the effect that those words were intended by the person saying them, to have on the mind of the person to whom they were said.

59. The constable said that in fact what the accused said to her left her with an opportunity to come back and obtain the supply.The fact that you may find the accused was only acting as an intermediary, or was prepared to act as an intermediary for someone else who would physically supply the drug, is irrelevant.In either case the accused would be party to that supply.

60. The second matter is the person who used those words, you must be satisfied, was intending that the supply be in respect of a controlled drug; and thirdly that the person who used those words was, in fact, Ms Jones.

[8] The appeal against conviction is confined to the class A conviction.In support of the appeal counsel advanced two grounds. They were first, that the evidence was not capable of constituting an offer to supply.The second was submitted that the trial Judge misdirected the jury in relation to the elements of what constitutes an offer to supply.It was said that there was no offer because in the course of giving her evidence the undercover officer accepted that from her point of view no offer to supply LSD was made by the appellant in the course of their conversation.

[9] In addition, the Judge's direction in para 59 of the summing-up was said to be inconsistent with the direction on the issue of offer in respect of a separate charge of offering to supply class C involving the appellant's co-offender Edward Toka where the Judge said:

When considering whether the gesture did amount to an offer you should focus on the effect it would have on the person seeing the gesture.

[10] This was said to be potentially confusing to the jury and conducive of a miscarriage of justice.

[11] These grounds are inter-related and rest upon what constitutes offer to supply under the Misuse of Drugs Act.Mr Lance submitted that the evidence of what was said, in the context, was incapable of being construed as an offer to supply.There was, he contended, no proposal or offer in the ordinary sense of that word.He submitted also that, where supply actually is effected facilitation by a person who does not supply the drug can make that person a party to the supply, but where supply does not eventuate, an offer to facilitate supply by someone else cannot amount to an offer to supply.Thus, while Raewyn Pepene could have been rightly convicted as a party to the supply of LSD by Edward Toka, Ms Jones could not be convicted of offering to supply LSD on the evidence of her exchange with the officer.

[12] We do not accept that an offer to supply in terms of the Misuse of Drugs Act occurs only when there is a proposal or offer in the sense of an invitation.As was said in this Court in R v During [1973] 1 NZLR 366, 373:

In the context of that section we have not the slightest hesitation in holding that one of the harms at which the section is plainly and un-ambiguously directed is an intimation by the person charged to another that he is ready on request to supply to that other drugs of a kind prohibited by the statute.

[13] An indication of willingness to supply is sufficient.Further, an indication of willingness to facilitate supply by another is sufficient.In R v Marr and Wilkinson CA130 and CA139/78, judgment 11 April 1979 this Court considered whether an intended intermediary, who indicated willingness to facilitate supply by another was rightly convicted of offering to supply.In that case Marr participated in such a way that, had supply eventuated, he would have been a party to that supply.Cooke J for the Court said:

The other ground put forward by Mr Atkinson, apart from adopting some submissions by Mr Fitzgibbon, concerned offers to supply.Mr Atkinson contended that the summing up was defective in that respect and the evidence not enough to establish an offer to supply by Marr.Mr Larsen submitted some propositions to us this morning which we substantially accept.He cited three cases in this Court:R v During [1973] 1 N.Z.L.R. 366; Gosney [1977] 2 N.Z.L.R. 130;and R. v. Brown [1978] 2 N.Z.L.R. 174.We think that these decisions and the terms of the Misuse of Drugs Act 1975 justify four propositions.

First, in this context an offer to supply has to be understood in an ordinary meaning rather than in any technical sense.Secondly, there may be more than one offeror in what would commonly be regarded as one transaction.Thirdly, an intermediary may be a party to an offer to supply no matter whether in the analysis of civil law he would be regarded as the agent of the vendor or of the purchaser.Putting that point in another way, the intermediary may make an offer to supply to someone who in civil law may be his own principal. Fourthly, in ss.6 and 7 of the Misuse of Drugs Act`offer to supply' is used in a wide sense and is well capable of covering an offer to arrange for someone else to hand over a drug to the person to be supplied.

[14] In view of that statement of the law, we see no error in the summing-up as it relates to the offence in issue.It might have been preferable, as a counsel of perfection, if the Judge had explained in greater detail that something more than a comment about the possibility of supply elsewhere is needed before amounting to an offer, but we do not consider any risk of a miscarriage of justice arose in this case from his not having done so.

[15] We do not find any inconsistency between the direction given by the Judge in relation to the charges of offering to supply respectively against Edward Toka and Ms Jones.On superficial consideration it might be said that when directing on the alleged offer by Edward Toka to supply, the Judge told the jury to focus on the effect on the person seeing the gesture said to constitute the offer whereas when directing on the alleged offer by Ms Jones he said the fact that the officer to whom the statement was made said she did not hear any offer to supply LSD was not the answer.It is clear, however, that on the first occasion the Judge was inviting the jury to determine what was meant by the gesture by considering, objectively, what it would convey to a notional person seeing it.That is not inconsistent with a direction that the true intent and meaning of the statement of Ms Jones was not necessarily determined by what the officer understood (subjectively).

[16] As is common in criminal offences, the intent of the person charged is the essential matter.That intent is to be assessed by what is said and done. What reasonable people will understand is a strong indicator of intention in the absence of other factors.So it is for a jury to decide whether what was said, in the prevailing circumstances, amounted to an intimation by the accused of willingness to supply a controlled drug.

[17] The exchange between Ms Jones and the officer could hardly be construed as no more than a direction to go next door to see if she could get LSD there. The invitation to come back in an hour (notably similar to the response the officer received on 21 December) to that same address not to the next door house and that she would see if they were there was more than a redirection. Her response to the question "does that mean we can't get any" that "You can, but they're not home" carries an assurance seemingly given with knowledge.

[18] Against the background of the previous supply of LSD tabs, only after invoking the referral from next door, it was open to the jury to link the two similar incidents in light of the relationship between Raewyn Pepene and Ms Jones and to infer that the conversation between Ms Jones and the officer took place on the understanding that Ms Jones' facilitation was necessary to secure supply.She could be regarded as having given that with her response "you can".It was for the jury to determine whether that in fact was the case.

[19] The appeal against conviction must be, and is, dismissed.

[20] The appeal against sentence was advanced on the ground that two and a half years imprisonment is excessive even taking into account the total offending. It was submitted in particular that the sentence is out of line with those imposed on others apprehended and convicted as a result of the same operation.

[21] When referring to the cannabis offence the Judge expressed the view that the sales of cannabis bullets were not isolated incidents and that Ms Jones was prepared to supply cannabis and assist with the supply of LSD as a matter of course as a low level supplier.

[22] It was submitted that this finding was inconsistent with the acquittal by the jury of Ms Jones on the charge of allowing the premises to be used.We do not accept that.That charge was specific and required proof of the supply of both cannabis and LSD from the premises.In the proved circumstances of the actual supply of LSD from the neighbouring house, the acquittal is understandable.That is not inconsistent with the view that Ms Jones was operating a "tinnie house" for the supply of cannabis.There was evidence upon which that view could be taken.

[23] In light of that finding we are inclined to the view that the more serious offending was in the sale of cannabis rather than in the unfulfilled offer to facilitate supply of a couple of LSD trips, even though LSD is a class A drug. We think that the lead sentence, embodying the response to the total offending, might better have been imposed in respect of the sale of cannabis.However, it is the actual sentence which we must focus on, the manner in which it was constructed is less important.

[24] As might be expected there were a great variety of sentences imposed arising out of the illegal activities uncovered in the course of the operation. The sentences ranged from five months imprisonment for the sale of two cannabis bullets to three years for a quite serious offender who had been involved in the wholesale supply of 200 LSD tabs to an undercover officer (R v Turnbull (unreported, Rotorua High Court, T2513/00, 24 May 2001, Elias CJ)).Of particular relevance was R v Whata (unreported, Rotorua High Court, T011757, Anderson J) where the offender received a sentence of 18 months imprisonment on charges of selling cannabis and supplying and possession for supply of LSD.The total amount of LSD in that case was ten and a half tabs. Anderson J considered that the appropriate starting point given that the offending was at the minor end of the scale, was two years imprisonment.The seriousness of the offending in that case was compounded by the fact that some of the offending in relation to LSD occurred while the prisoner was on bail.

[25] In R v Khan (unreported, High Court Rotorua, 15 August 2001, T011759, Randerson J), a starting point of two and half years imprisonment was taken on a charge of sale of LSD on three separate occasions.In that case the Judge also imposed a concurrent sentence of six months imprisonment for possession of cannabis for supply (seven bullets).

[26] We have reached the conclusion that the sentence imposed on the appellant for essentially the same type of offending as was the subject of Whata and Khan was excessive when compared with the sentences imposed upon them.While the appellant's prior convictions, including five drug-related convictions, support some distinction, they do not do so to the extent fixed by the sentencing Judge.We consider a sentence of imprisonment for 18 months is appropriate for this offender.

[27] Accordingly, the appeal against sentence is allowed, the sentence of two and a half years for offering to supply a class A drug is quashed and there is substituted a sentence of imprisonment for 18 months.We do not consider suspension of the sentences is appropriate.Further, because the offending occurred in the home we are not prepared to grant leave to apply for home detention.

Solicitors

Lance Lawson, Rotorua, for Appellant

Crown Law office, Wellington