THE QUEEN v KERRY JOHN WILLIAMS [2002] NZCA 188 (6 August 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 257/01

THE QUEEN

V

KERRY JOHN WILLIAMS

Coram:	Keith J Tipping J Anderson J
Appearances:	E C Bulger for Appellant A Markham for Crown
Judgment (on the papers):	6 August 2002

judgment of the court DELIVERED BY ANDERSON J

[1] This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001. They include submissions by counsel for the appellant both in support of the appeal and in reply to the Crown as well as submissions from the Crown.The relevant materials have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offences and sentence

[2] In the District Court at Auckland the appellant pleaded guilty to one count each of conspiracy to manufacture the Class B controlled drug Methamphetamine, cultivation of cannabis, unlawful possession of explosives and unlawful possession of a pistol.He also pleaded guilty to 12 counts of using a document with intent to defraud.He was sentenced to three years six months imprisonment for the conspiracy to manufacture Methamphetamine, one year three months imprisonment for cultivating cannabis, and one year on each of the other counts, with all sentences to be served concurrently.The total sentence was therefore three years six months imprisonment.

[3] Evidence of the conspiracy included laboratory equipment, chemicals and literature relating to the manufacture of Methamphetamine.The house in which this clandestine laboratory was found was also being used for the cultivation of cannabis, 33 healthy plants of which in various stages of growth were found in a room adapted for cultivation and kitted with appropriate equipment.The explosive and pistol counts related to a quantity of shotgun ammunition and a sawn-off shotgun.The fraudulent use of a document related to the negotiation of stolen cheques to obtain almost $16,000 worth of property.

The scope of the appeal

[4] The Notice of Appeal is in the form of an appeal against conviction and sentence but the letter under cover of which the notice was sent to this Court indicated that the appeal is against sentence.According to its tenor the appeal against sentence relates to the three and a half years imprisonment for conspiring to manufacture a Class B drug, 15 months imprisonment for cultivation of cannabis and 12 months imprisonment for possession of firearms. We detail these matters because the submissions of counsel for the appellant assume and contend that the appeal is limited to the lead sentence of three and a half years imprisonment.It appears to be counsel's submission that this Court is constrained to disregard the relevance of totality and context when considering the merits of the appeal.This Court is not obliged to, nor should, take such an unrealistic view.

Appellant's submissions

[5] The sole ground of appeal is that there is an unjust disparity between the sentence of three and a half years imprisonment imposed on Mr Williams for conspiring to manufacture Methamphetamine and a sentence of four years imprisonment imposed on an associate, Phillipa Hanley, who was convicted on her trial in respect of two counts of conspiring to manufacture the particular drug.

[6] Ms Hanley was tried in the High Court.The trial Judge Glazebrook J, in sentencing, expressed the view that Ms Hanley played a more central role in the conspiracy than Mr Williams and was more culpable.Counsel's submissions record that whereas in the present case the sentencing Judge took a starting point of five years imprisonment in relation to one count of conspiracy, then discounting it to three and a half years, the High Court took a starting point of five years in respect of Ms Hanley, guilty of two counts of conspiracy, and then discounted it to four years.Further, Ms Hanley's second offence was committed whilst on bail and she had a cannabis related previous conviction but this appellant had no prior convictions relating to drugs.

[7] Counsel referred to the well-known exposition of the principle of disparity appearing in R v Lawson [1982] 2 NZLR 219, at 223:

It is not merely whether the offender thinks he has been unfairly treated, but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and the offenders would think that something had gone wrong with the administration of justice.

[8] In counsel's submission the sentence of three and a half years imprisonment imposed on the appellant does not appropriately reflect the differences which can be identified between himself and Ms Hanley and their respective involvement in their conspiracy, as well as Ms Hanley's involvement in the conspiracy with another offender, Mr Jones, whom Glazebrook J considered the most culpable of the three.

[9] Counsel cited R v Tamati and Laxon CA 270/01 and CA 285/01 19 February 2002 as an example of the reduction of a sentence on the basis of unjust disparity.

The Crown submissions

[10] The Crown submitted that the disparity submission is misconceived in that it focuses exclusively on the charge of conspiracy to manufacture Methamphetamine without considering the other 15 charges on which Mr Williams was also sentenced.The principle of totality had to be taken into account. Further, the dishonesty charges in particular were serious in their own right, relating to two separate periods of cheque fraud and a significant amount of money.And, although Ms Hanley's involvement in the conspiracy was higher than the appellant's, the manufacturing laboratory was clearly a joint enterprise in a jointly occupied address and there was evidence of the appellant being found carrying chemicals used in the manufacturing process.

[11] In reply to the Crown, counsel for Mr Williams submitted that the appeal was only against the conspiracy sentence and, by implication, that was all this Court should consider.

Discussion

[12] As we have already indicated it would be quite unrealistic to confine our attention to the lead sentence.This Court has often remarked that the appropriateness of a sentence overall rather than its individual components is what must be examined.In this case the Judge was clearly astute to impose an overall sentence, invoked by 16 pleas of guilty, which would reflect the total culpability of the offending.The appropriateness of the lead sentence cannot sensibly be examined in a vacuum.It was a sentence which set the level of penalty for 16 counts, each of which was serious in nature.There is no relevant comparability with Ms Hanley and therefore no relevant disparity. We are far from persuaded that a reasonably minded independent observer would think that something had gone wrong with the administration of justice, even without differences in criminal history which further run counter to any suggestions of unjustifiable disparity.

Result

[13] For the above reasons the appeal against sentence is dismissed.

Solicitors

Layburn Hodgins, Christchurch for Appellant

Crown Law Office, Wellington for Crown