THE QUEEN v DONALD GORDON DUNSMUIR [2003] NZCA 157 (23 July 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA439/02

THE QUEEN

v

DONALD GORDON DUNSMUIR

Hearing: 22 July 2003

Coram: Gault P

Baragwanath J

Panckhurst J

Appearances: R A B Barnsdale for Appellant

G C de Graaff for Crown

Judgment: 23 July 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]

The appellant was convicted after a jury trial in the High Court at Hamilton of one charge of supplying a Class B drug, namely methamphetamine.On 3 December 2002 he was sentenced to three years imprisonment.He now appeals against that sentence.An appeal against conviction was abandoned and is dismissed.

The facts

[2]

On 23 January 2002, an undercover police officer working on “Operation Kauri” visited the appellant’s home.He observed the appellant give a quantity of methamphetamine to the appellant’s partner, Ms Rangiwaia, who passed it on to him.In exchange, the officer paid $360.

[3]

The sentencing Judge treated the appellant “as a primary party who participated fully in the transaction”.He identified three aggravating features about the offending.First, the offence occurred just after the appellant had been released from prison after serving a sentence for convictions under the Misuse of Drugs Act.Only days after being paroled the appellant had re-entered the drug dealing community.Second, his criminal history included prior convictions in 1994 and 1999 “for drug dealing”.At least one of those convictions involved significant quantities of LSD.Third, the Judge referred to the appellant’s gang associations.This allowed him to access methamphetamine sources, while also receiving protection from the gang members.The likelihood that the appellant would continue to deal drugs upon release was seen as very high.A sentence of three years was considered appropriate for a “chronic recidivist”.

The appeal against sentence

[4]	Mr Barnsdale for the appellant advanced three grounds of appeal against the sentence.First he submitted that the Judge erred in imposing the sentence on the basis of unresolved disputed evidence.The main concerns arise out of three passages in the sentencing remarks where the Judge said:

Mr Douch submits that you were the dominant partner of the true supplier and effectively that Ms Rangiwaia was acting as your conduit.That submission has a great deal of force when your background circumstances are considered.For these purposes I treat you as a primary party who participated fully in the transaction.

And:

Third, there is your association with a particular gang and the opportunities it offers you.

And later:

You challenge much of the content of the pre-sentence report.I am satisfied, though, that its tenor is entirely correct;namely that you are, to a certain extent, proud of your record and your history as a dealer in controlled drugs.

[5]	The basis of the complaint is that s24 of the Sentencing Act 2002 sets out the procedure for dealing with disputed facts, and that the Judge should not have accepted the contents of the pre-sentence report without evidence to prove the statements beyond reasonable doubt.The facts and opinions in the probation officer’s report were not essential to the finding of guilt by the jury, and the appellant’s pride and history in drug dealing did not form any part of the evidence at trial.The evidence about the nature of the appellant’s involvement in the transaction was equivocal as to whether the appellant or Ms Rangiwaia was the principal party.The statement about the appellant’s gang ties also arises out of the comments in the probation officer’s report.The judge’s acceptance of these facts on sentencing deprived the appellant of the opportunity to challenge the allegations.
[6]	Counsel’s second argument was that the sentence of three years is manifestly excessive in the circumstances, having regard to the quantity of the drug sold and the monetary value of the transaction.Mr Barnsdale relied on this Court’s judgment in R v Wallace and Christie [1993] 2 NZLR 159 in submitting that the starting point of three years adopted by the sentencing Judge was too high.It was accepted that three years is within the range for smaller operations representing commercial dealings, but counsel says a transaction involving he sale of four points of methamphetamine valued at $360 is at the lower end of the scale.It was submitted that a starting point of between six and twelve months would have been appropriate.Counsel further argued that the Judge had placed too much weight on the appellant’s previous convictions.While the Judge was entitled to take the previous convictions into account under s9(1) of the Sentencing Act 2002, the need for deterrence was allowed to take precedence over other relevant factors.
[7]	Mr Barnsdale also submitted that the three year term cannot be justified in light of the three and a half year sentence imposed on Ms Rangiwaia who was not sentenced until recently and by another Judge.Her sentence related to one count of offering to supply a Class A drug, one count of supplying a Class A drug, five counts of supplying a Class B drug and one count of possession of methamphetamine for supply.The sentencing Judge adopted a starting point of four and a half years in her case.He then referred to the sentence imposed on the present appellant, saying “your offending was clearly of a much more marked kind than his”.The mitigating factors in favour of Ms Rangiwaia were her (late) guilty pleas, and the fact that she only had two previous convictions of a minor nature.The Judge considered an appropriate discount was one year, resulting in the sentence of three and a half years imprisonment.Counsel recognised that a difference in the length of the sentences of co-offenders is not in itself sufficient to found an appeal against sentence based on disparity.However, he submitted that in this case the difference is not consonant with the appearance of justice, given the greater number of charges faced by Ms Rangiwaia.
[8]	For the Crown, Ms de Graaff’s submission was that the sentence of three years was stern, but not manifestly excessive.Addressing first the disputed facts process under s24 of the Sentencing Act, counsel pointed the Court to ss26 and 28 of that Act.A court is entitled to direct a probation officer to provide a pre-sentence report under s26.Pre-sentence reports will inevitably contain matters of opinion, assessment of the risk of re-offending, and information from various sources.The offender has the right to challenge such a report under s28(2), which provides:

The offender or his or her counsel may tender evidence on any matter referred in any report, whether written or oral that is submitted to a Court under section 26 or section 33.

[9]	It was submitted that it rests on the appellant to challenge the contents of the probation report under s28.Yet no evidence was called and no hearing requested to determine the facts.
[10]	It was argued for the Crown that the fact that the provision for challenge under s28 was retained following codification in s24 of the law dealing with disputed facts indicates an intention to maintain a separate regime for challenging a pre-sentence report.Therefore, unless the matters in issue are relied upon as aggravating or mitigating features, s24 does not come into play.Of the “disputed facts” referred to by the appellant, the Crown submitted that the only one that was treated as an aggravating factor on sentencing was the appellant’s gang associations.Extensive evidence was led at trial about gang protection and intimidation, and also the availability of drugs through gang sources.Therefore the Judge was entitled to accept this as proven under s24.The Judge’s comments about the appellant being a chronic recidivist who took pride in his drug dealing were supported by the appellant’s criminal record, and in any event were treated as relevant to the risk of re-offending and the prospects of rehabilitation, rather than as an aggravating factor in the offending.Counsel argued that s24 cannot have been intended to require the prosecution to call evidence as to inferences that the Judge draws from facts or opinions.Ms De Graaff further submitted that it was open to the Judge on the evidence of the police officer to conclude that the appellant was a primary party to the transaction (as opposed to the primary party).
[11]	The Crown’s position was that the three year starting point was within the sentencing Judge’s discretion.Methamphetamine is one of the more insidious and dangerous Class B drugs.When combined with the appellant’s history of drug offending and the high likelihood of his re-offending, public safety demanded a stern sentence.It is also well established that offending that bears the hallmarks of gang links is inherently more serious:R v Mako [2000] 2 NZLR 171.There were no mitigating factors that the appellant could rely on.
[12]	Finally, Crown counsel submitted that the difference in the sentences of the appellant and Ms Rangiwaia was clearly justifiable in the circumstances.The sentencing Judges in both cases were aware of sentencings in other Operation Kauri convictions, and were mindful of the need for consistency.Even if the Judge showed leniency to Ms Rangiwaia in respect of her Class A drug offending, that does not entitle this Court to interfere with the otherwise appropriate sentence imposed upon the appellant.

Decision

[13]	The broad challenge to the approach adopted by the Judge on sentencing raises the relationship between ss24 and 28 of the Sentencing Act.In general we accept the Crown submissions.Section 24 is new, though it reflects prior case law to a large extent.It codifies the process by which facts are established for sentencing purposes.It provides first (subs(1)) that the court may accept any facts disclosed by the evidence at trial or agreed.The court must accept all facts, express or implied, that are essential to the verdict or plea of guilty.The section then deals with facts “asserted by one party and disputed by the other” and provides how that dispute is to be resolved in respect of both aggravating facts and mitigating facts as defined.
[14]	Pre-sentence reports are directed by the court.They are intended to provide background information relating to the offender and his or her circumstances, informed assessments and recommendations and information about available sentences.They report information obtained from the offender and his or her family.They will provide information about past offending and offenders’ responses to previous sentences.
[15]	In broad terms, the facts to which s24 is directed will be those relating to the circumstances of the offence whereas the facts and opinions in a pre-sentence report will relate to the circumstances of the offender.There will often be overlap however.Matters disclosed in a pre-sentence report may well be aggravating facts or mitigating facts as defined in s24.When they are, to the extent that they are facts asserted by one party and disputed by the other, the processes set out in s24(2) are to be used.On the other hand, matters of information and assessment provided to the court by a probation officer, if challenged, may be the subject of evidence in accordance with s28(3).That will be the appropriate process when issues arise concerning the accuracy of what is reported as having been told to the probation officer by the offender and of any opinion proffered on the basis of it.
[16]	In identifying the appellant’s criminal history as an aggravating factor, the Judge referred to a conviction in 1994 as for drug dealing.The offence for which he was then convicted was for possession of cannabis for which a fine of $175 was imposed.That should not have been characterised as drug dealing.The other drug offences for which he was convicted were all dealt with at the same time in 1999.There were ten offences over a three month period;three of offering to supply a class A drug, six of supply of a class A drug and one of possession of cannabis for supply.The sentence imposed was imprisonment for four years and six months.That record (which is not disputed), taken only with the present offence would seem to be somewhat overstated by the description of the appellant as “a chronic recidivist” whose “drug dealing [is] your main source of income, ... your primary occupation in life”.However, the Judge also had the pre-sentence report which we will come to.But even without that, the appellant engaged in this drug deal within a day or two of his release from serving a term of imprisonment for drug dealing.He was on parole.That is a serious aggravating factor.Whether taken separately or together with the record of previous convictions, there can be no doubt that this justified an increased sentence.
[17]	The only other feature expressly referred to by the Judge as an aggravating factor was the appellant’s gang association.Apart from the evidence given at the trial, the pre-sentence report records what the probation officer was told by the appellant as follows:

He advised the seriousness of his drug abuse and his trafficking of such substances, in terms of frequency, quantity and classification, increased in correlation to his association with similar criminal associates, including members of the Black Power gang.Mr Dunsmuir divulged his association with such criminal associates was necessitated by his desire of securing a source that could supply him with a more considerable “quantity” of “quality” drugs, which would consequently support his activities as “a drug seller”.He advised such association also proved beneficial in terms of providing him with “a safety-net”, which he clarified as meaning physical protection.

Donald Dunsmuir stated that while he is not a patched member, he “acts as a frontman” and “could be a member if he wanted” due to his long-term friendship with the gang’s president, who is his childrens’ godfather.He claimed he has not considered drug selling as his “source of income” since the termination of his last term of incarceration, in that he purportedly reduced such offending to that of “occasionally supplying or selling drugs to friends”However, he subsequently admitted he “still has some involvement” in the scene.

[18]	The probation officer then offered the assessment:

Donald Dunsmuir appeared to engage in the assessment process and presented as jovial, friendly, polite and seemingly co-operative.While he appeared to be of some intelligence, he seemingly exhibited some pride at his criminal connections and his past drug trafficking, which may maintain his high risk of re-offending.This has also been noted in a previous pre-sentence report (1999).

[19]	These comments plainly are those relied on by the Judge as the basis for his reference to the appellant’s gang associations and comments to the effect that the appellant was prepared to make his living from drug dealing.They are reported statements made by the appellant and an assessment by a probation officer in a report prepared for the court.Their accuracy could have been challenged under s28 at sentencing but that was not done.They do not constitute “facts asserted by one party” so as to fall within s24(2).Accordingly, the Judge was entitled to take these matters into account as he did.
[20]	The appellant was to be sentenced only for offending of which he was convicted.In this respect he was acquitted on another count charging possession of further quantities of methamphetamine for supply.His sentence was not to be increased by what it was thought he would be likely to do in the future unless a significant issue of the need to protect the community was shown.While repeat offending (particularly when on parole) justifies a more punitive sentence, that factor must not dominate to the point of suggesting further punishment for past offending.
[21]	The appellant was proved to have participated in one transaction.It was the sale to the undercover police officer of four “points” of methamphetamine crystals.While as crystals the drug was of high purity, the total quantity was small (126 milligrams) and the value of the transaction reflected that ($360).Mr Barnsdale submitted that the Judge had no basis for regarding the appellant, rather than his partner as the dominant party, but we do not consider he did that.After referring to the Crown submission to that effect, the Judge appears carefully to have expressed his view differently in the terms:

I treat you as a primary party who participated fully in the transaction.

[22]	Counsel accepted that he could not contest a view that the appellant was no lesser party than his partner.We think that is the view the Judge was expressing.
[23]	The appeal comes down to the question whether the sentence of imprisonment for three years was within a properly exercised sentencing discretion for this offence by this offender.
[24]	The small amount of the drug, albeit potent, places the offending at the low end of the scale of dealing.But the culpability was considerably aggravated by the circumstance that the offender was on parole having just been released after serving a substantial sentence for drug dealing.There are no mitigating factors.A stern response was called for, but we consider that the sentence of three years was excessive.We therefore allow the appeal, quash the sentence and substitute a sentence of imprisonment for two years.
[25]	It is unnecessary to deal with the argument that the sentence was out of line with others convicted as a result of Operation Kauri.
[26]	Because the new sentence is of two years imprisonment, we impose the standard conditions described in s14(1) of the Parole Act 2002 to apply for the period up to the expiry date of the sentence.
[27]	Leave to apply for home detention is declined in view of the offending while on parole.

Solicitors:

Crown Law Office, Wellington