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The Queen v Drever [2003] NZCA 17; (2003) 20 CRNZ 96 (20 February 2003)

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND
CA380/02

THE QUEEN


V


DEAN JOHN DREVER


Hearing:
19 February 2003


Coram:
Elias CJ
Panckhurst J
Paterson J


Appearances:
P Neutze for Appellant
GC de Graaff for Respondent


Judgment:
20 February 2003

JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ

[1] The appellant was convicted by a jury at trial in the District Court on 2 charges under the Misuse of Drugs Act 1975 and 2 charges under the Arms Act 1983. He was sentenced to a total of 5.5 years imprisonment made up as follows:
[2] At trial the appellant was found not guilty on three other charges under the Arms Act.
[3] The appellant appeals to this court on the basis that the sentence of 4 years for the drugs charges is excessive. He also contends that the overall sentence of 5.5 years is excessive in the circumstances.

Background

[4] The appellant was apprehended by police after reports from members of the public that a man was firing a gun in a residential street in New Lynn, Auckland and behaving erratically. There was ample evidence upon which the Judge was able to conclude that the appellant’s behaviour was bizarre and “under the influence of some sort of substance”. The members of the public who had encountered the appellant in this state were seriously alarmed. He was described as paranoid, claiming that people in trees were shooting at him and matters of that sort. The appellant had injuries consistent with chemical burns on his hands and feet. One arresting officer received burns to her skin from touching the appellant.
[5] Police exercised a search warrant at the appellant’s address in Islington Avenue. He was the sole occupier of the flat at the time. They found a well equipped methamphetamine laboratory and a number of volatile chemicals. They found the residue from methamphetamine manufacturing and associated chemicals and equipment. Traces of methamphetamine were found throughout the house and on many of the items. Scales and cutting agents and a small quantity of methamphetamine in a deal bag was also found. In a vehicle at the premises was a mobile methamphetamine cooking unit with traces of methamphetamine or precursor substances. The appellant’s fingerprints were found on the mobile unit in the house and on the equipment. Live rounds of .45” calibre ammunition were also found.
[6] There was no evidence as to commercial gain by the appellant. While ESR analysis demonstrated that methamphetamine had been manufactured (and the jury clearly accepted that evidence) it was not possible to date when the manufacturing occurred. Nor was it possible to demonstrate how much methamphetamine had been produced, although the number of empty containers of caustic soda provided a basis for inference of production of some scale.
[7] At trial the appellant had denied participation in the manufacturing of methamphetamine and pointed to others who used the property. One was a Miles Hayter, the leaseholder of the premises. Hayter was not charged with manufacturing methamphetamine. He was convicted separately of permitting premises to be used by Drever for that purpose. The jury verdict entails rejection of the defence that Hayter and not the appellant, was responsible for the manufacturing of methamphetamine.

The sentence in the District Court

[8] The Judge noted that the appellant continued to reject any suggestions that he was involved in the manufacture of methamphetamine or that he uses drugs. The Judge referred to the submissions on behalf of both the appellant and the Crown. She considered the relevant statutory provisions in the Sentencing Act 2002 and relied upon the decision of the Court of Appeal in R v Wallace and Christie [1999] 3 NZLR 159 which she considered had not been affected by the Sentencing Act. That case indicates the sentencing range for three categories of manufacturing offences. They are:
[9] In respect of the Arms Act offences the Judge noted that there is no tariff. The Crown had suggested the combination of drug offending and firearms involved evident danger to the public in the particular offending.
[10] The Judge placed the offending between category 2 and category 3 of the scale adopted in Wallace v Christie on the basis that while it was clear from the evidence that methamphetamine was manufactured, there was no evidence as to quantities and no evidence of monetary gain. Nor was any methamphetamine save in trace amounts found apart from a small amount less than 3 grams. The Judge accepted the Crown’s identification of the aggravating and mitigating circumstances. They had been put forward as the scale of the operation (to be discerned from the equipment, material, rubbish and drug paraphenalia), the possession of a firearm which was cocked and loaded and the fact that the appellant had no firearms licence and was under the influence of some substance while in possession of the pistol in a public place. The Crown had submitted there were no mitigating features in respect of the manufacturing of methamphetamine. Certainly none were referred to by the sentencing Judge. No threat to any particular individual was however made using the firearm, so that seriously aggravating circumstance was not present.
[11] The Judge referred to a Crown submission that the Sentencing Act requires sentences near the maximum term where the offence is within the upper range. In particular that submission was made in respect of the firearm offending which, in application of s7, was necessary to denounce the offender’s conduct and to deter others and to protect the community. As a result it was accepted by the Judge that a sentence imposed in respect of the firearm offence should be cumulative. There was no acceptance of guilt, the matter went to trial and therefore the Judge was not able to give any discount for plea or remorse. She concluded that the proper sentence in respect of the manufacturing count was 4 years imprisonment.

The appeal

[12] The appellant contends that the sentence for drug manufacture was excessive at 4 years in the circumstances of the offending and that overall the sentence of 5.5 years was excessive. Three submissions are made in respect of the major contention. First, it is said that the categorisation of the offending is not supported by the evidence. Secondly, it is submitted that because of delay, attributed to the police, the appellant was sentenced under the Sentencing Act 2002 which is said to prompt a harsher penalty than otherwise would have applied. Thirdly, reliance is placed on disparity of sentence with Hayter. He was dealt with on the basis of a $500 fine together with court costs $130 and witness expenses $25.
[13] Mr Neutze, in the course of argument conceded that the second and third submissions were make-weights. The substantial complaint on the appeal is that it was not possible on the evidence to identify the role of the appellant or the scale of the operation. In those circumstances it is submitted that the Judge should have treated the drug offending in the lower category and that 4 years imprisonment was excessive. It is argued that the Judge should have taken into account the onerous terms of bail in arriving at the appropriate sentence. Overall, it is maintained that the sentence of 5.5 years offends the totality principle.

The argument

[14] Mr Neutze for the appellant argued that since the extent of the manufacturing and any benefit obtained by the appellant from it could not be ascertained on the evidence, the appellant should have been sentenced at the lowest end of the scale and that the Judge was in error in categorising the offending as lying between categories 2 and 3 in the Wallace and Christie classification. In particular, Mr Neutze contends that there is no evidence that this was a commercial drug manufacturing operation. In addition to lack of evidence of scale, great emphasis was placed on the lack of evidence as to the particular role played in the operation by the appellant. On that basis it is submitted that his culpability cannot be put at the higher end of the scale.
[15] The Crown submission in response was that the lack of certainty as to the extent of production, value and any monitoring gain does not preclude a sentencing Judge from making an assessment of the scale of activity from other available evidence. Ms de Graaff refers to the recent decision of this court in R v Andrell (CA69/02, 29 August 2002) in which the evidence was sufficient to enable the sentencing Judge to infer persistent manufacture over a period of at least 4 months and a more than modest scale of operation from the quantity of chemicals discovered. In that case the Court of Appeal considered that the Judge was able to place the case between categories 2 and 3. It relied also on the presence of a mobile manufacturing kit and necessary chemicals to disclose a “degree of sophistication, organisation and determination to continue with his illicit manufacturing process”. Similar inferences were drawn in R v Atkinson, Williams and Wilson (CA546/99, 19 April 2000).
[16] Ms de Graaff in the present case points to the presence of scales (showing traces of methamphetamine), cutting agents and the large amount of drug making equipment. The presence of chemical fumes in the house when the police arrived was some evidence of recent manufacture although ESR evidence was not able to determine when it occurred. It was submitted that the appearance and behaviour of the appellant allowed an inference of recent manufacture to be drawn. The appellant’s fingerprints were found on the drug making equipment, much of which showed up traces of methamphetamine. The rubbish at the premises contained more than a dozen empty containers of caustic soda, which suggested that the quantity of methamphetamine produced would have been considerable. Although the Judge made no specific finding of the inferences she drew from that evidence, it is apparent from the photographs before her. The scale of operation was alluded to in the sentencing notes by reference to the photographs. Finally, the Crown pointed to the appellant’s evident familiarity with chemicals and his understanding of chemical processes, indicated by his comments to the police and literature in the premises.
[17] Mr Neutze argued that the medical evidence as to burns and other evidence as to the behaviour of the appellant was not necessarily suggestive of recent drug abuse and that there were doubts as to whether the manufacture was recent given the fact that there were no precursor chemicals in the house, no methamphetamine product in any quantity and given evidence that methamphetamine stains could last for considerable periods of time. In Andrill there was by contrast, considerable evidence from which the court could conclude persistent commercial manufacture. Drever unlike Andrill, was self employed at the time so no inference from the income available to him was able to be drawn.
[18] Some submissions directed at us by counsel for the appellant appeared to challenge the verdict in continuing to suggest that there were doubts as to who else may have been involved given the comings and goings by Hayter and another man who had access to the house. Mr Neutze submitted that there is no conclusive evidence that the mobile kit was associated with Drever. Even in connection with the house equipment he argued that only two of the six lifts of fingerprints from glassware were found to belong to Drever. Here the smaller number of fingerprints able to attributed to the accused, the absence of any evidence from which it could be inferred what role Drever played in any manufacture, the impossibility of dating the manufacturing process or identifying whether there was more than one manufacture made the inferences able to be drawn in other cases. In the circumstances it is submitted that the court is not entitled to categorise the offending as between categories 2 and 3 of the Wallace classifications and that the sentence was therefore excessive.

Decision

[19] The large quantities of equipment, the substantial detritus found in rubbish bags, the traces of methamphetamine (and indeed the small quantity found in the deal bag), the cutting agents and scales, all suggest a commercial operation of more than modest scale. Considerable planning and preparation is evident. The security system in place, the equipment and the mobile equipment in the car, all suggest some sophistication and persistence. The police who exercised the search warrant and the ESR experts who visited the house two days later were able to detect a strong smell of chemicals. Indeed, respirators were used by the ESR investigators. Fingerprints of the appellant show him to have been closely associated with the manufacturing as does the evidence as to his appearance when first apprehended. These matters are not really in contention given the jury verdict. No one else was charged. The defence case at trial that others were responsible for the manufacture was rejected by the jury in its verdict. The Judge who heard the evidence at trial was well able to assess the appellant’s culpability on the facts she relied upon in sentencing.
[20] The suggestion that the delay in trial has prejudiced the appellant because of the coming into effect of the Sentencing Act 2002 is misconceived. S84 provides guidance on the use of cumulative and concurrent sentences of imprisonment which make it appear that cumulative sentences are appropriate where the offending is different in kind. In that the new Act is declaratory of the pre-existing case law. In the present case the seriousness of both types of offending called for distinct recognition in the sentences. The manufacturing was organised commercial criminal offending. The pistol was loaded and cocked and carried into the streets when the appellant was clearly under the influence of drugs. The Judge was right to impose the sentences cumulatively.
[21] No disparity in sentencing exists. Hayter was charged with different offences. No direct linkage to the manufacturing was alleged or proved in his case.
[22] In the written submissions complaint is made that the Judge did not take into account the fact that the appellant was on bail terms which required him to live at his father’s address between 7 pm and 7 am. Whether or not that was an onerous condition, we do not accept it was one that the Judge was required to place any weight upon. As the Crown submits, the personal circumstances of the accused in a commercial drug offence are entitled to very little weight. As indicated, in the end this contention was rightly not pressed in oral argument.
[23] The combination of firearms and commercial drug offending is serious. The Judge is not shown to have started at an inappropriately high level in terms of the manufacturing. It was within the range identified in Wallace and Christie for category 3 offending, at the lower end of the scale. Although the Judge placed the scale of offending between categories 2 and 3, we think there is force in the submission that the evidence does not support a conclusion that this was manufacture on a substantial scale with operations extending over a period of time, criteria suggested for category 2 offending.. The broad bands identified in Wallace and Christie are not however rigid classifications. On the evidence we prefer to treat the matter as falling within category 3. But nothing turns on the characterisation because the Judge’s starting point for the manufacturing charge was within the range available for that category, in application of Wallace and Christie. There were, as the Judge accepted, no mitigating circumstances. Although the sentence was towards the upper end of the range, nothing put forward would cause us to doubt its appropriateness, had it stood alone.
[24] The firearm offence entailed danger to the public and was a serious one of its type, even allowing for the fact that the pistol is not suggested to have been presented at any one. The combination of organised criminal drug activity with a firearm was a particularly aggravating circumstance. Deterrence was appropriately a significant consideration in sentencing. A sentence of imprisonment for the charge was inevitable. As already indicated, we are of the view that the Judge was correct to impose the sentence for this offending cumulatively on the sentence for the drug offences. The sentence imposed was at the high end of what was available to the Judge when the facts are compared with those in the cases cited to us by the Crown (see Edwards (AP196/99, 5 October 1999, Chisholm J), Thomson (AP52/94, 10 March 1994, Tipping J), McDonald (CA108/00, 10 July 2000). If imposed as a stand-alone sentence, it may not have been possible to say that the 18 month sentence was excessive, although we have some doubts on that score which it is not necessary to resolve.
[25] It is necessary to consider whether the overall effective sentence is appropriate. An assessment of the gravity of the offending viewed as a whole is required to ensure that the total sentence is not out of proportion (s85 Sentencing Act 2002).
[26] The Judge does not seem to have considered the question of totality. The sentences imposed were each stern for the circumstances of the separate offending. The appropriateness of the firearm sentence in particular on a stand-alone basis is doubtful. Viewed in combination, we are of the opinion that the effective sentence of 5.5 years was disproportionate to the gravity of the offending, viewed as a whole. An overall sentence of 4 years 3 months is sufficient to fulfil the purposes of sentencing identified in ss7 and 8 of the Act.
[27] The appeal is allowed. For the sentences imposed in the District Court are substituted the following:

Solicitors: P Neutze, Auckland, for Appellant
Crown Solicitor, Auckland, for Respondent


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