THE QUEEN v LAWRENCE ROY HOOKER [2003] NZCA 208 (28 August 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 184/03

THE QUEEN

v

LAWRENCE ROY HOOKER

Hearing: 25 August 2003

Coram: Anderson J

William Young J

Heath J

Appearances: M A Edgar for Appellant

J M Jelaś for Crown

Judgment: 28 August 2003

JUDGMENT OF THE COURT DELIVERED BY HEATH J

Introduction

[1]	On 2 April 2003, Mr Hooker pleaded guilty, on arraignment, to a total of 12 drug charges: namely, importing (x5), possessing for supply (x1), supplying (x3), conspiring to supply (x1) and conspiring to import (x2) a Class B controlled drug.The drug in question was MDMA – commonly known as Ecstasy.
[2]	The conspiracy offences carry a maximum sentence of 10 years imprisonment.All others carry a maximum sentence of 14 years imprisonment.
[3]	Mr Hooker was sentenced on 6 May 2003 in the High Court at Auckland.An effective sentence of 5 years and 6 months imprisonment was imposed; that sentence being imposed on each charge concurrently.In addition, a forfeiture order was made in respect of the sum of $18,100 identified as the proceeds of drug dealing.
[4]	Mr Hooker appeals against sentence on the grounds that the total term of imprisonment imposed was manifestly excessive.It is also submitted that the Judge placed too much weight on the charge of conspiracy to supply Ecstasy in imposing sentence.

The facts

[5]	The summary of facts to which Mr Hooker pleaded guilty revealed criminal conduct over a period between 7 May 2002 and 5 September 2002.During that time at least five packages, containing a total of 1459 Ecstasy tablets, were sent by a female associate in England (Ms Josling) to Mr Hooker in New Zealand.The five packages contained 300, 285, 345, 90 and 439 tablets of Ecstasy respectively.The Crown estimates the “street value” of those tablets was $116,720.Mr Hooker suggests the value is somewhat less than that.
[6]	Ms Josling moved to England from New Zealand.She has not yet been apprehended for her role in this enterprise.Following Mr Hooker’s arrest, the Police obtained access to various e-mails which passed between Mr Hooker and Ms Josling.It is clear that she has a ready source of Ecstasy and that she and Mr Hooker agreed to supply drugs in New Zealand on a profit-sharing basis.
[7]	Another female associate (Ms Halliday) based in New Zealand assisted Mr Hooker in his activities here.The level of her culpability was much less than Mr Hooker’s.She has been dealt with for her role.
[8]	Shortly before the offending commenced, Ms Josling hired a safety deposit box in central Auckland for a period of eight months.Mr Hooker was an additional authorised user of that safety deposit box.A personal identification number was selected by Mr Hooker with access to the safety deposit box being through finger scan and PIN.The PIN was selected on 7 May 2002, which was the same day that Ms Josling left for England.
[9]	During July and August 2002 Mr Hooker made payments onto Ms Josling’s Visa card.Those payments totalled $6660.Following Mr Hooker’s arrest the safety deposit box was searched by the Police and $21,295 in cash was located.Handwritten notes recording the sale of the Ecstasy tablets and the division of profits were also found in the safety deposit box.
[10]	Between 9 and 26 August 2002 a series of e-mails passed between Mr Hooker and Ms Josling.We were shown part of the exchange – an advantage denied to the sentencing Judge.The extracts from the e-mail exchange suggests that the arrangements between Mr Hooker and his source were less sophisticated (in an organisational sense) than appeared from the summary of facts.They also suggest that Ms Josling was planning to return to New Zealand soon.But those aspects must be balanced against suggestions of diversification into other drugs, a reference to “stock piling” product before Ms Josling returned to New Zealand and the possibility of an alternative supplier in England, known in the e-mails, as “major M”.
[11]	On 1 September 2002 a package containing 439 tablets of Ecstasy was intercepted at the International Mail Centre in Auckland.The package was addressed to “S Wong” at an address in West Auckland.The address of the sender in England appears to have been fictitious.
[12]	A controlled delivery operation by the Police and Customs officials was effected.Ms Halliday was at the address in West Auckland when the package was delivered on 5 September 2002.Shortly after the package was delivered Mr Hooker arrived at the address.The Police and Customs officers executed a search warrant.When the Police and Customs officers entered the house both Mr Hooker and Ms Halliday were located re-packaging the Ecstasy tablets into “deal bags”.

The sentence imposed

[13]	The sentencing Judge found a degree of organisational sophistication in the operation, referring, in particular, to the use of a bogus address and the methods used to avoid detection of the drugs when sent to New Zealand.He also referred to the planning involved in setting up the importation and supply arrangements.
[14]	The Judge accepted that the quantity of drugs was not high in comparison to other cases to which he had been referred for sentencing purposes.In determining the appropriate sentencing response to the offending the Judge was guided by R v Wallace [1999] 3 NZLR 159 (CA), particularly paras [30] and [31] at 172.On balance, the Judge took the view that the continuing nature of the operation and the method of its planning put the offending on the border of the first and second categories of offending mentioned in R v Wallace: see para [22] below.The Judge took, as a starting point, a sentence of 8 years imprisonment.
[15]	The Judge then made a generous assessment of the credit available for mitigating factors: the credit allowed was 2 years 6 months.Mitigating factors were a plea of guilty, the fact that Mr Hooker was a first offender, co-operation with the Police and expressions of remorse.The effective sentence imposed was one of 5 years 6 months imprisonment on each of the charges, to be served concurrently.
[16]	In determining a starting point the Judge noted that it was never intended that the Wallace categories be “cast in stone”.The Judge, in our view rightly, said that the sentence imposed must reflect the totality of the offending.

The competing contentions

[17]	On behalf of the appellant, Mr Edgar submitted that:
a)	The starting point for sentencing was pitched too high; and
b)	The sentencing Judge may have been unduly influenced by the conspiracy charges (relating to the period between 29 August and 4 September 2002).

Therefore, Mr Edgar submitted, the sentence imposed should be characterised as manifestly excessive.

[18]	Mr Edgar referred us to three authorities, in addition to Wallace.They involved cases in which, respectively, 5200, 6401 and 8169 tablets of various Class B drugs had been imported, supplied, possessed for supply or in respect of which there was a conspiracy to supply.Mr Edgar referred us to R v Watkins (CA 354/97, 26 February 1998) R v McGaw (High Court, Auckland, T001042, 11 July 2000, Fisher J) and R v Wong (CA378/02, 25 March 2003).
[19]	In support of his submission that the starting point for sentencing was assessed at too high a level Mr Edgar referred specifically to the relatively modest quantities of Ecstasy involved and the relatively small community of predisposed Ecstasy users whom Mr Hooker and his associates were supplying.He also emphasised that commercial motivations were not driving Mr Hooker’s activities as he had a well paid job.Mr Edgar suggested that Mr Hooker’s offending ought to be seen as limited to importation for supply to fellow users of Ecstasy for their private purposes, rather than anything more sinister.
[20]	On behalf of the Crown, Ms Jelaś submitted:
a)	Based on R v Wallace a starting point of 8 years was within the range available to the sentencing Judge;
b)	The credit for mitigating factors was, in any event, generous;
c)	Mr Hooker was one of two principal offenders engaged actively in multiple importations over several months for commercial purposes and financial gain.The value and quantity of drugs imported were not insubstantial.
d)	But for the intercepted package in September 2002 it is likely further importations would have been completed.
[21]	Ms Jelaś submitted that the credit for mitigating factors was generous because there was little co-operation with the Police on arrest, a conviction was inevitable in the circumstances and the personal circumstances of an offender carry little weight in drug sentencing.

Analysis of competing submissions

[22]	In Wallace at paras [30]-[32], at 172, this Court said:

[30]The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.

[31]Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range five to eight years.

[32]For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise.

[23]	The exchange of e-mails made available to us suggests the level of organisational sophistication was lower than might have been gleaned from the summary of facts.But, the system worked successfully for a time.The offending occurred over a period of five months.The content of the email exchange does nothing to dispel the Judge’s belief that Mr Hooker was likely to have continued with the enterprise had he not been apprehended.Three factors lead us to that conclusion: the hint of diversification into other drugs, the references to commercial activity (for example, “what is the retail like for squares” and “Great news, virtually all pre-sold”) and the possibility of an alternative source of supply from England through “major M”.
[24]	Although, as Mr Edgar submitted, lesser sentences have been imposed for greater quantities of drugs, volume is not the only consideration.The degree of culpability will be assessed with reference to the different factors that take on prominence in any particular case and by the application of the Wallace principles.Specific cases, the facts of which may differ, do, of course, provide some additional checks to maintain a just relativity of consequences for reasonably similar offences.
[25]	While Mr Hooker pleaded guilty on arraignment it was not the earliest time at which he might have been expected to plead guilty given the inevitability of conviction on the evidence available.It appears that his co-operation with the Police has been greater since sentence than it was before.
[26]	There is no doubt that Mr Hooker, aged 32 at the time of offending, held down a good job notwithstanding his social use of Ecstasy.It is clear, however, that Mr Hooker became involved in a social scene in which drugs played a major part.He moved from social use of Ecstasy into the acquisition and supply of the drug to acquaintances, with commercial motivations in mind.
[27]	It is possible that, over time, Mr Hooker would have been in a position to supply drugs to a wider range of people through their contact with his immediate customers.
[28]	We agree with Ms Jelaś that Mr Hooker’s personal circumstances can be given only limited weight.
[29]	The sentencing goals of deterrence and denunciation must be to the fore in a case such as this. Not only must the sentence deter Mr Hooker from reoffending but it must also act as a deterrent to others of like mind.
[30]	The Judge saw this case as on the border of category one and category two in Wallace.We see the case as being at the upper end of category two.With the additional information made available to us the Judge may or may not have altered his view of an appropriate starting point.We content ourselves with saying that the starting point used by the Judge was at the very top of the range available to him for offending of this type.The Judge was, however, very generous to Mr Hooker in assessing credit for mitigating factors.Many Judges would have allowed much less.In effect, the high starting point was more than offset by the generous credit for mitigating factors.In those circumstances we cannot say that the sentence imposed was manifestly excessive, although it was stern.
[31]	Neither can we say that the Judge put too much emphasis on the proved conspiracy.The possibility of diversification into other drugs and the use of an alternative supplier in the United Kingdom are expressly mentioned in the e-mail exchanges.That suggests, in the absence of apprehension, the offending was more likely to continue than not.

Conclusion

[32]	The sentence imposed was within the range available to the sentencing Judge.The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington