R v Peters CA12/03 [2003] NZCA 364 (14 May 2003)

Last Updated: 1 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA12/03

THE QUEEN

v

NINA DOVINE PETERS

Coram: Keith J
Blanchard J Anderson J

Counsel: H E Juran for Appellant G C de Graaff for Crown

Judgment (on the papers): 14 May 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1] This appeal against a sentence of three and a half years imprisonment imposed for drug offences has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written xsubmissions which have been received in accordance with R29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

The offences

[2] The appellant was committed for trial in the District Court at Manukau on an indictment alleging a number of offences relating to the Class B controlled drug

R V NINA DOVINE PETERS CA CA12/03 [14 May 2003]

methamphetamine. She, along with two co-offenders, pleaded guilty on the morning of trial to four counts of supplying methamphetamine and one count of offering to supply that drug. No evidence was offered on the remaining counts in the indictment relating to the appellant and she was discharged in respect of them pursuant to s347 of the Crimes Act. How proximately to trial the appellant indicated a willingness to plead is not stated but it is plain that the plea was far from early. As such, it warranted only a limited discount.

[3] The agreed statement of facts showed that on 14 September 2001 the appellant offered to supply methamphetamine to an undercover police officer and that between 23 October and 5 December, a period of only about six weeks, she in fact supplied methamphetamine four times to that police officer. Twice the drug was in its potent crystalline form and on the other two occasions was pure powder. On the four occasions the drug was sold for, respectively, $2,000, $1,900, $2,000,
$1,000, a total of $6,900. Once, however, the appellant acted only as an intermediary and received $100 commission. On another occasion, the police officer still being present, a third person bought from the appellant a snap-lock bag containing powder for a purchase price of $100. There were other indications that the sales to the undercover police officer were not the appellant’s only involvement with the drug.

Sentencing information

[4] The District Court Judge had before him information showing that at the time of the offending the appellant was aged 24 years and had been living with the father of her child for some years and that the relationship had become unstable, isolating and abusive. Within a few months of arrest the appellant left that partner and moved to another district where she formed a relationship with another man. Her upbringing had involved her being cared for by grandparents, both of whom died before she was 15. She left school without qualifications and was a mother at 16.

[5] The appellant’s previous forensic history involves only a few minor matters, dealt with by way of fines and of no real significance in terms of present sentencing.
[6] After the appellant left her abusive partner she managed to remain drug-free, notwithstanding a previous methamphetamine dependency, for the seven months preceding her plea and custodial remand. Whilst in custody she participated successfully in various self-improvement courses. She expressed to the sentencing Judge deep remorse for her actions and a determination to stay drug-free. Written testimonials to the Court were very supportive in their tone and laudatory of her personal qualities.

The District Court sentence

[7] In his sentencing notes the learned District Court Judge referred to all those mitigating features discussed above, in detail and as to their implications of remorse, rehabilitation and other mitigation. He noted the submissions of counsel for the appellant that the operation was relatively small scale, that the appellant was a middle person and that an appropriate starting point would be in the vicinity of two and a half to three years with a final sentence of about two years or less. He held that this was an organised methamphetamine operation involving repetitive offending by the appellant, clear planning and premeditation and involving drugs of a relatively significant value and quantity. Also of significance was the quality and potency of the drug. Mitigating factors included the lack of previous convictions for drug matters, the positive pre-sentence report, the expressions of remorse and contrition, the motivation and desire to change and the appellant’s age. The learned Judge then made the following observations:

[18] Of course, however, I must hold you, Ms Peters, accountable for the harm that you have done to the community at large, in the sale of these serious and potent drugs. I have got to promote in you a sense of responsibility and an acknowledgement of that harm, and to denounce your conduct, because drug dealing of this scale is harmful to the community, clearly. It must be looked at on the basis of deterrence not only for you but for other likeminded offenders who might wish to commit the same or similar offences. The community, it is clear from all of the decisions and from a matter of common sense, need to be protected from this sort of drug dealing, and the consequences of the taking of drugs. I need to take into account of course your rehabilitation, and I intend to do that.

[20] Having said all that, it is my view, that I share with the Crown, that the appropriate starting point, Ms Peters, for your offending is five years imprisonment. There was after all a number of counts involved; a repetitive dealing situation involving significant amounts of money, and I treat with

some scepticism the claim that you were involving yourself in this continuing activity with the undercover officer simply to ‘get her off your back’, in your words. Clearly you had involved yourself in the whole operation to a significant extent and that must be reflected in the sentence.

[21] I give you significant credit nevertheless for the matters that have been raised by your counsel and which I have referred to in detail. In all the circumstances I do not differentiate between the charges either, and on each of them you are today sentenced to three and a half years imprisonment.

Appellant’s submissions

[8] The ground of appeal is that a sentence of three and a half years imprisonment is manifestly excessive. Counsel acknowledged that the leading relevant authority is R v Wallace & Christie [1999] NZCA 89; [1999] 3 NZLR 159. It was common ground between the appellant and the Crown that the offending came within the category of smaller operations but still representing commercial dealing which, in terms of that authority, could attract a starting point of up to five years imprisonment. Counsel also candidly acknowledged that the repetitive nature of the offending with its planning and premeditation was a major aggravating factor but submitted, as in the District Court and asserted by the appellant herself to the Probation Officer, that the appellant had been repeatedly harassed by the undercover police woman and that was a major contributing factor. He also asserted that the appellant’s role was that of a middle person.

[9] Counsel submitted that the sentence in this case was “out of kilter” with four particular authorities relied upon. One of these was R v McLean CA283/98, 3 December 1998, where the offender had pleaded guilty to one count of supplying methamphetamine and had a sentence reduced on appeal to 19 months imprisonment. In R v Masters (1996) 13 CRNZ 571 a sentence of three and a half years imprisonment was upheld for offences relating to methamphetamine and cocaine by a prisoner with a lengthy list of previous offending. In R v Owen CA473/93, 10 May 1994 a sentence of two and a half years was upheld following conviction on trial for involvement with methamphetamine valued at between
$30,000 and $63,000. That offender was part of an organisation but not at the highest level. In R v Jacomb CA397/95, 13 June 1996, a sentence of three years three months was upheld following pleas of guilty to six counts of drug dealing
including one of supplying amphetamine. The transactions involved payments of
$16,500 but the quality, amount and price for the methamphetamine is not known.

[10] Counsel submits that the sentencing Judge misunderstood the Crown’s submission in respect of a starting point when he said that he shared with the Crown the view that the appropriate starting point was five years imprisonment, as mentioned in the passage from the sentencing notes, paragraph [20] thereof, referred to above. What in fact the Crown submitted, as can be seen from the Crown’s written memorandum of submissions on sentencing with which this Court has been provided, is in these terms:

Counsel for the Crown submits that this case falls within the third category discussed in Wallace and that it would be open to Your Honour to adopt a starting point of up to five years imprisonment in respect of Ms Peters given these factors (before making any allowance for mitigation).

[11] In submissions in reply counsel for the appellant points out that the four authorities, referred to earlier in this judgment as relied on by the appellant, were the authorities provided to the learned District Court Judge for his consideration and were relied on by both the appellant and the Crown for sentencing purposes. The submissions in reply reassert the appellant’s plea that she was in the middle and simply obtaining drugs to pass them on but nevertheless accepts her culpability and remains remorseful.

Crown submissions on appeal

[12] Counsel for the appellant emphasised that the facts disclosed an organised methamphetamine supply operation and the offending involved the supply of a dangerous drug in significant quantities for significant amounts at high levels of purity and potency. The dangerous character of the particular drug has been the subject of observation in cases in this Court and in learned articles. The four authorities previously referred to could be distinguished on the basis that in some cases they were conspiracies and not substantive offences, purity levels were low, transactions were limited or involvements were peripheral. The guilty pleas in this case were entered at a late stage and the allowance made for personal factors in an area of offending where such are regarded as carrying little weight was generous.
The term imposed was not “out of kilter”, the Judge had taken account of every relevant matter and had imposed a sentence which although stern was not manifestly excessive.

Discussion

[13] As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. This is very much such a case here.

[14] A starting point of five years imprisonment suggests that a case borders on offending which has those characteristics of substantial commercial activity, involving sophistication and organisation extending over a period of time, warranting a starting point in the range of five to eight years, referred to in R v Wallace at para [31]. This is hardly in that league. In the District Court the Crown’s submissions did not assert that the appropriate starting point was five years and the only authorities placed before the learned District Court Judge could not support such a proposition. The starting point actually adopted was unacceptably high and the features of this case should not be taken as any indication of the level of culpability which warrants a five year starting point.

[15] On the other hand, the discount of one and a half years was, as the Crown points out, generous. The guilty pleas came at a very late stage and the personal circumstances, although warranting sympathetic appreciation, cannot legally carry much weight. The very commendable steps taken by the appellant to rehabilitate herself after breaking away from the abusive relationship she was in deserve recognition and in our view obtained it in the result.

Result

[16] This was a stern sentence but not one which we consider can properly be reviewed for manifest excess. The appeal is accordingly dismissed.

Solicitors:

Crown Solicitors, Auckland