BREITMEYER v R [2004] NZCA 135 (6 July 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/04THE QUEEN

v

TANIA BREITMEYER

Hearing: 29 June 2004

Coram: O'Regan J Goddard J Chisholm J

Appearances: D C Ruth for Appellant
D J Boldt for Crown

Judgment: 6 July 2004

JUDGMENT OF THE COURT DELIVERED BY CHISHOLM J

[1] At trial the appellant was found guilty by a District Court jury on two counts of possession of cannabis for supply, five counts of selling cannabis (one of which was representative) and a representative charge of supplying cannabis. She was sentenced to three and a half years imprisonment and now appeals against that sentence. Her appeal against conviction was abandoned.

Background

[2] A police operation targeting the sale and supply of drugs through residential premises identified several properties including the property at 11A Carnarvon Street, Christchurch. The Carnarvon Street property was occupied by the appellant and her partner, Rodney Phillips. Police observations revealed a large number of short term visitors to that property over a period of approximately two months from 28 May 2002 to 24 July 2002. During that period an undercover police officer made a number of evidential purchases of cannabis from Carnarvon Street. When search warrants were executed by the police the appellant was also linked by fingerprints to cannabis foils found at 31 Aldwins Road, Christchurch.
[3] Eight charges were laid against the appellant. One charge of possession for supply related to 11A Carnarvon Street and the other to the cannabis foils found at Aldwins Road. The remaining charges related to various sales made to the undercover officer. At trial the appellant defended the charges on the basis that although she was aware that cannabis was being sold from her home, her role was purely passive and she was not involved. She did not give evidence. The jury found her guilty on all charges.
[4] The appellant is 29 years of age and has four children aged between 5 and 13 years. In 1998 she was sentenced in the High Court to two years imprisonment on one charge of selling cannabis and one charge of possession of cannabis for supply, having pleaded guilty to both charges. She unsuccessfully appealed to this Court against that sentence. Notwithstanding the jury’s verdict, it is recorded in the probation officer’s report that she still denied participating in the cannabis operation.

Sentencing

[5] The Judge approached the matter on the basis that from 28 May to 24 July 2002 11A Carnarvon Street was operating as “a full-blown tinnie house” with Mr Phillips as the principal organiser. Despite her secondary role the Judge was satisfied that the appellant was fully involved in the operation. He inferred from the comments of the Court of Appeal that the sentence of two years imposed in 1998 was lenient. A sentence of three years nine months imposed on the appellant’s co-offender, Mr Phillips, was then considered by the Judge. He noted that twice previously Mr Phillips had been convicted for drug dealing and that the sentencing Judge had adopted a starting point of five years imprisonment. It was also observed by the Judge that the appellant’s personal circumstances could carry little weight.
[6] Mr Ruth’s concession that the appellant’s offending fell within the second category identified in R v Terewi [1999] 3 NZLR 62, which indicated a starting point within the range of two - four years, was noted by the Judge. He rejected the Crown’s submission that the starting point should be at or beyond the upper end of that range. In the end result the Judge imposed concurrent sentences of three and a half years imprisonment on each charge.

The appeal

[7] Mr Ruth based the appeal on the appellant’s low key role in the offending, the fact that by comparison with her co-offender she had a short list of previous convictions, and her personal circumstances. He submitted that the Judge had failed to give adequate weight to these factors. Mr Ruth also drew our attention to the sentences imposed on several other offenders as a result of the same police operation. In all the circumstances, submitted Mr Ruth, the sentence imposed on the appellant was manifestly excessive.

Discussion

[8] Having heard the evidence at trial, and given the jury’s verdicts, it was plainly open to the Judge to sentence on the basis that the appellant was involved in a full-scale “tinnie” operation at 11A Carnarvon Street and that she was also linked to the cannabis found at 31 Aldwins Road. Although the Judge acknowledged that the appellant fulfilled a secondary role, he clearly viewed her as a willing participant and as a person who was fully involved in the offending, at least as a party. Again he was entitled to take that view.
[9] It is hardly surprising that at sentencing Mr Ruth conceded that the appellant’s offending fell within category 2 of R v Terewi which would suggest a starting point within the range of two to four years. Clearly this offending involved an underlying commercial purpose extending over a period of around two months. The Judge was entitled to regard deterrence as a primary sentencing consideration and, of course, the appellant was not entitled to any credit for a guilty plea.
[10] A serious aggravating feature was that the appellant had been sentenced to two years imprisonment in 1998 for similar offending. We agree with Mr Boldt that given that sentence and the appellant’s re-offending within a relatively short time, the Judge had no option other than to impose a significantly higher sentence on this occasion.
[11] When arriving at his sentence the Judge carefully considered all relevant factors including the sentence imposed on the appellant’s co-offender. Although Mr Ruth did not attempt to argue disparity, we should record that in our view the sentence imposed on the appellant is entirely compatible with the sentences imposed on Mr Phillips and with the sentences imposed on the other persons brought to justice as a result of the police operation. The Judge rightly declined to give any significant weight to the appellant’s personal circumstances. Taking all factors into account a sentence of three and a half years imprisonment was within the range available to the Judge.

Result

[12] It has not been established that the sentence imposed on the appellant was manifestly excessive. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington