TE HAU v R [2004] NZCA 139 (8 July 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA97/04THE QUEEN

v

VERNON NGARANGI TE HAU

Hearing: 30 June 2004

Coram: O'Regan J Goddard J Chisholm J

Appearances: A J Snell for Appellant
D J Boldt for Crown

Judgment: 8 July 2004

JUDGMENT OF THE COURT DELIVERED BY CHISHOLM J

[1] Following trial the appellant was found guilty by a District Court jury on one charge of supplying methamphetamine, a charge of possession of methamphetamine for supply and a charge of possession of cannabis for sale. He was sentenced to three years imprisonment on those charges. On the first morning of the trial he had pleaded guilty to permitting premises to be used for the consumption of methamphetamine and to possession of a pipe to be used for consuming methamphetamine. Each of those charges attracted concurrent sentences of three months imprisonment. Two charges of fraud and a charge of breaching bail had also been admitted by the appellant. The fraud charges attracted a cumulative sentence of six months imprisonment and the breach of bail charge a further cumulative sentence of six months imprisonment. In total the appellant was sentenced to four years imprisonment.
[2] The appellant appeals his sentences on the grounds that, with the exception of the six month sentence on the fraud charges, the sentences are manifestly excessive and the overall sentence offends the totality principle. Because breach of bail is a summary offence this Court does not have jurisdiction to hear an appeal against that sentence: R v Ru (2001) 19 CRNZ 447 at p452. Thus to the extent that it has been necessary for us to consider the bail sentence we have reconstituted ourselves as a full Bench of the High Court.

Background

[3] On 20 February 2003 the police executed a search warrant issued under the Misuse of Drugs Act 1975 at the accused’s home. In the appellant’s wallet they located four “point” bags containing methamphetamine having a street value of approximately $440. Another point bag which had recently contained methamphetamine was also found in his wallet. A further point bag which had recently contained methamphetamine was found in a sunglass case which also contained a glass smoking pipe commonly used to smoke methamphetamine.
[4] Seven cannabis “tinnies” weighing five grams and having a street value of approximately $140 were located in a sunglass case. A used roll of tin foil and three pre-cut pieces of foil were located in the kitchen. Tin foil cut in this way is commonly used to package cannabis for sale. Two sets of weighing scales, which are commonly used by dealers to weigh methamphetamine and cannabis, were also located as well as cash amounting to $600.
[5] In his statement to the police the appellant stated that the previous night about 20 people had been at his home for a party and he had shared some of the methamphetamine with them. He claimed that the $600 located in his wallet was for rent and denied that the cannabis belonged to him.
[6] On 24 June 2003 the appellant purchased various items from a store on hire purchase to a total value of $6,741.16. False information was provided. Apart from an initial deposit of $430 no payments were made. The items were not recovered. These events gave rise to the first fraud charge and the second charge arose from the following events a few days later. On 4 July 2003 he borrowed $15,000 from a finance company so that he could purchase a motor vehicle. Again false information was provided. Later the vehicle was repossessed and sold.
[7] After he was found guilty by the jury on the three misuse of drugs charges the appellant was remanded in custody for sentence. However, on 3 October 2003 he was granted bail on compassionate grounds but failed to attend Court as required on 24 October. We understand that after breaching bail he remained at large for around four weeks until he was arrested.
[8] The appellant is a single person, 28 years of age. Since 1989 he has accumulated a number of previous convictions, including four convictions for dishonesty. His previous record does not include any convictions under the Misuse of Drugs Act. The probation officer reported that the appellant presented as a person with a medium to low risk of drug related re-offending who had a high motivation to make changes. It was also reported by the probation officer that the appellant remained steadfast that he was not selling methamphetamine or cannabis.

Sentencing

[9] Having outlined the facts the Judge commented that the jury had appropriately rejected the explanation that the cash amounting to $600 found in his wallet was for rent money. The Judge’s view was that it had arisen directly from the sale of methamphetamine and possibly cannabis and that a very clear message needed to be sent to anyone involved with methamphetamine. A number of aggravating factors were identified by the Judge: dealing in both methamphetamine and cannabis; the offending took place at his home; it involved a commercial element; the methamphetamine was in pure form; and there was evidence of “an ongoing cannabis tinnie operation”.
[10] Although the Judge took the view that the appellant could expect very little credit for the pleas on the morning of the trial, he obviously allowed a full credit for the guilty pleas on the fraud charges. He was not impressed by the suggestion that the appellant presented as a person with a medium to low risk of drug related re-offending and a person with high motivation to make changes. It was the Judge’s view that his record of dishonesty, refusal to accept the jury’s verdict and attitude towards an indulgence granted when he applied for bail on compassionate grounds, counted against any such conclusion.
[11] It was then noted by the Judge that although R v Wallace and Christie [1999] 3 NZLR 159 indicated a starting point of up to five years for smaller commercial drug operations, the Crown had conceded that such a starting point would be too high in this case. After referring to R v Dunsmuir CA439/02, 23 July 2003, R v Peters CA12/03, 14 May 2003, R v Gooch HC ROT CRN 2003 059 1437, 4 December 2003 the Judge observed that each case depended entirely on its own facts and that it was difficult to establish any accurate sentence by reference to current decisions.
[12] The Judge concluded:

[20] ... you were running a typical tinnie house with both cannabis and pure methamphetamine on offer. The end result is that what you did on that night was potentially supply up to 20 people with this drug methamphetamine which is highly addictive as well as highly pernicious.

[21] I am supported in my conclusion that you certainly were heavily involved in the supply on that night and indeed the jury correctly reached that verdict by virtue of the fact that there were two empty point bags clearly which had been used and you had $600 in your wallet which, on current street values, could have accounted for approximately six point bags being used.

It was then observed by the Judge that the appellant’s offending “was not insignificant at all” and that in relation to the cannabis operation “there is room to conclude that your involvement was an ongoing one”.

The appeal

[13] Mr Snell suggested that on the evidence the appellant’s offending against the Misuse of Drugs Act could only be described as a “bottom end operation with a degree of commerciality and personal use” and that the appellant should have been sentenced on that basis. He emphasised that at the time of the sentencing methamphetamine was still a Class B controlled drug. Seven decisions of this Court (R v Washer CA60/96, 11 July 1996; R v McLean CA283/98, 3 December 1998; R v Dunsmuir CA439/02, 23 July 2003; R v Blaikie CA267/01, 25 October 2001; R v Neary CA217/01, 29 November 2001; R v Griffiths CA421/03, 23 March 2004 and R v Mullins CA513/99, 24 May 2000) were cited by Mr Snell to support his argument that the sentence of three years imprisonment for the drug offending was manifestly excessive.
[14] With reference to the cumulative sentence of six months imprisonment for breach of bail, Mr Snell asked the Court to keep in mind that the maximum sentence is only one year’s imprisonment. Macdonald v Police HC PMN AP60/02, 24 February 2004, Stills v New Zealand Police HC AK A3/01, 20 February 2001 and Lange v Police HC AK 18 June 1992 were cited to illustrate that the appropriate sentence in this case would have been around three months imprisonment. Mr Snell said that he had not located any decisions where a sentence of six months imprisonment had been imposed.
[15] Finally, Mr Snell challenged the overall sentence of four years imprisonment on the basis that it offended the totality principle. He suggested that when the overall sentence of four years imprisonment is measured against the totality of the offending in this case it becomes clear that the overall sentence was excessive.

Crown’s response

[16] Mr Boldt suggested that the jury’s verdicts illustrate that the appellant had not simply supplied controlled drugs during the course of one night but intended to do so in the future. He said that in light of the Judge’s finding that the appellant’s operation was a “typical tinnie house with both cannabis and pure methamphetamine on offer”, the sentence of three years could not be described as excessive and would have been within the available range for the operator of a cannabis tinnie house. In the present case, he submitted, the relatively modest quantities located were less important than the Judge’s conclusion that the appellant was running a retail operation. Mr Boldt rejected any suggestion that the cases cited by Mr Snell indicated that this sentence was out of line and referred to R v Fitzpatrick CA154/03, 29 September 2003 to support his submission.
[17] As to the breach of bail Mr Boldt noted that bail is rarely granted between conviction and sentence where imprisonment is a likely outcome. He claimed that the appellant had abused the Court’s indulgence and that under those circumstances the Judge was entitled to treat the breach of bail as serious and to impose a sentence of six months imprisonment. Mr Boldt responsibly acknowledged, however, that he had not been able to locate any decision where a similar sentence had been imposed.
[18] Counsel submitted that the six month sentence for the frauds was “generous” and that in all the circumstances a sentence of 12 months imprisonment would have been unimpeachable. We were invited by Mr Boldt to take this factor into account when considering whether the overall sentence of four years imprisonment offended the totality principle on the basis that if necessary this Court could reconfigure the individual sentences making up the overall sentence. He cited R v Peters to support the proposition that it is the overall sentence rather than the precise components that is important.

Discussion

[19] As this Court said in R v Wallace and Christie (at p166) offenders are to be sentenced only for proved offending. One of the key issues arising from Mr Snell’s submissions is the level of the drug offending in respect of which the appellant was to be sentenced. Although we do not have the trial transcript, we can safely conclude from the charges and the undisputed facts that the proved offending in this case involved approximately one gram of methamphetamine and five grams of cannabis with an all up street value of no more than $1,000. Moreover, the offending centres around 20 February 2003. On the R v Wallace and Christie categorisation this offending is clearly within the third category where a starting point of up to five years is appropriate. However, as stated in that decision (para [32]), this is a broad category which enables sentences to reflect the many varied circumstances that can arise.
[20] Given the conflicting submissions of counsel about the applicability of the various decisions of this Court cited during argument, we have undertaken our own review. We commence with R v Washer which involved an appeal against a sentence of two years imprisonment for supplying methamphetamine and conspiring to supply methamphetamine. The appellant had been found guilty by a jury on both charges. He was classed by the sentencing Judge as a “professional trader in drugs on an ongoing basis” and had two previous convictions for drug offending, although neither involved supplying drugs. This Court concluded that the two year sentence was within the range available to the Judge and the appeal was dismissed.
[21] R v McLean involved an appeal against a sentence of 21 months imprisonment for supplying seven grams of methamphetamine. Originally McLean faced two charges but he pleaded guilty to one charge immediately prior to the commencement of the trial and the Crown offered no evidence on the other charge. This Court decided that there was a disparity in the credit allowed for the appellant’s guilty plea (three months) compared with the credit allowed to a co-offender and this led to the Court making a minor adjustment to the appellant’s sentence which was reduced to 19 months.
[22] When sentencing the appellant the Judge specifically referred to the next decision, R v Dunsmuir (although he seems to have been under the mistaken impression that a sentence of two years was upheld by this Court). Having been found guilty at trial Dunsmuir was sentenced to three and a half years imprisonment for supplying four points of pure methamphetamine in respect of which an undercover officer had paid $360. This offence occurred soon after the appellant was released from prison after serving a sentence for offending against the Misuse of Drugs Act. His criminal history included prior convictions for drug dealing and he also had gang associations. This Court considered that the sentence of three and a half years imprisonment was excessive and reduced the sentence to two years imprisonment.
[23] R v Blaikie involved an appeal against a sentence of two years ten months imprisonment on one count of possession of methamphetamine for supply in respect of which the appellant had been found guilty by a jury. Blaikie was found in possession of 56.2 grams having a value of between $4,000 and $8,000. Although he had prior convictions, his only conviction for a drug related offence was in respect of possession of cannabis. The appeal was dismissed.
[24] In R v Neary this Court dismissed an appeal against a sentence of 21 months imprisonment on one count of possession of cannabis for supply and one count of possession of methamphetamine for supply. The appellant had been found guilty on the cannabis charge and had pleaded guilty late in the trial to the methamphetamine charge. A total of 24 grams of cannabis having a street value of $670 and seven grams of methamphetamine cannabis having a value of around $1,000 was involved. Neary had a previous conviction for cultivating cannabis. When the methamphetamine offending occurred he was on bail awaiting trial on the cannabis charge.
[25] We do not need to consider the final two decisions cited by Mr Snell, R v Griffiths and R v Mullins, because the first decision was confined to the refusal to grant home detention and the second did not involve any appeal against sentence. However, we note that in both those cases the sentences for possession of methamphetamine for supply were under two years.
[26] Mr Boldt cited R v Fitzpatrick. Having been found guilty by a jury of possessing methamphetamine for supply Fitzpatrick was sentenced to four years imprisonment. Twelve grams of the drug were located in his house as well as a package of 70 resealable plastic bags commonly used for storing and distributing methamphetamine, a set of electronic scales and the sum of $2,800 in cash. The trial Judge considered that the appellant was somewhere in the middle of the distribution chain. Although the appeal was dismissed, this Court observed that the sentence was “stern and arguably towards the top of the available range”.
[27] The Judge also mentioned R v Peters which involved an unsuccessful appeal to this Court on the papers against a sentence of three and a half years imprisonment. The appellant pleaded guilty on the morning of trial to four counts of supplying methamphetamine and one count of offering to supply that drug. The total value of the drug sold to an undercover officer was $6,900. It appears that Ms Peters was part of an organised methamphetamine supply operation. While the Court considered that the sentence was “stern” it did not consider it to be manifestly excessive.
[28] When the circumstances and sentence under consideration are measured against circumstances and sentences relating to those cases we are satisfied that the sentence of three years imprisonment imposed on the appellant was manifestly excessive. We agree with Mr Snell that once the quantity involved, the duration of the offending and the absence of any previous drug convictions are taken into account, a sentence of around two years is indicated. It seems to us that the Judge fell into error when he approached the sentencing on the basis that this was an ongoing methamphetamine and cannabis tinnie house operation. Mr Boldt was not able to point to anything capable of substantiating that interpretation. The sentencing Judge was obliged to confine the sentencing to proved offending and was not entitled to increase the sentence to reflect what it was thought the appellant would be likely to do in future unless a need to protect the community was shown: R v Dunsmuir at para [20]. This was not such a case.
[29] We are also of the view that the sentence for breach of bail was too high. Even allowing for the appellant’s blatant abuse of an indulgence granted by the Court, we are unable to accept that a cumulative sentence of six months imprisonment was justified. We note that in R v Stills the sentence of imprisonment for breach of bail was only three months despite the fact that the appellant had offended again while at large after breaching bail. In our view a cumulative sentence of three months imprisonment would have been appropriate.
[30] We decline to accept Mr Boldt’s invitation to revisit the fraud sentence. The Crown has not appealed against that sentence and we do not accept that R v Peters is authority for the proposition advanced by Mr Boldt. In Peters the Court observed that 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. Whether or not the sentences in this case could be reconfigured to arrive at the same total sentence involves completely different considerations.
[31] Having weighed all factors and having regard to the totality principle, we conclude that the appropriate total sentence for the appellant’s offending is one of three years imprisonment, to be computed as follows: two years and three months for the lead drug offences; three months cumulative for breach of bail; and six months cumulative for the frauds. We should add, however, that the sentence relating to the lead drug offences reflects that at the time of the offending methamphetamine was a Class B controlled drug. That sentence can have no bearing on sentencing levels for offending since that drug was reclassified as a Class A controlled drug.

Result

[32] The sentence of three years imprisonment in relation to the lead offences under the Misuse of Drugs Act is quashed and replaced with a sentence of two years and three months. We also quash the sentence of six months imprisonment for breach of bail and substitute a sentence of three months imprisonment. In all other respects the sentences imposed by the Judge stand.

Solicitors:
Crown Law Office, Wellington