COX v R [2005] NZCA 115 (23 May 2005)

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COX v R [2005] NZCA 115 (23 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA392/04
CA401/04
CA400/04

THE QUEEN



v



BRENDAN WILLIAM KAHUI
NIGEL CHARLES BEATON
DARRYL JOHN COX

Hearing: 17 May 2005

Court: Hammond, Potter and Doogue JJ

Counsel: M D Downs and M J Inwood for Crown
C P Comeskey for appellant Kahui
R J Stevens for appellant Beaton
P S Coles for appellant Cox

Judgment: 23 May 2005

JUDGMENT OF THE COURT

A In the case of Mr Kahui, the Solicitor-General is granted leave to appeal. The sentence of 51/2 years on the methamphetamine charges is set aside. We substitute a sentence of 71/2 years imprisonment. That sentence is affixed to the charge of offering to supply methamphetamine. All the concurrent sentences will remain, as fixed by the High Court.

B In the case of Mr Beaton, the appeal against sentence is dismissed.

C In the case of Mr Cox, the appeal against sentence is dismissed.

REASONS

(Given by Hammond J)

Table of Contents
	Para No
Introduction	[1]
Operation Monster	[4]
The Solicitor-General appeal: Mr Kahui
(i) Introduction	[7]
(ii) The sentencing in the High Court	[10]
(iii) The Crown submissions	[12]
(iv) Submissions for Mr Kahui	[20]
(v) Disposition	[22]
Sentence appeal: Mr Beaton	[26]
Sentence appeal: Mr Cox	[40]

Introduction

[1]	We have before us three appeals against sentence arising out of a police drug operation. As a result of this operation, Messrs Kahui, Cox and Beaton were all convicted of drug trafficking offences, involving methamphetamine and other controlled drugs.
[2]	Mr Kahui received a sentence of five and a half years imprisonment. The Solicitor-General seeks the leave of this Court to appeal that sentence, on the basis that it is wrong in principle and manifestly inadequate.
[3]	Messrs Cox and Beaton received sentences of imprisonment of three and a half years and five years respectively. They appeal against those sentences on the basis that they are manifestly excessive.

Operation Monster

[4]	In late 2002, the Organised Crime Unit of the Wellington Police conducted an operation designed to detect dealings in all classes of drugs, called Operation Monster. This operation involved the covert recording of conversations on mobile phones and the obtaining of text message traffic therefrom, pursuant to appropriate warrants.
[5]	The Crown case was that Messrs Kahui, Cox and Beaton had used these mobile phones to facilitate the drug transactions. Coded language was used to refer to controlled drugs, the quantities for sale, and the price.
[6]	A collective challenge was made to the admissibility of the electronic evidence, which resulted in certain questions reaching this Court prior to trial. That evidential challenge was dismissed: R v Cox (2004) 21 CRNZ 1. The three men subsequently entered guilty pleas.

The Solicitor-General appeal: Mr Kahui

(i) Introduction

[7]	Mr Kahui pleaded guilty on the sixth day of his trial, which was very shortly before the close of the Crown case, to charges in an amended indictment. He acknowledged dealing in LSD, methamphetamine and cannabis. Gendall J described the prospect of his conviction as "almost inevitable".
[8]	Mr Kahui’s offending was conveniently summarised by the Crown in this way:

(a) Class A: offering to supply LSD: Over a 13 day period beginning 1 November 2002, Kahui made three offers to supply LSD. One offer involved LSD to the value of approximately $3,500.

(b) Class B: offering to supply methamphetamine: Between 12 October and 19 December 2002 Kahui made at least 59 offers to supply methamphetamine to a variety of prospective purchasers. The sentencing Judge found Kahui made offers to at least 37 different customers and that he had at least 12 regular customers. Kahui offered to supply methamphetamine in substantial quantities. At trial the Crown estimated he offered to deal in excess of $130,000 worth of the drug. In one conversation intercepted by the Police, Kahui offered "two pounds of ice for $100,000". His counsel contended this was mere puffery.

(c) Class B: attempted manufacture of methamphetamine: As well as dealing in methamphetamine, Kahui also attempted to make the drug. The quantity involved is not known, though the relevant intercepted conversation suggests the respondent was impressed by the quantity and quality of the final product.

(d) Class C: possession of cannabis for sale: On 8 May 2003 the Police went to the respondent’s house. There they found approximately five grams of cannabis by Kahui’s bed, three ounces of cannabis in a hallway cupboard and eight ounces of cannabis concealed in the bumper of Kahui’s car. The cannabis is estimated to be worth between $2,000 and $2,800. Though unemployed, Kahui was also found to be in possession of some $650 in cash.

[9]

The original indictment had contained 64 counts relating to each offer or transaction intercepted in Operation Monster. The amended indictment on which Mr Kahui pleaded guilty contained four counts. These charges were representative in nature and understood by all to be so. This refinement was as the result of eminently sensible steps taken by the very experienced trial Judge to reduce the indictment and the trial to a manageable level.

(ii) The sentencing in the High Court

[10]

The High Court Judge sentenced Mr Kahui to an effective term of five and a half years imprisonment. What appears to have weighed principally with the Judge was that Mr Kahui was dealing in a number of drugs in a substantial way over a significant period and he made significant sums of money from these transactions. The proposition that Mr Kahui was merely acting as an agent for friends was rejected.

[11]

The Judge reached the effective sentence he imposed by adopting a six-year starting point for the methamphetamine offending. He reduced this by six months, to extend some recognition for the late pleas of guilty. The offending in relation to the LSD and the cannabis was made the subject of concurrent terms of imprisonment of three years (LSD) and eighteen months (the cannabis offences).

(iii) The Crown submissions

[12]	The Solicitor-General submits that the sentence of five and a half years is manifestly inadequate, and wrong in principle, because the sentence fails to reflect the totality of Mr Kahui’s drug dealing activities, including his commercial dealings in LSD and cannabis.
[13]	Mr Downs submitted that an appropriate starting point for the methamphetamine offending alone, would have been in the region of six to seven years imprisonment. It is argued that the Judge erred by not then increasing the starting point of the lead sentence, or imposing a cumulative term to take into account the LSD offending, given the seriousness and commercial features of that offending. Although there were only three occasions of LSD dealing it is said this was motivated by financial gain. Having regard to the decision of this Court in R v Stanaway [1997] 3 NZLR 129, it is submitted that four years imprisonment could have been adopted for that offending (in isolation). The Crown submits that this "side by side" offending added to Mr Kahui’s culpability and should have been reflected by an increase in his sentence.
[14]	A similar argument is made with respect to the cannabis dealing. That was treated by the Judge as being within category 2 of Terewi [1999] 3 NZLR 62 (CA). The submission is that the Judge again erred by not increasing the starting point of the lead sentence, or by failing to impose a cumulative term to reflect the seriousness of Mr Kahui’s discrete cannabis offending.
[15]	The Crown contrasted the sentencing approach of Gendall J with the sentencing approach of MacKenzie J in Messrs Cox and Beaton’s cases. There the sentencing Judge expressly considered whether the sentences should be cumulative or concurrent, ruling that the better approach was to increase the lead sentence to reflect the totality of the offending.
[16]	The Crown accepted that it is the effective sentence that is important, and not how it is achieved. But it is contended that in this case, Gendall J did not increase the sentence to take into account Mr Kahui’s additional and discrete dealing in Class A and Class C controlled drugs. In the result, the Crown submits that the sentence was lenient vis-à-vis the methamphetamine offending, but manifestly inadequate in relation to the totality of Mr Kahui’s offending.
[17]	The Crown submitted there are no truly mitigating features, no realistic prospects of rehabilitation, and that Mr Kahui already has a lengthy list of previous convictions (including four convictions for offending contrary to the Misuse of Drugs Act 1975).
[18]	The Crown also took issue with the six month reduction for what it described as Mr Kahui’s "belated" pleas of guilty.
[19]	In the result, the Solicitor-General submitted that the resulting sentence was wrong in principle and manifestly inadequate in that it did not reflect the seriousness, nature and length of Mr Kahui’s drug dealing operation across all categories of controlled drugs, and that a term of at least seven and a half years imprisonment should have been imposed.

(iv) Submissions for Mr Kahui

[20]

Mr Comeskey stressed that the trial Judge was thoroughly familiar with the case and was able to gain a distinct view from the evidence and his observations of the accused as to the seriousness of the offending, "but more particularly as to the sophistication or otherwise of [Mr Kahui]". He submitted that the Judge had taken the view that Mr Kahui was a simple man, involved in the offending principally to fuel his own addiction, and that his commercial success had been limited.

[21]

Mr Comeskey submitted that the term settled upon of five and a half years was not manifestly inadequate. He agreed it was "light", but he said it was within the available range and it ought not therefore to be interfered with by this Court.

(v) Disposition

[22]	We think this appeal should be allowed, and essentially for the reasons advanced by the Crown.
[23]	The Judge was perfectly entitled to adopt the methodology of a lead sentence, and concurrent sentences on the other charges. That is a usual course, and has the advantage of ensuring that the totality of the sentence is the paramount concern. A disadvantage - as we think occurred here - is that the seriousness of the "side-by-side" offending may not receive sufficient weight, or even be overlooked. In this case the Judge properly acknowledged that the lead sentence should be increased because of the other serious related offending but for some reason that is not clear did not give effect to that acknowledgement.
[24]	Bearing in mind the usual principle which obtains with respect to Solicitor-General appeals, we think that the head sentence - on a totality basis - should here have been at least eight years imprisonment. We agree that insufficient recognition was given to the side-by-side offences, and particularly the Class A offence. We are not disposed to interfere with the discount given by the Judge of six months for the belated guilty pleas, though it could be considered generous.
[25]	In the result, we give leave for the Solicitor-General’s appeal, the appeal will be allowed, we set aside the sentence of five and a half years imprisonment, and we substitute an effective sentence of seven and a half years imprisonment, such sentence to be attached to the methamphetamine offences. The concurrent sentences on the LSD and cannabis charges will remain in place.

Sentence appeal: Mr Beaton

[26]	At the commencement of his trial in the High Court Mr Beaton pleaded guilty to charges of (a) conspiring with Mr Cox between certain dates in late 2002 to supply methamphetamine; and (b) offering to supply methamphetamine in the last quarter of 2002.
[27]	MacKenzie J imposed an effective sentence of five years imprisonment. That sentence was reached by taking a starting point of five and a half years on the most serious charge, that of offering to supply methamphetamine, with a six month discount for Mr Beaton’s guilty plea.
[28]	The sentencing Judge noted that the conduct giving rise to this charge had extended over some three and a half months. During that time Mr Beaton had repeatedly offered to sell methamphetamine to a variety of prospective purchasers. He acknowledged being involved in some 29 transactions; selling methamphetamine in "point" and "gram" quantities. The drugs in question were worth about $13,700. The Judge did not make a clear finding whether Mr Beaton was a full-time drug dealer or simply a middle man in the transactions, but he was quite satisfied that Mr Beaton was actively involved in the distribution of methamphetamine over a significant period of time. Consequently the Judge found that Mr Beaton was within category 2 of R v Wallace [1999] 3 NZLR 159.
[29]	Mr Beaton’s appeal is put under four heads: Mr Stevens said the Judge had inappropriately treated the case as being within category 2 of Wallace (above); there was a failure to have regard to Mr Beaton’s personal circumstances; there was insufficient discount for the guilty plea; and there was an inappropriate disparity with the sentence imposed on Mr Kahui.
[30]	The first ground is essentially factual, and involved a submission that Mr Beaton should be seen as a "street dealer ... at the end of the chain".
[31]	Turning to Mr Beaton’s personal circumstances, Mr Stevens rightly recognised that they "could not be given great weight". But he contended they were not irrelevant and should not be put to one side. Mr Beaton was formerly a seaman. His wife had suffered from a distressing mental health condition, and for a period of some years Mr Beaton acted as father, caregiver and sometimes nurse, and as Mr Stevens described it, simply "bottled up" any stress or angst he felt. He resorted to drugs as a means of coping with his distress and he became addicted. Fortunately, it is said, he has overcome this addiction.
[32]	As to the guilty plea, it is acknowledged that it was entered late. But Mr Stevens contended that Mr Beaton should still have received "considerable credit" for that plea, and certainly more credit than he in fact received.
[33]	As to disparity, the argument for Mr Beaton, who was sentenced on the same day as Mr Kahui, is that Mr Kahui’s offending (to which we have already referred) "was far worse than" that of Mr Beaton in that there were double the number of offers to supply, and the amount of money involved was ten times that involved in Mr Beaton’s case. Further, it is said that Mr Kahui was not simply a "street dealer" but a "wholesaler and retailer". Notwithstanding the extremely belated guilty plea of Mr Kahui, he received the same credit for his guilty plea.
[34]	The Crown submitted that the allocation of the case, in the particular circumstances, to category 2 of Wallace was supportable; that it cannot be said that the Judge entirely failed to have regard to Mr Beaton’s personal circumstances; that the allowance for the guilty plea cannot appropriately be impugned; and that the disparity point falls distinctly away, in light of the Kahui appeal.
[35]	This offending extended over more than three months, and Mr Beaton was involved in 29 admitted transactions, with drugs of a value of $13,700. The trial Judge was satisfied that Mr Beaton was actively involved in the distribution chain, for profit. In our view the allocation of the case to category 2 of Wallace, albeit at the lower end of the range, is unassailable.
[36]	As to Mr Beaton’s personal circumstances, they were noted by the Judge, and that Mr Beaton is seen as being at moderate risk of re-offending.
[37]	The fixing of a discount is for the discretion of the trial Judge, and the discount will be interfered with only in the plainest of cases. This was a late plea; the defence case crumbled only after the ruling of this Court, when Mr Beaton accepted the inevitable.
[38]	The disparity argument has lost any real force as a result of the outcome of Mr Kahui’s appeal.
[39]	This appeal is dismissed.

Sentence appeal: Mr Cox

[40]	Mr Cox pleaded guilty to conspiring with Mr Beaton in the last quarter of 2002 to supply methamphetamine, and possession of cannabis for sale on 29 April 2003.
[41]	The conspiracy, which was the subject of the methamphetamine charge was detected by police intercepting telephone conversations and text messages between Messrs Cox and Beaton. MacKenzie J found that Mr Cox’s role was much more than "merely peripheral" and that he was "a significant player". Mr Cox was sentenced to two years (concurrent) on that charge. There is no appeal against that sentence.
[42]	The cannabis charge concerned significant quantities of cannabis found by the police on the execution of a search warrant at business premises leased by Mr Cox. The police found a total weight of cannabis of some 1.844 kilograms, with an estimated worth of $10,250 to $16,350. The sentencing Judge approached his task on the footing that the value was at, or perhaps towards, the lower end of that range, but nevertheless the amount was still "substantial".
[43]	Mr Coles submits that the lead sentence of three and a half years for possession of cannabis was manifestly excessive; that insufficient weight was given to Mr Cox’s guilty plea; and that the sentence was disproportionately high given the sentences imposed on other like offenders.
[44]	The Crown submitted that Mr Cox’s guilty plea was on very much the same footing as the other offenders; that the cannabis sentence was squarely within category 2 of Terewi [1999] 3 NZLR 62 and that the Judge’s starting point of three to four years to reflect the conspiracy charge and the totality of the offending was well within the appropriate range.
[45]	As in the cases of Messrs Kahui and Cox, we are not disposed to interfere in the discount actually given, which was within the sound judgment of the trial Judge.
[46]	The central point of the appeal was the Judge’s starting point on the cannabis charges. As to that, the Judge was entitled to have regard to the quantity of the cannabis; its presumptive value; and the commercial feature of the finding of a large number of resealable plastic bags, which could be used for on-sale. There is no proper basis on which this Court can interfere with relevant findings of that kind.
[47]	The Judge was entitled - indeed bound - to have regard to the totality of the offending, in coming to an effective sentence.
[48]	There was no error of principle by the Judge, nor can it be said the sentence was manifestly excessive.
[49]	The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington
Fanselows, Wellington for appellant Beaton
Peter S Cole, Palmerston North for appellant Cox