R v Whittaker CA146/05 [2005] NZCA 366 (19 September 2005)

Last Updated: 20 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA146/05

THE QUEEN

v

IRENE ROSETTA WHITTAKER

Court: Glazebrook, W Young and Robertson JJ Counsel: R G Glover for Appellant

A J Mills for Crown

Judgment: 19 September 2005 at 10am

(on the papers)

_{JUDGMENT OF THE COURT}

The appeal against the sentence of four years and three months on the charge of possession of a class A drug for the purposes of supply is allowed. That sentence is quashed and a sentence of three years and six months’

_{imprisonment is imposed. All other sentences are confirmed.}

REASONS

(Given by Robertson J)

[1] This appeal against sentence has been heard on the papers under the Crimes

(Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of

R V WHITTAKER CA CA146/05 19 September 2005

Appeal (Criminal Rules) 2001, have been considered by members of the Court who have conferred and agreed upon this judgment.

[2] Ms Whittaker appeared for sentence before John Hansen J in the High Court at Christchurch on 22 April 2005 on what he described as a “significant number of drug offences”:

(a) possession of a class A controlled drug, namely methamphetamine, for the purposes of supply;

(b) possession of a class B drug, namely morphine, for the purposes of supply;

(c) possession of a class C drug, namely cannabis, for the purposes of supply;

(d) possession of a precursor substance, pseudoephedrine and acetic anhydride;

(e) possession of utensils being a methamphetamine pipe and a cannabis pipe. (There are two counts which were transferred from the District Court.)

[3] The Judge described the background circumstances in this way:

[2] On 22 July 2004 the police searched your house. You were present and I accept co-operative. In a make-up bag in your room the police found

15 bags of methamphetamine; 12 bags containing a point each with the other

three bags containing between 0.3 and 0.5 of a gram. A further gram was found in the lounge in a small wooden cupboard. The total amount of methamphetamine found was about 3.3 grams, and the ESR states 1.3 grams of pure methamphetamine.

[3] There is a dispute to some extent as to the value. Mr Glover submitting that the Court should base it on the pure value as ascertained by the ESR; the Crown suggesting it should be based on the street value of the point bags. The reality is, however, whichever value is taken it does not change the category for sentencing purposes under a decision I will turn to shortly for the purposes of sentencing.

[4] A hand-held electronic scale and a notebook with a tick list was also found.

[5] Also in the make-up bag were six 30mg morphine sulphate tablets,

30mg morphine capsules and two 100mg capsules.

[6] On the bed was a plastic bag containing about 190 empty point bags and a roll of tinfoil.

[7] In the bedroom was 10.7 grams of cannabis wrapped in tinfoil A

cannabis “tinnie” is one to two grams of cannabis selling for about $20 each.

[8] Also in the bedroom was a dropper bottle of acetic anhydride, a substance used to turn morphine sulphate tablets into heroin.

[9] In the top drawer of a set of drawers was a bag containing four blister packs of Actifed. Actifed contains the precursor substance ephedrine used in the manufacture of methamphetamine.

[10] In your handbag was a cannabis pipe and a broken glass pipe commonly used to smoke methamphetamine. A homemade “bong” for smoking cannabis was also found.

[11] You admitted dealing in morphine and cannabis and stated although you used methamphetamine you did not deal in it. From the number of visitors to the address the police concluded the house was a busy “dealing” house. You now accept, through counsel by pleading guilty to the possession of methamphetamine for supply, the intention was commercial, although he submits there is no direct evidence of selling.

[4] It was submitted on behalf of the appellant that the total term of imprisonment imposed was manifestly excessive and wrong in principle.

[5] Three particular factors are raised by Ms Whittaker’s counsel on appeal. First, that the Judge was mistaken in adopting a starting point of five years. Hansen J said:

[29] It seems to me in this case, given the amount of methamphetamine, the aggravating features, in particular the fact that you were dealing with class B and C drugs at the same time, an appropriate starting point is one of five years imprisonment. When it comes to discount, I have already indicated that I would have looked at a discount of 20 months had you pleaded guilty earlier. You did not. I will, of course, make some limited discount because of the late guilty plea and as far as I am able to I will take into account your health situation and the other personal factors you have mentioned. In this particular case, however, I am limited, as I have said, for the reasons given. It seems to me an appropriate, and indeed generous, discount in the circumstances is one of nine months.

[6] First, it is argued that the Judge over-estimated the quantity of methamphetamine involved. The police described it as 3.3 grams and the ESR as 1.3 grams pure. Because there was offending with regard to other class B and C drugs at the same time, the Judge concluded a substantial penalty overall was called for.

[7] It has been common ground in the High Court and in this Court that the offending with regard to the methamphetamine came within the lowest of the categories identified by this Court in R v Arthur [2005] CRNZ 453 with a starting point between two and four years. While accepting that position in respect of the methamphetamine charge, the Crown nevertheless argued for a starting point of four to six years because Ms Whittaker was effectively operating a “drug shop” so that it was clearly commercial dealing.

[8] We are of the view that applying the test of this Court in Arthur in respect of the actual possession for supply of a class A controlled drug produces an initial consideration of a sentence in the vicinity of two and a half years. We accept that there is aggravation because of the timespan of offending and the existence of the other drug offending, but we are persuaded that a starting point in excess of four years was not within the available sentencing range. Four years would give full recognition to all aggravating factors and we proceed on that basis.

[9] Then there is the issue of mitigation which has two aspects.

[10] The Judge was at pains to make clear, because the plea of guilty had only occurred immediately before trial, that there was substantial detriment to Ms Whittaker. He said:

[28] The reality is, however, that such a late guilty plea has tied this Court’s hands in terms of any allowance that can be made. In drug cases, almost inevitably, because personal circumstances have limited impact, it is early guilty pleas that will attract the greatest discount. That is a message that does not seem to have got through to the criminal community in Christchurch or elsewhere. That, of course, is on their own heads.

[11] We endorse all that is said about early guilty pleas. The issue in this case is whether the allowance he made properly reflected all the factors which he identified should be taken into account, including the late plea of guilty.

[12] There is no doubt that the Court was dealing with a person who, as her counsel indicated, was “in the grips of a vicious methamphetamine addiction and resorted to it because of that fact to sell anything she could get her hands on in order to be in a position to order more methamphetamine for her own use”. None of that is an excuse, but it does demonstrate that this was not offending driven by greed or avarice, or a full commercial operation, but a manifestation of the serious criminal consequences of her drug problem.

[13] In addition, Mr Glover made much of the fact that existing policies within the Department of Corrections meant that Ms Whittaker would be withdrawn from a methadone programme which she had been on for six years. Counsel submitted this was a consequence of guidelines which were misconceived.

[14] The Crown’s response was:

[29] The policy regarding the methadone programme is set by the Department of Corrections and applies to all prisoners so there is nothing unique or special in the appellant’s circumstances in that regard. The prison authorities have the experience and necessary facilities to deal with prisoners who are being withdrawn from the methadone programme.

[30] While the methadone programme will cease, the appellant has only herself to blame as she has continued to offend while on the methadone programme which has resulted in this prison sentence. The appellant should not have a lesser sentence imposed because of this.

[15] This policy on methadone programmes exists. The reality in this case is that whether this appellant’s sentence is three or five years, the problems which Mr Glover addresses will be a consequence.

Conclusion

[16] Balancing all the competing factors, we are of the view that an allowance of six months’ imprisonment would properly reflect the matters identified by the sentencing Judge even against a starting point of four years. In percentage terms, it is around 12½% which gives some weight to the various components identified by the sentencing Judge in addition to a modest allowance for the late plea.

[17] The appeal against the sentence of four years and three months on the charge of possession of a class A drug for the purposes of supply is allowed. That sentence is quashed and a sentence of three years and six months’ imprisonment is imposed. All other sentences are confirmed.

Solicitors:

Crown Law Office, Wellington