FRANKLIN v R [2005] NZCA 47 (15 March 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA363/04

THE QUEEN



v



JOHN HENRY FRANKLIN

Hearing: 10 March 2005

Court: Anderson P, Heath and Doogue JJ

Counsel: G J Newell for Appellant
J M Jelas for Crown

Judgment: 15 March 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Doogue J)

Introduction

[1]	John Henry Franklin appeals against a sentence of two and a half years imprisonment imposed upon him by Williams J in the High Court at Auckland in August 2004 for the offence of supplying a Class A controlled drug, namely methamphetamine. Mr Franklin had pleaded guilty to the offence in the District Court and been remanded to the High Court for sentence.
[2]	The appeal is pursued upon the basis that the sentence imposed was manifestly excessive given the circumstances in which the offending occurred and the level of offending involved. The Crown supports the sentence under appeal.

Background

[3]	Mr Franklin was born on 1 June 1964. He has been a drug addict for 20 years or more in respect of one sort of drug or another. He is self-employed as a computer technician. No doubt as a result of his drug addiction he has numerous past offences, not only in respect of drugs but also in respect of offences of dishonesty and the possession of firearms. He has received a range of sentences for his offending. It is perhaps significant that the greatest sentence imposed upon him in respect of drug offending was six months supervision in 2001 for possession of a Class B drug. His only previous sentences of imprisonment were imposed in Australia in 1993 for offending involving a firearm.
[4]	Mr Franklin took no steps to address his drug addiction until the present offending came to the attention of the Court. His motivation to change is therefore assessed by the probation officer in the pre-sentence report as "low". A drug counsellor’s assessment is that he is dependent on methamphetamine with a psychological and physiological dependency.
[5]	The facts of the offending are straightforward. On 27 February 2004 Mr Franklin was at his home. At about 8.30 a.m. in the morning an associate arrived to commence some work on the interior of the house. The pre-sentence report stated that Mr Franklin said that his friend asked him if there was "any breakfast" meaning any methamphetamine. Mr Franklin replied that he told his friend that there was. He handed over a sachet and asked his friend to make him "a line" as well. Before either man could consume the drug the police arrived.
[6]	Mr Franklin pleaded guilty on a summary of facts that recorded that the methamphetamine for the friend was a bonus payment for the intended interior work on the house. The quantity involved was approximately 0.1 grams of pure methamphetamine. It was in a small plastic snaplock bag commonly known as a "point" bag of methamphetamine. It had an average street value of between $100 and $120.
[7]	A search of the appellant’s bedroom located 15 similar bags, each containing various quantities of methamphetamine, weighing in total approximately 1.7 grams, along with paraphernalia for using methamphetamine. Mr Franklin immediately acknowledged that he was a regular user of methamphetamine and that he had supplied his associate with the methamphetamine on this morning.
[8]	Mr Franklin was charged with both supplying methamphetamine and with its possession.
[9]	In sentencing Mr Franklin, Williams J accepted that the guilty pleas were entered at an early stage so that Mr Franklin was entitled to a discount off the sentence that would otherwise be imposed. The Judge regarded the casualness of the offending as significant. Mr Franklin described the supply as just like "having the first cigarette or the first cup of coffee for the day". The Judge noted:

The community, however, would regard that kind of behaviour with abhorrence, given the flood-tide of methamphetamine which is pervading our community and has done now for the last few years. And, despite the publicity that has been given to methamphetamine and particularly to the increase in the maximum sentence which is available, it is clear, as I said, that to you this was just an ordinary, everyday occurrence.

[10]	The Judge went on to record the background already traversed, noting in respect of 17 previous drug convictions that all of them had been met with fines except for the sentence of supervision already mentioned.
[11]	The Judge noted that the pre-sentence report referred to the fact that Mr Franklin was considered to be in the "high end" risk category of reoffending. He further noted, however, that to Mr Franklin’s credit he had involved himself over recent time in counselling and was living in a facility for that purpose. However, the Judge rightly regarded that as really too little too late as the appellant acknowledged that he was still using methamphetamine three weeks after the pleas of guilty and before sentence.
[12]	The Judge went on to traverse various cases, including in particular R v Wallace [1999] 3 NZLR 159.
[13]	The Judge took the view that Mr Franklin was in the third or lowest class described by this Court in Wallace as "small operations representing commercial dealing" and that thus a starting point of up to five years imprisonment was appropriate. The Judge went on to say:

It is true that there is no strict commercial quality in what you did. At the most it could be said that this chap came round to do some work for you and you gave him some methamphetamine as a bonus or as part-payment. It is not really "commercial" and I accept that you are towards the lower end of the scale when it comes to sentencing. But, as has now been acknowledged on a number of occasions, as a result of the reclassification of methamphetamine into Class A, the Wallace starting points are out of date.

[14]

Having acknowledged that the offending was towards the lower end of the scale as far as charges were concerned, the Judge commented that it was still serious and that the casualness and thoughtlessness with which the appellant embarked on major offending is a matter of concern. The Judge addressed the submissions for Mr Franklin. He accepted that the appellant was entitled to credit for the pleas of guilty entered at an early stage. Against that he said he had to weigh the previous convictions and the offending in which the appellant formerly engaged and the fact that in this case there was actual supply to another person.

[15]

The Judge concluded that the appropriate starting point for sentence was "about three and a half years or perhaps a little less." As a result, for the supply offence, having regard to the plea of guilty, he imposed the sentence of two and a half years imprisonment. On the possession charge a sentence of three months imprisonment was imposed with the term being concurrent. The Judge also addressed an issue of outstanding fines but was not in a position to deal with that matter.

Submissions for the appellant

[16]	The primary oral submission for the appellant was that the Judge’s starting point for sentence for a single small supply was too high and that the appellant has effectively been sentenced as if the 1.7g. in his possession was also for supply. This was not an ongoing business operation. In the written submissions the emphasis was on the social sharing of a drug without any financial gain rather than commercial supply. In that circumstance it was said the sentence imposed was not in keeping with other decisions in the High Court where lesser sentences have been imposed in relation to the social sharing of drugs.
[17]	It was submitted for the appellant that however the matter is approached the sentence imposed is manifestly excessive and that, given the early plea of guilty as here, an appropriate final sentence would have been of the order of 12-14 months imprisonment. This is on the basis that a starting point of around two years would have been more appropriate than the three and a half years or a little less adopted by Williams J.
[18]	In particular, the appellant relied upon sentencing by John Hansen J in the High Court at Christchurch R v Brooking CRI-2003-009-14630, 1 April 2004 and by Priestley J in the High Court at Auckland in R v Arthur CRI-2003-090-11066 11 August 2004. We simply note that in those decisions the Judges recognised a distinction between commercial supply and "social supply" and imposed lesser sentences than here. We deal with that issue later in this judgment. Because of our views on that issue it is not helpful to compare the facts of the particular cases.

Submissions for the Crown

[19]

The primary submission for the Crown was that the sentence of two and a half years imprisonment is not manifestly excessive. While the supply may not have been a true commercial transaction it was also not a supply solely for the purposes of socially sharing the drug as submitted by counsel for the appellant. The summary of facts records the supply was to be offset against the money the appellant was to owe his friend for the work that was to be done. The price of the "point" supplied was in effect part payment for future work to be done. In that sense the supply was of commercial benefit to the appellant. It was therefore submitted for the Crown that it was open to Williams J to impose a sentence that reflected both the social circumstances of the supply and the business benefits of the supply provided to the appellant.

[20]

It was accordingly submitted that when the Judge took a starting point at the lower end of what might have applied to a pure commercial purpose he was entitled to do so, particularly given the circumstances of the offending and the need for personal and general deterrence.

Discussion

[21]	The issue for us is whether the sentence imposed was manifestly excessive or one reasonably within the sentencing judge’s discretion.
[22]	When the sentence is viewed in context we have no doubt it was a sentence open to the sentencing judge and that it cannot be categorised as excessive, let alone manifestly excessive.
[23]	The evil that the law seeks to contain in a case such as the present is the supply of methamphetamine, because of its pernicious effects on the health and safety of the community. The seriousness of those effects has been recognised in the re-classification of the drug from Class B to Class A. Those effects result from all forms of supply and are not alleviated by the supply being in a social situation. Neither counsel could refer us to any case in this Court distinguishing between commercial and social forms of supply. What is important is the scale of the supply, namely, the quantity, quality and value involved and the frequency of transactions. It is the nature and scale of the offending that leads to the appropriate starting point for sentence. The re-classification of the drug from Class B to Class A has inevitably led to a proper increase to the tariffs identified in Wallace. In any event, there was a commercial element in this supply.
[24]	Here the supply required both a personal and general deterrent sentence denunciating the activity of the appellant. The appellant’s drug history, the facts of the case and his continuation with his habit following his plea all pointed to the need for personal deterrence. The culpability here was no less because money did not pass. With all respect to the submissions for the appellant we do not read the Judge’s sentencing remarks as ignoring the quantity and value of the drug being supplied. We certainly do not read them as sentencing the appellant as if the 1.7g. of the drug within his possession was for supply
[25]	Here the Judge rightly regarded the transaction as being at the lower level of offending and treated it accordingly. He was entitled to treat the appellant’s culpability as high given his previous record of drug offending and his casual approach to the supply of a drug he had to know was illegal. He gave the appellant an appropriate allowance for his plea of guilty and he looked at the totality of the offending. There is no quarrel with his approach except as to his starting point and the failure to recognise it was a single small supply of a social nature.
[26]	We are concerned solely with the final sentence. For the reasons given we regard it as within the Judge’s sentencing discretion. Another Judge might have reached the end result by a different route but it is the result, rather than the route, which we are concerned with on this appeal.

Result

[27]	The appeal is dismissed.

Solicitors:
Jones Fee, Auckland for Appellant
Crown Solicitors, Auckland