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The Queen v Richardson [2006] NZCA 217 (16 August 2006)

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The Queen v Richardson [2006] NZCA 217 (16 August 2006)

Last Updated: 25 August 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA85/06

THE QUEEN

v

BRIAN MORRIS RICHARDSON

Hearing: 8 August 2006

Court: Robertson, Rodney Hansen and Ronald Young JJ

Counsel: T M Petherick for Appellant
M D Downs for Crown

Judgment: 16 August 2006 at 3 pm

JUDGMENT OF THE COURT

A. The appeal is allowed.
B. The sentences of seven years and six months imprisonment on the charges of possession of methamphetamine for the purpose of supply and supplying methamphetamine and the minimum period of imprisonment of three years and nine months are quashed.
C. The appellant is sentenced to five years imprisonment on each of the charges of possession of methamphetamine for the purpose of supply and supplying methamphetamine.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1] The appellant pleaded guilty to charges of conspiring to supply methamphetamine, possession of methamphetamine for the purpose of supply (x2), supplying methamphetamine (x2), conspiring to supply ecstasy and conspiring to supply cannabis. He was sentenced by Potter J in the High Court at Gisborne to an effective sentence of seven years and six months imprisonment with a minimum period of imprisonment of three years and nine months.

Facts

[2] The charges followed a covert police operation in Gisborne, which included the interception of communications on the appellant’s cellphone and in his house. They disclosed that he was actively dealing in methamphetamine, ecstasy and cannabis. His activities included sourcing drugs on behalf of some of the seven associates who also faced charges arising out of the police operation.
[3] One of those associates, Grant Collins, supplied the appellant with two grams of methamphetamine on 22 November 2004. The appellant passed half of the consignment to two others who had already paid Mr Collins for it. These transactions founded the two charges of supplying methamphetamine.
[4] One of the charges of possession of methamphetamine for the purpose of supply arises from a text message sent by the appellant advising another associate that he had methamphetamine available for supply. No quantity was mentioned. The second charge of possession relates to a quantity of 11.25 grams found in the appellant’s possession when his car was stopped while being driven back to Gisborne. Communications previously intercepted showed he had travelled from Gisborne to acquire the methamphetamine for supply to others.
[5] Messages intercepted during October and November 2004 included offers to supply the appellant with ecstasy. One message referred to 100 tablets being available for $6,000. There were also three communications in which the appellant discussed acquiring cannabis for on-sale to others. No quantities were mentioned.

High Court sentence

[6] In discussing the appellant’s personal background, Potter J noted that he was then aged 43. He has a lengthy criminal history dating from 1986, including seven convictions for cannabis-related offending, the most recent of which resulted in a term of imprisonment. The Judge referred to the appellant’s heavy methamphetamine addiction which, according to the pre-sentence report, had led him to deal in drugs to supply his own habit. She noted the support of his partner, with whom he has a five-year-old daughter. The Judge referred to letters to the Court from the appellant’s partner, a friend and from the appellant himself in which he says he is determined to change his lifestyle and remain free of drugs. Potter J also noted, however, the probation officer’s assessment that the appellant has only a moderate level of motivation to address the factors that had contributed to his offending.
[7] The Judge noted as aggravating features of the offending the number of people with whom the appellant was involved in sourcing and supplying drugs, the variety of drugs, and the quantities involved. She identified as mitigating factors that guilty pleas were entered at the earliest practicable opportunity and the appellant’s cooperation with the police.
[8] The Judge said that whether or not the appellant was dealing in drugs principally to feed his own addiction, he was undoubtedly in business in a major way over a significant period of time. She referred to his drug dealing activities as a full-time occupation. She said he was "a primary, if not the primary, focus of the drug dealing conspiracy".
[9] Potter J saw the offending as involving commercial dealing on a significant scale which fell in the middle of band two in R v Fatu [2006] 2 NZLR 72. Band two refers to the supply of commercial quantities of between five and 250 grams and suggests a starting point of between three years and nine years imprisonment. Taking the charges of possession of methamphetamine for supply and supplying methamphetamine as the lead charges, she adopted a starting point of six years.
[10] The Judge said that to reflect the remaining charges – conspiracy to supply methamphetamine, conspiracy to supply ecstasy, conspiracy to supply cannabis – an uplift of four to five years was required, giving a starting point of 10 to 11 years. She added a further six months to take account of the appellant’s previous convictions and to reflect the range of drugs involved in reaching a starting point of 101/2 years.
[11] Potter J allowed a discount of three years for the guilty pleas in fixing the final sentence at seven years and six months. She saw that sentence as properly reflecting the totality of the offending and imposed it on the lead charges of possession of methamphetamine for the purpose of supply and supplying methamphetamine. She imposed concurrent sentences of two years on the charges of conspiracy to supply methamphetamine and conspiracy to supply cannabis and one year for conspiring to supply ecstasy.
[12] In considering whether to impose a minimum period of imprisonment, Potter J said:

[43] I am satisfied that a minimum period of imprisonment should be imposed in this case. As I have already stated, this was serious drug dealing on a significant commercial scale, which had wide, dangerous and pernicious effects for the community at large. Drug dealing reaches out with nasty tentacles into many parts of the community. It attaches to those who are most vulnerable. The sentencing principles of denouncement, deterrence and the requirement to protect the community from Mr Richardson and those who would carry out activities to spread these dangerous drugs, requires that a minimum period of imprisonment be imposed.
[44] I set that at 50% of the sentence imposed – three years nine months.

Appellant’s submissions

[13] Mr Petherick challenged the starting point adopted by the Judge. He submitted she was wrong to assess the more serious methamphetamine offending as falling in the middle of band two of Fatu. He pointed out that only modest quantities of methamphetamine were involved in the two transactions completed. He said there is nothing to show the appellant was a major dealer. The larger amount found in the appellant’s possession had been acquired on behalf of others. Counsel argued that if the appellant was a major distributor, electronic surveillance over several months would have uncovered a higher level of activity. Mr Petherick also pointed out that the appellant exhibited no signs of the affluence or conspicuous consumption which often betray a major dealer. He said all the signs indicated that the appellant was dealing primarily to support his habit.
[14] Mr Petherick also relied on the disparity with sentences of co-offenders who were sentenced by a different Judge at a later date. Their sentences range from 21 months to three years and two months for what Mr Petherick submitted was comparable offending. He argued that the starting point of three years adopted in their cases – at the lowest level of band two of Fatu – would have been appropriate.
[15] For the appellant, it was submitted that the circumstances of the offending did not warrant a minimum period of imprisonment. Counsel pointed out that minimum periods of imprisonment have seldom been ordered when the finite term of imprisonment has been less than nine years: see R v Anslow CA182/05 18 November 2005.
[16] Mr Petherick’s final point was to object to the Judge receiving and taking account of material introduced by the Crown on sentence. The Judge received a transcript of a conversation intercepted the day before the appellant’s car was stopped and the 11.25 grams of methamphetamine discovered in which the appellant discussed the price and quantity of methamphetamine he was seeking to acquire.

Crown response

[17] Mr Downs submitted that the Judge was right to categorise the offending as falling within the middle of band two of Fatu. He pointed out that for sentencing purposes the issue is not simply the quantity and purity of the drugs involved but also the role played by the offender: Fatu at [31]. Mr Downs submitted the appellant should be seen as a middleman who was trading in drugs of all classes. Relying on R v Kahui CA392/04 CA401/04 CA200/04 23 May 2005 and R v Barker CA57/01 30 July 2001, he submitted that offending of this nature called for a condign response as users are known to graduate in their preferences and such trading implies a greater connection to the drugs world. Mr Downs also referred to the appellant’s prior offending, arguing that issues of personal deterrence and public protection arise which were appropriately weighed by the Judge.
[18] Mr Downs supported the imposition of a minimum period of imprisonment. He said Anslow did not stand for the proposition that a minimum period of imprisonment is inappropriate if the sentence is less than nine years. As the appellant had dealt in controlled drugs of all classes over a significant period of time, a minimum period of imprisonment was justified for the purposes of denunciation and deterrence.
[19] Mr Downs defended the introduction of the additional material at sentencing. He said Crown counsel who appeared at sentence understood that guilty pleas were being entered on the basis of the depositions evidence, of which the summary of facts was just that – a summary. He said that when it became apparent from sentencing submissions lodged in advance of the hearing that the appellant was disputing the summary of facts, and contending that he was a mere courier of the 11.25 grams of methamphetamine, the Crown was entitled to introduce material to show that the appellant had been involved in procuring the methamphetamine found in his possession.

Discussion

[20] It is unnecessary for us to give detailed consideration to the appellant’s concerns about the additional material introduced at sentence. It is not possible for us to determine the precise role which the summary of facts was intended to have at sentence. In any event, we see the additional material as carrying no significant weight for sentencing purposes.
[21] We are satisfied that the final starting point adopted by the Judge was too high. We do not think she was justified in adopting a starting point of six years for the four methamphetamine supply charges. The quantities involved were at the low end of the range encompassed by band two in Fatu. We accept the submission that the circumstances overall do not show that the appellant was a major player. All the indications are that he operated towards the lower end of the market, procuring and passing on small quantities of drugs, mainly in order to feed his own habit.
[22] We do not, however, accept the submission that the starting point of three years adopted in sentencing the appellant’s co-offenders should apply. They did not face multiple charges of dealing in methamphetamine. The four who were sentenced for methamphetamine offending each admitted a single charge of conspiracy to supply or supply of methamphetamine.
[23] In our view, a starting point of four and a half years appropriately reflects the appellant’s methamphetamine offending. While the quantities involved were modest, the multiple transactions in which he was involved takes him above the lowest level in band two.
[24] There is nothing to indicate that the appellant was trafficking in any significant quantities of ecstasy and cannabis. We consider an uplift of two and a half years adequately reflects the additional offending and makes appropriate allowance for the aggravating features identified by the Judge. A starting point of seven years appropriately captures the totality of the offending and is in keeping with the approach taken to sentencing of the appellant’s co-offenders.
[25] A discount of two years for mitigating factors is appropriate and proportionate to the allowance made by the sentencing Judge. An effective sentence of five years results.
[26] We agree with Mr Downs that Anslow should not be understood as holding that a minimum period of imprisonment is inappropriate unless the term is nine years or more. The observations in Anslow merely reflect the reality that offending which is serious enough to warrant the imposition of a minimum period of imprisonment will generally attract a prison sentence of nine years or more.
[27] The present case is no exception. Without in any way minimising the seriousness of the offending, in our view, it cannot be said that it would be inapt in terms of denunciation and deterrence for the appellant to be eligible for release on parole after completing one-third of his sentence.

Result

[28] For these reasons, the appeal is allowed. The sentence of seven and a half years imprisonment with a minimum period of imprisonment of three years and nine months is quashed. The appellant is sentenced to five years imprisonment on each of the charges of possession of methamphetamine for the purpose of supply and supplying methamphetamine. The sentences on the charges of conspiring to supply methamphetamine, conspiring to supply ecstasy and conspiring to supply cannabis are unchanged.

Solicitors:
Gresson Grayson & Calver, Hastings for Appellant
Crown Law Office, Wellington

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[2]	The charges followed a covert police operation in Gisborne, which included the interception of communications on the appellant’s cellphone and in his house. They disclosed that he was actively dealing in methamphetamine, ecstasy and cannabis. His activities included sourcing drugs on behalf of some of the seven associates who also faced charges arising out of the police operation.
[3]	One of those associates, Grant Collins, supplied the appellant with two grams of methamphetamine on 22 November 2004. The appellant passed half of the consignment to two others who had already paid Mr Collins for it. These transactions founded the two charges of supplying methamphetamine.
[4]	One of the charges of possession of methamphetamine for the purpose of supply arises from a text message sent by the appellant advising another associate that he had methamphetamine available for supply. No quantity was mentioned. The second charge of possession relates to a quantity of 11.25 grams found in the appellant’s possession when his car was stopped while being driven back to Gisborne. Communications previously intercepted showed he had travelled from Gisborne to acquire the methamphetamine for supply to others.
[5]	Messages intercepted during October and November 2004 included offers to supply the appellant with ecstasy. One message referred to 100 tablets being available for $6,000. There were also three communications in which the appellant discussed acquiring cannabis for on-sale to others. No quantities were mentioned.

[6]	In discussing the appellant’s personal background, Potter J noted that he was then aged 43. He has a lengthy criminal history dating from 1986, including seven convictions for cannabis-related offending, the most recent of which resulted in a term of imprisonment. The Judge referred to the appellant’s heavy methamphetamine addiction which, according to the pre-sentence report, had led him to deal in drugs to supply his own habit. She noted the support of his partner, with whom he has a five-year-old daughter. The Judge referred to letters to the Court from the appellant’s partner, a friend and from the appellant himself in which he says he is determined to change his lifestyle and remain free of drugs. Potter J also noted, however, the probation officer’s assessment that the appellant has only a moderate level of motivation to address the factors that had contributed to his offending.
[7]	The Judge noted as aggravating features of the offending the number of people with whom the appellant was involved in sourcing and supplying drugs, the variety of drugs, and the quantities involved. She identified as mitigating factors that guilty pleas were entered at the earliest practicable opportunity and the appellant’s cooperation with the police.
[8]	The Judge said that whether or not the appellant was dealing in drugs principally to feed his own addiction, he was undoubtedly in business in a major way over a significant period of time. She referred to his drug dealing activities as a full-time occupation. She said he was "a primary, if not the primary, focus of the drug dealing conspiracy".
[9]	Potter J saw the offending as involving commercial dealing on a significant scale which fell in the middle of band two in R v Fatu [2006] 2 NZLR 72. Band two refers to the supply of commercial quantities of between five and 250 grams and suggests a starting point of between three years and nine years imprisonment. Taking the charges of possession of methamphetamine for supply and supplying methamphetamine as the lead charges, she adopted a starting point of six years.
[10]	The Judge said that to reflect the remaining charges – conspiracy to supply methamphetamine, conspiracy to supply ecstasy, conspiracy to supply cannabis – an uplift of four to five years was required, giving a starting point of 10 to 11 years. She added a further six months to take account of the appellant’s previous convictions and to reflect the range of drugs involved in reaching a starting point of 101/2 years.
[11]	Potter J allowed a discount of three years for the guilty pleas in fixing the final sentence at seven years and six months. She saw that sentence as properly reflecting the totality of the offending and imposed it on the lead charges of possession of methamphetamine for the purpose of supply and supplying methamphetamine. She imposed concurrent sentences of two years on the charges of conspiracy to supply methamphetamine and conspiracy to supply cannabis and one year for conspiring to supply ecstasy.
[12]	In considering whether to impose a minimum period of imprisonment, Potter J said:

[13]	Mr Petherick challenged the starting point adopted by the Judge. He submitted she was wrong to assess the more serious methamphetamine offending as falling in the middle of band two of Fatu. He pointed out that only modest quantities of methamphetamine were involved in the two transactions completed. He said there is nothing to show the appellant was a major dealer. The larger amount found in the appellant’s possession had been acquired on behalf of others. Counsel argued that if the appellant was a major distributor, electronic surveillance over several months would have uncovered a higher level of activity. Mr Petherick also pointed out that the appellant exhibited no signs of the affluence or conspicuous consumption which often betray a major dealer. He said all the signs indicated that the appellant was dealing primarily to support his habit.
[14]	Mr Petherick also relied on the disparity with sentences of co-offenders who were sentenced by a different Judge at a later date. Their sentences range from 21 months to three years and two months for what Mr Petherick submitted was comparable offending. He argued that the starting point of three years adopted in their cases – at the lowest level of band two of Fatu – would have been appropriate.
[15]	For the appellant, it was submitted that the circumstances of the offending did not warrant a minimum period of imprisonment. Counsel pointed out that minimum periods of imprisonment have seldom been ordered when the finite term of imprisonment has been less than nine years: see R v Anslow CA182/05 18 November 2005.
[16]	Mr Petherick’s final point was to object to the Judge receiving and taking account of material introduced by the Crown on sentence. The Judge received a transcript of a conversation intercepted the day before the appellant’s car was stopped and the 11.25 grams of methamphetamine discovered in which the appellant discussed the price and quantity of methamphetamine he was seeking to acquire.

[17]	Mr Downs submitted that the Judge was right to categorise the offending as falling within the middle of band two of Fatu. He pointed out that for sentencing purposes the issue is not simply the quantity and purity of the drugs involved but also the role played by the offender: Fatu at [31]. Mr Downs submitted the appellant should be seen as a middleman who was trading in drugs of all classes. Relying on R v Kahui CA392/04 CA401/04 CA200/04 23 May 2005 and R v Barker CA57/01 30 July 2001, he submitted that offending of this nature called for a condign response as users are known to graduate in their preferences and such trading implies a greater connection to the drugs world. Mr Downs also referred to the appellant’s prior offending, arguing that issues of personal deterrence and public protection arise which were appropriately weighed by the Judge.
[18]	Mr Downs supported the imposition of a minimum period of imprisonment. He said Anslow did not stand for the proposition that a minimum period of imprisonment is inappropriate if the sentence is less than nine years. As the appellant had dealt in controlled drugs of all classes over a significant period of time, a minimum period of imprisonment was justified for the purposes of denunciation and deterrence.
[19]	Mr Downs defended the introduction of the additional material at sentencing. He said Crown counsel who appeared at sentence understood that guilty pleas were being entered on the basis of the depositions evidence, of which the summary of facts was just that – a summary. He said that when it became apparent from sentencing submissions lodged in advance of the hearing that the appellant was disputing the summary of facts, and contending that he was a mere courier of the 11.25 grams of methamphetamine, the Crown was entitled to introduce material to show that the appellant had been involved in procuring the methamphetamine found in his possession.

[20]	It is unnecessary for us to give detailed consideration to the appellant’s concerns about the additional material introduced at sentence. It is not possible for us to determine the precise role which the summary of facts was intended to have at sentence. In any event, we see the additional material as carrying no significant weight for sentencing purposes.
[21]	We are satisfied that the final starting point adopted by the Judge was too high. We do not think she was justified in adopting a starting point of six years for the four methamphetamine supply charges. The quantities involved were at the low end of the range encompassed by band two in Fatu. We accept the submission that the circumstances overall do not show that the appellant was a major player. All the indications are that he operated towards the lower end of the market, procuring and passing on small quantities of drugs, mainly in order to feed his own habit.
[22]	We do not, however, accept the submission that the starting point of three years adopted in sentencing the appellant’s co-offenders should apply. They did not face multiple charges of dealing in methamphetamine. The four who were sentenced for methamphetamine offending each admitted a single charge of conspiracy to supply or supply of methamphetamine.
[23]	In our view, a starting point of four and a half years appropriately reflects the appellant’s methamphetamine offending. While the quantities involved were modest, the multiple transactions in which he was involved takes him above the lowest level in band two.
[24]	There is nothing to indicate that the appellant was trafficking in any significant quantities of ecstasy and cannabis. We consider an uplift of two and a half years adequately reflects the additional offending and makes appropriate allowance for the aggravating features identified by the Judge. A starting point of seven years appropriately captures the totality of the offending and is in keeping with the approach taken to sentencing of the appellant’s co-offenders.
[25]	A discount of two years for mitigating factors is appropriate and proportionate to the allowance made by the sentencing Judge. An effective sentence of five years results.
[26]	We agree with Mr Downs that Anslow should not be understood as holding that a minimum period of imprisonment is inappropriate unless the term is nine years or more. The observations in Anslow merely reflect the reality that offending which is serious enough to warrant the imposition of a minimum period of imprisonment will generally attract a prison sentence of nine years or more.
[27]	The present case is no exception. Without in any way minimising the seriousness of the offending, in our view, it cannot be said that it would be inapt in terms of denunciation and deterrence for the appellant to be eligible for release on parole after completing one-third of his sentence.