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The Queen v Levett [2006] NZCA 37 (20 March 2006)

Last Updated: 6 April 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA437/05

THE QUEEN

v

GARETH DAVID LEVETT

Hearing: 9 March 2006

Court: Robertson, Wild and Venning JJ

Counsel: L C Ord for Appellant
S B Edwards for Crown

Judgment: 20 March 2006

JUDGMENT OF THE COURT

A The appeal is allowed.

B The effective sentence of eight years’ imprisonment is quashed and replaced with a sentence of six years’ imprisonment.

____________________________________________________________________

REASONS

(Given by Venning J)

Introduction

[1] On 7 October 2005 the appellant was sentenced by Goddard J in the High Court at Wellington to eight years’ imprisonment having pleaded guilty to charges of possession of a Class A drug (methamphetamine) for supply, possession of a Class B drug (Ecstasy) for supply, possession of a Class C drug (cannabis) for supply, cultivation of a Class C drug (cannabis), receiving, and unlawful possession of a pistol. The Court also made an order for forfeiture of $5,000 found in the appellant’s home at the time of arrest.
[2] The appellant appeals against the sentence of imprisonment.

Background

[3] On 12 April 2005 the police executed a search warrant at the appellant’s address in Crofton Downs, Wellington. After an initial refusal to co-operate the appellant pointed out various locations within his home where drugs were situated. The police were directed to a cloth type bag. Inside it they found six snap-lock bags each containing various quantities of methamphetamine. Other empty snap-lock bags of the type used to package methamphetamine for sale were also found inside the cloth bag.
[4] During the search the appellant threw a snap-lock bag, that he had on him, out a window. The bag was recovered and found to contain 7 grams of methamphetamine. In total 17 grams of methamphetamine was located at the appellant’s address. The methamphetamine had a street value of $17,000.
[5] The police also located 39 Ecstasy tablets in the cloth bag. The Ecstasy tablets had a street value of $2,440.
[6] In addition the police located several green ammunition tins which contained snap-lock bags that in turn held varying amounts of dried cannabis. A number of the bags contained measured ounces of cannabis. In total the police located 1,240 grams. The cannabis had a street value of $13,284.
[7] In the course of the search the police also located an organised cannabis growing operation set up in the basement. It had sodium lighting, power units and fertiliser. Approximately 130 cannabis seedlings and two mature cannabis plants were being cultivated at the time of the search. The police also located a further mature cannabis plant in the garden at the rear of the property.
[8] While searching the bedroom the police located a Smith and Wesson pistol together with 80 rounds of .38 ammunition. The police also found stolen property to a value of $2,972.
[9] Finally, the police also located $5,000 in cash at the property.
[10] The appellant pleaded guilty on 16 September 2005 to all charges and was remanded to the High Court for sentence.

The sentence

[11] The Judge summarised the facts as above, then considered the appellant’s personal situation. The Judge noted the appellant was a 35 year old man who, prior to arrest, was living with his wife and two year old son. She also noted the appellant had previous convictions, but accepted they were not relevant to the sentencing exercise before her. The Judge accepted the appellant was a drug addict and noted a number of factors counsel had identified as personal mitigating factors. The Judge considered there were three separate categories of offending: the drug offending, the possession of the firearm, and the receiving. She concluded that each category required separate cumulative terms as they involved different types of criminality.
[12] Goddard J then referred to decisions of this Court in R v Arthur CA 382/04 17 March 2005 and R v Wallace & Christie [1999] 3 NZLR 159 relating to methamphetamine offending, R v Terewi [1999] 3 NZLR 62 and R v Andrews [2000] 2 NZLR 205 for principles applicable to the cultivation of cannabis and R v Smith CA562/99 23 March 2000 as an example of a sentence in relation to cannabis for supply. She also took account of the Ecstasy found in the appellant’s possession and concluded that an overall end sentence of seven years’ imprisonment was required to reflect the totality of the drug offending. She then imposed two further cumulative sentences of six months’ imprisonment each for the receiving charge and for possession of the Smith and Wesson pistol. In total, the sentence imposed was eight years, together with the order for forfeiture of the $5,000 cash.

Appellant’s case

[13] The appellant appeals against sentence on the grounds the sentence of eight years is manifestly excessive on the grounds:

(a) The total sentence is excessive and not in accordance with the bands identified in R v Arthur;
(b) The sentencing Judge failed to specify a starting point and articulate a discount for the guilty plea;
(c) There was insufficient, or no apparent, discount given for the guilty plea;
(d) There was a failure by the sentencing Judge properly to consider the totality principle by adding the cumulative sentences.
(e) The sentence is not in line with other sentences for offenders with the same or similar charges and circumstances.

Crown submissions

[14] For the Crown Ms Edwards acknowledged that the Judge did not articulate a starting point for the drug offending nor quantify the discount given for the mitigating factors, in particular the appellant’s early guilty pleas, but submitted that it was plain from the sentencing notes that the Judge had those issues clearly in her mind. Ms Edwards submitted that a starting point between eight and nine years for the drug offending as a whole was justifiable and an adjustment of one or two years from the starting point for mitigating factors would have been within the range available to the sentencing Judge in the exercise of her discretion so that it could not be said the end sentence was manifestly excessive. She noted that the methamphetamine and the Ecstasy tablets both fell within a broad category of commercial dealing. She noted there was a commercial element in the cultivation of the cannabis which brought the appellant within the second category identified in R v Terewi and which would have warranted a starting point of between two and four years for that offending alone. On that basis Ms Edwards submitted that the total of seven years’ imprisonment for the drug offending could not be criticised. Ms Edwards submitted that the offences of receiving and possession of the firearm warranted separate cumulative sentences.

Discussion

[15] There is a difficulty in that the sentencing Judge did not expressly identify a starting point nor articulate the discount provided for the guilty plea and other personal mitigating factors. Both are necessary steps in the sentencing process as observed by a full Court in R v Taueki [2005] 3 NZLR 372 (CA). In order to test the submission that the end sentence was manifestly excessive it is necessary for this Court to engage in that process.
[16] Section 85(4) requires that if concurrent sentences are to be imposed (as they properly were in this case for the drug dealing) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending. The first step in the present case is to assess the appropriate sentence to reflect the criminality of the drug offending taken as a whole.
[17] In this case the possession of 17 grams of methamphetamine having a street value of $17,000 places the offending clearly within the second band identified by the Court in R v Arthur, (as subsequently confirmed in R v Fatu CA415/04 18 November 2005) but towards the lower end of the band. Possession of that quantity of methamphetamine would of itself support a start point for sentence, before mitigating factors, of between four and five years’ imprisonment. To that must be added a further term to take account of the additional drug offending. The 39 Ecstasy tablets, 1240 grams of cannabis and the cannabis growing operation would support a sentence of between three and three and a half years’ imprisonment. Having regard to the totality principle, an appropriate start point for sentence on the drug related offending is seven and a half years before taking account of personal aggravating or mitigating factors.
[18] In fixing the starting point for the drug related offending at seven and a half years this Court considers that the receiving charge ought properly to be regarded as part of the drug offending because the goods received seem to have been provided as payment or part payment for the drugs. The goods received thus effectively represent proceeds of the drug dealing operation. We consider that the criminality involved in the receiving is sufficiently taken account of in the start point of seven and a half years for the drug offending.
[19] We agree with the Judge that it is appropriate to impose a cumulative sentence of six months for the separate offence of possession of the firearm. The effective start point before personal mitigating and aggravating factors then is eight years’ imprisonment.
[20] As acknowledged by the Judge the principal mitigating factor in the appellant’s favour is his relatively early guilty pleas. Taking as much account as this Court can also of the circumstances of the offender, the appropriate discount for mitigating factors is a total of two years. The end result is an effective sentence of six years’ imprisonment.
[21] There is a check available with regard to the appropriate length of sentence. In arriving at a sentence of seven years for the drug offending, after taking account of the guilty pleas, the sentencing Judge must have taken a starting point in the vicinity of nine years. That put the offending at the very top of the second category in Arthur. It is what would apply to drug dealing involving 250 grams of methamphetamine with a street value approaching $250,000. The total value of the drugs in this case in Classes A, B and C was approximately $33,000. That analysis confirms that the starting point was too high.

Result

[22] The appeal is allowed. The total sentence of eight years’ imprisonment is quashed. It is replaced by a sentence of six years’ imprisonment.
[23] That term is made up as follows. Five and a half years’ on the charge of possession of methamphetamine for supply; 18 months’ concurrent on the charge of possession of Ecstasy for supply; two years’ concurrent on the charge of possession of cannabis for supply; three months’ concurrent on the charge of cultivation of cannabis; and six months’ concurrent on the receiving. In addition, on the possession of a firearm, six months’ imprisonment cumulative on the sentence of five and a half years’ imprisonment for possession of methamphetamine for supply.

Solicitors:
Sladden Cochrane & Co, Wellington for Appellant
Crown Law Office, Wellington

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[3]	On 12 April 2005 the police executed a search warrant at the appellant’s address in Crofton Downs, Wellington. After an initial refusal to co-operate the appellant pointed out various locations within his home where drugs were situated. The police were directed to a cloth type bag. Inside it they found six snap-lock bags each containing various quantities of methamphetamine. Other empty snap-lock bags of the type used to package methamphetamine for sale were also found inside the cloth bag.
[4]	During the search the appellant threw a snap-lock bag, that he had on him, out a window. The bag was recovered and found to contain 7 grams of methamphetamine. In total 17 grams of methamphetamine was located at the appellant’s address. The methamphetamine had a street value of $17,000.
[5]	The police also located 39 Ecstasy tablets in the cloth bag. The Ecstasy tablets had a street value of $2,440.
[6]	In addition the police located several green ammunition tins which contained snap-lock bags that in turn held varying amounts of dried cannabis. A number of the bags contained measured ounces of cannabis. In total the police located 1,240 grams. The cannabis had a street value of $13,284.
[7]	In the course of the search the police also located an organised cannabis growing operation set up in the basement. It had sodium lighting, power units and fertiliser. Approximately 130 cannabis seedlings and two mature cannabis plants were being cultivated at the time of the search. The police also located a further mature cannabis plant in the garden at the rear of the property.
[8]	While searching the bedroom the police located a Smith and Wesson pistol together with 80 rounds of .38 ammunition. The police also found stolen property to a value of $2,972.
[9]	Finally, the police also located $5,000 in cash at the property.
[10]	The appellant pleaded guilty on 16 September 2005 to all charges and was remanded to the High Court for sentence.

[15]	There is a difficulty in that the sentencing Judge did not expressly identify a starting point nor articulate the discount provided for the guilty plea and other personal mitigating factors. Both are necessary steps in the sentencing process as observed by a full Court in R v Taueki [2005] 3 NZLR 372 (CA). In order to test the submission that the end sentence was manifestly excessive it is necessary for this Court to engage in that process.
[16]	Section 85(4) requires that if concurrent sentences are to be imposed (as they properly were in this case for the drug dealing) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending. The first step in the present case is to assess the appropriate sentence to reflect the criminality of the drug offending taken as a whole.
[17]	In this case the possession of 17 grams of methamphetamine having a street value of $17,000 places the offending clearly within the second band identified by the Court in R v Arthur, (as subsequently confirmed in R v Fatu CA415/04 18 November 2005) but towards the lower end of the band. Possession of that quantity of methamphetamine would of itself support a start point for sentence, before mitigating factors, of between four and five years’ imprisonment. To that must be added a further term to take account of the additional drug offending. The 39 Ecstasy tablets, 1240 grams of cannabis and the cannabis growing operation would support a sentence of between three and three and a half years’ imprisonment. Having regard to the totality principle, an appropriate start point for sentence on the drug related offending is seven and a half years before taking account of personal aggravating or mitigating factors.
[18]	In fixing the starting point for the drug related offending at seven and a half years this Court considers that the receiving charge ought properly to be regarded as part of the drug offending because the goods received seem to have been provided as payment or part payment for the drugs. The goods received thus effectively represent proceeds of the drug dealing operation. We consider that the criminality involved in the receiving is sufficiently taken account of in the start point of seven and a half years for the drug offending.
[19]	We agree with the Judge that it is appropriate to impose a cumulative sentence of six months for the separate offence of possession of the firearm. The effective start point before personal mitigating and aggravating factors then is eight years’ imprisonment.
[20]	As acknowledged by the Judge the principal mitigating factor in the appellant’s favour is his relatively early guilty pleas. Taking as much account as this Court can also of the circumstances of the offender, the appropriate discount for mitigating factors is a total of two years. The end result is an effective sentence of six years’ imprisonment.
[21]	There is a check available with regard to the appropriate length of sentence. In arriving at a sentence of seven years for the drug offending, after taking account of the guilty pleas, the sentencing Judge must have taken a starting point in the vicinity of nine years. That put the offending at the very top of the second category in Arthur. It is what would apply to drug dealing involving 250 grams of methamphetamine with a street value approaching $250,000. The total value of the drugs in this case in Classes A, B and C was approximately $33,000. That analysis confirms that the starting point was too high.