R v Convery CA235/06 [2006] NZCA 515 (11 December 2006)

Last Updated: 6 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA235/06

THE QUEEN

v

DANIEL JOHN CONVERY

Hearing: 29 November 2006

Court: Chambers, Randerson and Potter JJ Counsel: M N Pecotic for Appellant

H D M Lawry for Crown

Judgment: 11 December 2006 at 11 am

_{JUDGMENT OF THE COURT}

_{Leave to appeal is granted but the appeal against sentence is dismissed.}

REASONS OF THE COURT

_{(Given by Potter J)}

Introduction

[1] The appellant Daniel John Convery was found guilty following trial by jury on a representative charge of supplying a Class A controlled drug namely

_{methamphetamine.}

R V CONVERY CA CA235/06 11 December 2006

[2] At the start of the trial he entered guilty pleas to charges of possession of methamphetamine and possession of utensils.

[3] On 22 May 2006 the appellant was sentenced to four and a half years imprisonment on the lead offence of possession of methamphetamine for supply. A minimum period of imprisonment of two-thirds of that sentence, namely three years, was imposed.

[4] The appellant filed an appeal against conviction and sentence on 10 July

2006. His counsel has confirmed that the appeal against conviction is not pursued and that he appeals only the sentence, on the grounds that it is manifestly excessive. He seeks leave to appeal out of time, which was not opposed by the Crown.

Factual background

[5] On 12 August 2005 Police executed a search warrant at the appellant’s address in Glenfield, Auckland. He was present. In the bedroom occupied by the appellant, the Police found multiple sealable clear plastic bags of various sizes, small plastic bags with rice, three cellphones, a tick list, a notation pad detailing drug- related commentary, three glass methamphetamine pipes, various point bags with residue, razor blades, a broken methamphetamine pipe, two electronic scales, various point bags with a crystal substance, an electronic safe containing $3,550 in $20, $50 and $100 notes, a set of manual scales and an A4 document detailing financial outgoings (“the budget sheet”). When spoken to by Police, the appellant stated that he sold P to his mates to help them out.

Sentencing facts indication

[6] Following trial on 12 April 2006 Simon France J, the trial Judge, issued a minute in which he made findings as to the extent of the activity of the appellant in supplying methamphetamine. He took as a starting point the budget sheet. He stated that whoever may have written it, he was satisfied beyond doubt that it referred to

the appellant’s activities and that it envisaged sales of approximately six grams a week.

[7] The judge said he took into account the presence of three sets of scales, three cellphones and the money that was found at the appellant’s property. He was satisfied that Mr Convery had been involved in the sale of methamphetamine on what could be termed a low-level commercial basis. He was not satisfied that the budget sheet reflected an actual course of conduct sustained over a period of time, but rather indicated someone selling at low retail level, not necessarily as much as six grams a week “but with ambitions to achieve that level”.

[8] He said that relying on the categories identified in R v Arthur [2005] 3 NZLR

739 (which was the leading judgment of the Court of Appeal that applied at the time), he would classify the appellant as coming towards the bottom of the commercial quantity band, and as a starting point, probably falling around the cross- over between the commercial quantity and low-level supply bands.

Sentence

[9] The Judge stated the recognised predominant purpose of sentencing in the area of Class A drug dealing as being deterrence. Deterrence needed to be both general and, in the case of the appellant, specific, referring to his previous serious drug offending as being both “offensive and concerning”.

[10] He took a starting point of four years based on his finding that the offending involved low-level commercial supply of methampethamine for an indeterminate period.

[11] He noted that there were no mitigating factors.

[12] He determined that the starting point should be increased “by a modest six months” to reflect the appellant’s past offending, resulting in a final lead sentence of four years six months imprisonment.

[13] Turning to the matter of a minimum period of imprisonment, the Judge said he considered the appropriate response in the case of the appellant was to focus on the present offending rather than dramatically increasing the sentence to reflect past offences. He considered a stern response was required because:

(a) The present offending merited condemnation in itself;

(b) It merited condemnation because it was committed by a man whose eight year sentence for earlier drug offending had not expired when this offending occurred, and the eight year sentence itself followed a six year term for the same type of offending in Australia;

(c) Because of his offending the appellant was a threat to society which must be protected as far as that could be achieved.

[14] Those factors, the Judge said, required a minimum non-parole period, which he fixed at two-thirds of the sentence.

[15] A concurrent sentence of three months was imposed on the charge of possessing methamphetamine and the appellant was convicted and discharged on the remaining count.

Appellant’s submissions

[16] Ms Pecotic for the appellant submitted first, that the starting point of four years was too high. She referred to the three bands of supply established by the judgment in R v Arthur:

Category Quantity Starting Points

• Low Level supply: less than 5g 2-4 years

• Commercial quantity: 5-250g 3-9 years

• Large commercial quantity: 250g plus 8 years or more

[17] She submitted that the appellant’s offending fell within the ambit of band 1 or, at worst, within the lowest level of band 2. It was submitted that the starting point of four years was too high because, although Count 1 was a representative

count, the jury needed to be satisfied that supply was made on only one occasion between 1 June 2003 and 12 August 2005; the budget sheet referred only to an “estimated total profit per week” and did not represent an actual supply of methamphetamine but rather was in the nature of a “wish list”, and Mr Convery stated to the Police he was supplying a few friends.

[18] It appears that similar submissions were made to the sentencing Judge. Simon France J noted the submission for the appellant that the uncertainty over the level of dealing and quality of the product meant that the lower band with a starting point of two to four years should apply. The Judge stated that ultimately there was little in the issue, as bands 1 and 2 overlap.

[19] There was ample evidence to support the Judge’s assessment that this was low level commercial dealing. Not only was there the “budget sheet” indicating supply of six grams per week but there were the several items of drug paraphernalia and cash of $3,750 found by the Police at the appellant’s property, which supported that finding.

[20] The starting point of four years adopted by the trial Judge, at the lower end of band 2 and the upper end of band 1, was within the available range.

[21] Secondly, Ms Pecotic submitted that the uplift of six months to reflect past offending was too great because it failed to address the need to assist in the appellant’s rehabilitation and reintegration which is one of the purposes of sentencing in s 7 of the Sentencing Act 2002, as are the purposes of deterrence, denunciation and protection of the community. She submitted that the latter purposes were over-emphasised in the Judge’s approach to sentencing.

[22] We do not accept that submission. This Court stated in R v Arthur at [26]:

Repeat offending may well suggest significant uplifts are justified, given that deterrence is a fundamental principle of drug sentencing. If an offender has prior convictions for drug dealing, that is a good indication that a deterrent sentence at normal levels may well be insufficient to deter that particular individual from continuing to commit the same or similar offences.

[23] The Judge had available to him on sentencing the summary of facts that related to the sentence of eight years imposed on the appellant in 1995 for conspiring to import heroin. In addition the appellant had been sentenced in Australia to a six year term of imprisonment in relation to heroin. Obviously the significant sentences of imprisonment had not deterred the appellant from being involved in dealing with Class A drugs. We agree with Simon France J that the uplift of six months was “modest” in the circumstances.

[24] Thirdly, it was submitted for the appellant that the imposition of a minimum period of imprisonment under s 86 of the Sentencing Act is discretionary and the circumstances of this case did not require a minimum non-parole period greater than one-third of the sentence imposed. Ms Pecotic submitted that the increase in the starting point provided specific and general deterrence, and Mr Convery being of mature years, society would be better served by his rehabilitation and reintegration, such that a minimum period of imprisonment greater than one-third of the sentence was not required.

[25] Mr Convery’s previous offending placed him in the category where significant uplifts could be justified. The Judge chose an alternative approach - to focus on the present offending and to provide the stern response he considered was required, by imposing a minimum period of imprisonment of two-thirds of the sentence.

[26] The Judge’s approach was entirely appropriate. A non-parole period of

18 months (one-third of the four and a half years sentence) would be inadequate to reflect the overall criminality of the appellant’s offending, given his history of serious drug offending and the need to protect the public from his behaviour for an adequate period of time.

[27] Leave to appeal is granted but the appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington