The Queen v Walker [2008] NZCA 145 (4 June 2008)

Last Updated: 11 June 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA706/2007

[2008] NZCA 145

THE QUEEN

v

DARYL IAN GEORGE WALKER

Hearing: 28 May 2008

Court: Glazebrook, Chisholm and Cooper JJ

Counsel: M H McIvor for Appellant
K Raftery for Respondent

Judgment: 4 June 2008 at 4.00 pm

JUDGMENT OF THE COURT

1. An extension of time for appealing is granted.
   
2. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

[1] The appellant was charged under the Misuse of Drugs Act 1975 with possession of methamphetamine for supply, supply of methamphetamine, possession of cannabis for supply and possession of utensils. He was also charged under the Arms Act 1983 with unlawful possession of a firearm, explosives and under s 202A of the Crimes Act 1961 with possession of an offensive weapon. The jury found him guilty of the offending under the Misuse of Drugs Act. He pleaded guilty on arraignment to the other charges.
[2] Asher J, who was the trial Judge, sentenced him to an effective term of four years’ imprisonment. The appellant now appeals against his sentence. The appeal was filed out of time, counsel having sent the papers to the prison where he wrongly thought the appellant remained detained. In the circumstances, the Crown does not oppose an extension of time for filing the appeal.

Facts

[3] On 31 October 2006 a car being driven by the appellant in Hamilton was stopped by the police for the purposes of a routine inspection. There were two other persons in the car, one of whom, Mr Garden, later became a co-accused. When Mr Garden got out of the car, a tin container fell out of his clothes. It was subsequently established that the tin belonged to the appellant. In the container was just over one gram of methamphetamine. A search of the vehicle revealed 13.4 grams of cannabis in addition to a number of items suggesting commercial drug dealing. There were two sets of electronic scales, a butane lighter, a “tick book”, cut off straws able to be used as scoops, a torch, cotton buds and $615 in cash. Also discovered in the search were a sawn off .22 rifle, ammunition and an axe handle.
[4] Later a search of the property occupied by the appellant and his co-offender resulted in the discovery of further electronic scales, a pipe and snap lock bags. A surveillance camera had been mounted at the address.

The sentence

[5] Asher J noted that the quantity of methamphetamine found meant that the offending fell within Band 1 of the bands identified by this Court in R v Fatu [2006] 2 NZLR 72. There was no controversy about that issue at the sentencing hearing, or on appeal.
[6] Asher J recorded the Crown’s submission that the appropriate starting point for sentencing purposes would be in the range of two years nine months’ to three years six months’ imprisonment in respect of the two most serious methamphetamine charges, with six to twelve month terms of imprisonment for the other charges. He noted that the range that had been identified in Fatu for Band 1 offending was two to four years, and he adopted a starting point of three years six months’ imprisonment. His reasons were set out at [13 - 15] of the sentence:

[13] While the amounts involved were relatively small, there is every indication that you were in control of what Mr Crayton fairly described as a mobile drug retail outlet. There was both methamphetamine and cannabis available for immediate supply, along with snaplock bags in which to supply them. There was also cash in the sun visor of the car of $615.00. The torch and the bags and scales all indicate the ability to sell drugs in a quick and efficient manner.

[14] The presence of the gun and the axe handle also corroborate this, although I hasten to add that I am not going to be treating the presence of these items as an aggravating factor in relation to your methamphetamine offending as I will consider them separately.

[15] I am satisfied, from the evidence I heard at the trial, in particular the evidence from Ms Tavendale, that the tin that fell from Mr Garden’s clothing in fact belonged to you Mr Walker. I take the view that you would have been responsible for setting up the surveillance equipment at your home, and I note that items were found in your room which further support the conclusion that you were involved in the ongoing commercial supply of drugs on a not insignificant scale. I therefore consider it appropriate to place the starting point for the supply charges at the higher end of the band one range. I consider the appropriate starting point to be three years six months’ imprisonment.

[7] Turning then to the firearm and ammunition charges, the Judge noted that the appellant had been found with a sawn off .22 calibre rifle, “adapted for quick and easy use”, the “equivalent of a crude pistol”. There was also ammunition. He held that a starting point of six months’ imprisonment would be appropriate. He said:

[17] I consider it appropriate to impose a cumulative sentence in relation to these charges. While I have no doubt that the firearm and ammunition were associated with your drug selling activities, I consider that those charges are sufficiently different in kind to warrant a cumulative sentence. For the reasons I am yet to come to relating to your previous record, this was serious offending which warrants separate recognition.

[8] The Judge then reviewed matters relating to the appellant personally. He referred in particular to what he described as an extensive history of convictions starting when the appellant was 17 years of age and continuing with escalating seriousness down to the current offending, committed at the age of 34 years. Included in this list were two sentences of male assaults female, a sentence of one year eight months’ imprisonment on a charge of unlawful possession of a firearm. The Judge held that the record showed “an alarming trend towards violence and firearms”. The Judge mentioned the appellant’s honest approach to discussions with the probation officer, but also noted that he had returned two positive drug tests whilst in custody and that he had been assessed as being a high risk offender.
[9] Having reviewed the relevant considerations personal to the appellant, the Judge indicated that he did not think that any uplift or reduction would be appropriate in relation to the starting point for the methamphetamine offending. However, he thought there should be a significant increment in relation to the Arms Act charges because of the appellant’s bad record. He allowed a further six months in respect of that consideration so that the sentence for those charges was one of twelve months’ imprisonment. Having got to that point, however, he considered that it was appropriate to deduct three months in respect of the appellant’s guilty plea on those matters, even though it had only been made when the appellant was arraigned at the trial.
[10] These considerations took the Judge to a possible effective sentence of four years and three months’ imprisonment. However, he then had regard to the totality of the offending, and the need to ensure that the total period of imprisonment was not out of proportion to the gravity of the overall offending. This led him to deduct a further three months, to arrive at a total of four years.
[11] Concurrent sentences were imposed of three years and six months on the charges of supply and possession for supply of methamphetamine, with further concurrent terms of one year for possession of cannabis for supply, three months for possession of utensils, six months for unlawful possession of explosives and three months for the unlawful possession of an offensive weapon. A cumulative sentence of six months’ imprisonment was imposed for the unlawful possession of a firearm, giving the effective overall sentence of four years.

Submissions

[12] Mr McIvor accepted that the Judge correctly sentenced on the basis that the matter fell within Band 1 Fatu. Nor did he challenge, at least directly, a cumulative sentence of six months’ imprisonment imposed in respect of the unlawful possession of a firearm.
[13] The issue pursued on appeal was that the starting point of three years and six months for the methamphetamine charges was too high when viewed with the cumulative sentence on the firearm charge, and when compared with the sentences imposed in other cases. Mr McIvor placed particular emphasis on the small amount of methamphetamine involved.
[14] For the Crown, Mr Raftery argued that the starting point of three and a half years adopted by the Judge in respect of the methamphetamine offending was not manifestly excessive. It was within the range open to the Judge. A cumulative sentence had been appropriate and the overall sentence was not excessive having regard to the totality principle.

Discussion

[15] As Mr Raftery pointed out, in its decision in Fatu the Court stated at [31] that where an offender fits, within any particular Band, will depend on a range of considerations:

Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band, with the converse applying to those whose role is less significant. Obviously the sentencing Judge will also need to take into account the principles of sentencing referred to in s 8 of the Sentencing Act 2002. Further, the aggravating and mitigating factors relevant to the offending (as opposed to the offender), as set out in s 9 of the Sentencing Act, will also be highly relevant in fixing the starting point within a particular band.

[16] Here, the Judge clearly articulated the reasons that he had for adopting the starting point of three years six months. We have already quoted the observations that he made at [13 - 15] of the sentence. In summary, he thought that a starting point should be adopted at the higher end of the Band 1 range having regard to his conclusion that the appellant had been involved in the on-going commercial supply of drugs on a “not insignificant scale”. Then, although there were some aggravating considerations related to the appellant personally (included in his record were previous convictions for possession of utensils, possession of methamphetamine, and possession of LSD as well as a range of other offending not relevant to the weapons related charges) the Judge did not increase the sentence on that account. His reasoning so far as that is concerned was set out at [21] of the sentence:

Your history does not show drug offending of the most serious order and I consider that there are some positive aspects to your personality which outweigh any aggravating factors I might otherwise take into account.

[17] In the circumstances, we do not consider that there was any error in the approach taken to fixing the starting point for the most serious charges of supply and possession for supply of methamphetamine. Although the amount of methamphetamine found in the appellant’s possession was small, quantity is only one consideration. The amount of a drug found in possession of a supplier on the occasion of his arrest will not always be a good guide to the extent to which he has been engaged in supply. A low amount might reflect a high level of recent dealing. This is not a case where the offending involved only possession for supply; the jury convicted the appellant of supply as well. Notionally then, he had previously been in possession of a greater amount of methamphetamine. How much, of course, is unknown. But it was legitimate for the Judge, in assessing the gravity of the offending, to take into account the various items found in the appellant’s possession, including the tick book as well as other common paraphernalia of drug dealing. In the circumstances of this case, we consider it was open to the Judge to conclude, as he did, that the appellant was somebody “involved in the on-going commercial supply of drugs on a not insignificant scale”. This in turn justified fixing a starting point towards the upper end of Band 1.
[18] Mr McIvor referred to the Court’s decision in R v Hill [2008] NZCA 41 in which the appellant had been found with 6.3 grams of methamphetamine, empty snaplock bags and cash totalling $5,585. He submitted that the starting point of three years six months upheld in that case meant that the same starting point in the present case was too high. We do not agree. That was a case where the appellant had been convicted on only one count, alleging possession of methamphetamine for supply. There was no charge of supply. Further there was evidence that the appellant was an addict, and that a significant amount of the methamphetamine found in his possession would have been for his personal use. The starting point had to be assessed on that basis, and reasoning such as that relied on by Asher J to arrive at the starting point in this case would not have been available.
[19] Nor are we persuaded that the starting point adopted was inconsistent with the starting point adopted in R v Roderick HC WN CRI 2006-085-4424 1 September 2006 Wild J, another case to which we were referred by Mr McIvor. In that case, the offender had been found with five points of methamphetamine and 28 grams of cannabis in his possession, and faced in addition a number of firearms charges. Wild J described him as a “fairly low-level retailer”. Here, as is apparent from the remarks he made, Asher J took a different view. We consider that was open to him on the facts.
[20] Although the appellant did not challenge the imposition of a cumulative sentence in respect of the unlawful possession of a firearm, part of his argument was that the starting point of three years six months for the methamphetamine related offending was too high in the context that a cumulative sentence had been imposed. Once the point is reached that the starting point of three years six months was in itself appropriate, the imposition of a cumulative term of six months in respect of the firearms charges does not result in a total sentence which was excessive.
[21] As we have already noted, the Judge adjusted the sentence downwards by three months to ensure that the overall sentence imposed was appropriate. We are satisfied that if the totality of the offending in this case is taken into account, the effective sentence of four years’ imprisonment imposed was not out of proportion to its overall gravity.

Result

[22] An extension of time for appealing is granted but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington