Appeal allowed.
Sentence of three years’ imprisonment for offering to supply methamphetamine quashed and substituted with sentence of two years’ imprisonment.

REASONS OF THE COURT

(Given by Gendall J)

[1] The appellant was sentenced to three years’ imprisonment in the High Court at Invercargill, having been found guilty by a jury on one count of offering to supply the Class A drug methamphetamine, and four counts of offering to sell the Class C drug cannabis: HC INV CRI 2006-025-3586 12 December 2007. He appeals against that sentence.

Background

[2] Over a period of about two weeks between 25 September 2006 and 8 October 2006, the police intercepted telephone conversations and retrieved text messages sent by the appellant which clearly pointed to him being involved in drug dealing. In particular the intercepted evidence disclosed that he had offered to sell methamphetamine on one occasion. Further, he offered to supply cannabis leaf on a number of occasions, which formed the basis of the four Class C drug charges.
[3] The amount of methamphetamine the appellant offered to supply was one point, or one-tenth of a gram. The cannabis leaf offered for sale was bullets or “tinnies”, and it was clear that the appellant was involved in drug offending at a relatively low level.
[4] The sentencing Judge, Chisholm J, who had presided at the appellant’s trial said he was not surprised that the appellant was found guilty, there being clear evidence of drug activities over a short period of about a month.
[5] The appellant, after conviction, claimed that he was supplying cannabis only to his friends. The Judge noted that the appellant expressed remorse, although the Probation Officer considered him to be at high risk of reoffending. This was a realistic assessment if he continued to maintain the type of friends and social contacts that he had developed. Nevertheless, there were family and personal matters which gave some optimism towards rehabilitation.
[6] The Judge took the offer to supply methamphetamine as the lead offence, given it is a Class A drug offence. Applying R v Fatu [2006] 2 NZLR 72 (CA), the Judge took a starting point of two and a half years’ imprisonment, the offending falling within Band 1 for sale or supply of methamphetamine. He then uplifted this by nine months to reflect what he said was previous offending, and the cannabis convictions. The Judge then deducted three months for the appellant’s youth and prospects of rehabilitation, reaching a final sentence of three years’ imprisonment on the lead charge. He imposed one year’s imprisonment, concurrent, on the other four cannabis related charges.

Discussion

[7] Counsel for the appellant submitted that offering to supply was a lesser evil than actual supply. He said that offering to supply one-tenth of a gram of methamphetamine did not justify a starting point of two and a half years’ imprisonment, and whilst imprisonment was appropriate, a term of three years was manifestly excessive.
[8] The Crown contended that the appellant had to be sentenced on the totality of his offending and, although the quantity of methamphetamine offered for sale was small (so as to place the Judge’s starting point, viewed alone, at the upper level), the final starting point of three and a half years for clearly commercial drug dealing was proper. Counsel said that the Judge correctly applied the totality principle which required the focus to be on whether the final sentence reflected the overall criminality of the offending and the offender, rather than on how the sentence was constructed: R v Barker CA57/01 30 July 2001. It was appropriate that the lead sentence relate to the offer to supply methamphetamine, but that sentence then had to reflect the totality of the offending.
[9] The Judge may have structured his sentencing remarks differently, but the issue remains whether the sentence reflects the totality of the offending, after the allowance for personal mitigating and aggravating factors: R v Xie [2007] 2 NZLR 240 at [16] (CA).
[10] The appellant told the Probation Officer he sold cannabis to associates to make money to fund his own use of that drug. He was operating as a low-level commercial dealer in drugs, mostly cannabis. In assessing the criminal culpability of all the conduct of the offender, R v Terewi [1999] 3 NZLR 62 (CA) gives some guidance, where cannabis is involved. Whether there are offers to supply or sell cannabis to others on a modest commercial basis, starting points of between two and four years are justified, although where sales are infrequent and of a limited extent, a lower starting point may be justified. For methamphetamine, R v Fatu [2006] 2 NZLR 72 (CA) provides guidance, but with only one-tenth of a gram involved, it is difficult to place the offending within a sentencing range on its own. What is required is to view the true nature of the offender’s conduct. With cannabis the primary drug involved, any offending involving a commercial element, should attract a starting point for a sentence from two to four years, although if the amount of this drug is very small, exceptional circumstance may formerly have existed to justify a suspended sentence: R v Andrews [2000] 2 NZLR 205 (CA). That is not the case here and the scale of the commercial element is a factor in determining where to start within that range.
[11] We have concluded that the sentence of three years’ imprisonment was too high. In its totality the offending justified a starting point of two years’ imprisonment. It was aggravating that the appellant had a cannabis supply conviction less than one month before and was on bail at the time of this offending which required an uplift. This was balanced by the mitigating factors of youth and prospects of rehabilitation for which the Judge gave a three month discount. The comparative youth and positive matters in the Probation sentencing report, and the absence of any methamphetamine attributable to the appellant being found, justified the discount.
[12] In our view, the end result of an effective sentence of two years’ imprisonment is required. The sentence of three years’ imprisonment for offering to supply methamphetamine, even allowing for aggravating features of the cannabis offending, was too high.
[13] It was not argued that home detention was a suitable sentence. We consider that as the activities related to drug dealing in or from the home, and whilst on bail, home detention should not be available to the appellant.
[14] We agree with the Crown’s submission that it may be artificial to adopt the methamphetamine offending as the lead sentence in a case such as this but it has become the accepted practice given that it is Class A offending. However, the final sentence must reflect the totality of the appellant’s culpability.
[15] It follows that the appeal is allowed and the sentence of three years imprisonment on the charges of offering to supply methamphetamine is quashed. In its place a sentence of two years’ imprisonment is imposed. On the cannabis related charges, the concurrent sentences of one year’s imprisonment are upheld.

Solicitors:
D G Slater, Invercargill
Crown Law Office, Wellington

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