Chapman v R [2011] NZCA 134 (5 April 2011)

Last Updated: 13 April 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA593/2010 [2011] NZCA 134

BETWEEN QUINTIN BRUCE CHAPMAN Appellant

AND THE QUEEN Respondent

Hearing: 23 February 2011

Court: O'Regan P, Winkelmann and Chisholm JJ

Counsel: R L Thomson for Appellant J M Jelas for Respondent

Judgment: 5 April 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by Winkelmann J)

[1] The appellant, Mr Chapman, pleaded guilty in the District Court to one representative count of supplying methamphetamine, and later pleaded guilty in the High Court to one representative count of supplying methamphetamine and one count of conspiring to supply methamphetamine. He was sentenced on 25 August 2010 by Lang J to eight years imprisonment. He now appeals against sentence on the grounds that the sentence is manifestly excessive.

Factual background

[2] The charges arose from two separate police operations known as Operations Leo and Moremi.
[3] Operation Leo involved the interception by the police of a large volume of cellphone and text messages communication. Although the appellant was not initially a target of Operation Leo, the police turned their attention to him when their monitoring of the communications showed that the appellant was in regular contact with some of the operation’s targets. The police then sought an extension of the interception warrant so that they could intercept the appellant’s phone calls and text messages. Over 84 days, ending in May 2008, the police intercepted just over 7,000 communications from the appellant’s cellphone, of which approximately 2,295 were related to drug dealing in one way or another. By his plea, the appellant accepted that those communications demonstrated that he completed supplies of at least 220 grams of methamphetamine during those 84 days.
[4] Operation Moremi was a separate operation which took place between 18 June 2008 and 14 August 2008. Again, in the course of intercepting the communications of a number of (different) people of interest the police found that the appellant was in contact with them. Through interceptions, the police established that the appellant supplied 2.4 grams of methamphetamine and made two further supplies of an unknown quantity. Those supplies were the subject of the representative count. He was also involved in additional communications concerning the prospective supply of approximately 4.9 grams of methamphetamine. This was the subject of the conspiracy to supply count.
[5] Although the appellant pleaded guilty to the two counts arising out of Operation Moremi, the only amount of supply quantified in this offending was 2.4 grams.

Sentencing Judge’s approach

[6] The Judge said that although the offending occurred in different time frames, and involved different people he proposed to treat the offending as comprising a single series of incidents, and fix an overall starting point that reflected the totality for the offending. The Judge referred to the leading authority in this area R v Fatu.[1] In that case, the Court of Appeal identified a number of bands of offending set principally according to the amount of methamphetamine involved. Band 2 relates to the supply of five to 250 grams of methamphetamine, and will attract a starting point of between three and nine years imprisonment. Band 3 is for amounts above 250 grams, and such offending will attract a starting point in the range of eight to eleven years imprisonment.
[7] The Judge said that the Operation Leo offending easily put the appellant into the top of band 2 and noted that counsel for the appellant and the Crown accepted that a starting point in relation to that offending of eight years imprisonment was appropriate. In relation to the Operation Moremi offending, the Judge said that a starting point of four and a half years imprisonment would ordinarily be appropriate. He acknowledged that the two sentences should not simply be added together as that would result in a penalty disproportionate to the gravity of the offending. Nevertheless, the Operation Moremi offending did add seriousness to the earlier offending because it disclosed additional sources of supply. The Judge was also satisfied that when taken together, the offending detected in the two operations meant that the appellant was involved in the supply of methamphetamine of more than 250 grams. These factors meant that the appellant moved from the top end of band 2 in Fatu to the bottom end of band 3.
[8] The Judge adopted an overall starting point of 10 years imprisonment to take into account the totality of the offending. Although Mr Chapman had previous convictions involving methamphetamine, Lang J did not impose an uplift because they did not involve supply. He allowed a discount of 20 per cent to reflect the appellant’s guilty pleas and sentenced the appellant as follows. On the representative charge of supplying methamphetamine (Operation Leo), eight years imprisonment. On the charge of conspiring to supply methamphetamine (Operation Moremi), three years imprisonment. On the representative charge of supplying methamphetamine (Operation Moremi), three years imprisonment. Those sentences were concurrent.

Grounds of appeal

[9] For the appellant Ms Thomson accepts that the Judge adopted an appropriate starting point for the Operation Leo offending, and that the approach in treating the overall offending as a single series of incidents was also appropriate. She takes issue with the Judge’s conclusion that the offending in Operation Moremi meant that the appellant was involved in the supply of more than 250 grams, and was therefore appropriately sentenced by reference to band 3 of Fatu. The conclusion that more than 250 grams was supplied, involves the assumption that at least 27.55 grams was supplied pursuant to that conspiracy. Ms Thomson makes the point that as was common ground at sentence, there was no evidence as to the precise amount supplied pursuant to the conspiracy.
[10] Ms Thomson argues that the offending should have been placed at the top of band 2 with some uplift for the additional supplies and unquantified conspiracy, perhaps a year. That would have given a nine year starting point and that starting point should then have been reduced by 20 per cent on account of the guilty plea.

Discussion

[11] In treating this offending as band 3 offending, the Judge has proceeded upon the basis that at least 27 grams of methamphetamine was supplied pursuant to offending charged in the two counts arising out of Operation Moremi. It is common ground that there was no factual foundation for reaching that view. However, as this Court has often said, the issue of whether a sentence is manifestly excessive is to be examined in terms of the sentence passed, rather than the process used in constructing that sentence.[2] In this case the sentence imposed upon the appellant was clearly within the appropriate range.
[12] It is common ground that a starting point of eight years was within the acceptable range for the Operation Leo offending alone. As the Judge said, it was also necessary to consider the totality of the offending, to ensure that the sentence of imprisonment imposed was proportionate to the gravity of the overall offending.[3]An uplift of two years in respect of the representative count of supply and the conspiracy to supply count, was well justified. As these counts reflected, the appellant continued with his commercial supply operation after the termination of Operation Leo. The Operation Moremi interceptions revealed a significant level of activity, and as the Judge noted, a different supplier to the Operation Leo offending, indicative of a commercial operation of some sophistication. In short there was substantial additional criminality involved in this offending which the sentence imposed needed to reflect.

Result

[13] For these reasons we are satisfied that the sentence of eight years imprisonment imposed by the Judge was proportionate to the gravity of the overall offending and was not manifestly excessive. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Fatu [2006] 2 NZLR 72 (CA).
[2] R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].
[3] Sentencing Act 2002, s 85.