Fraser v R [2013] NZCA 250 (21 June 2013)

Last Updated: 26 June 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA211/2013 [2013] NZCA 250
BETWEEN	JUSTIN ALEXANDER FRASER Appellant
AND	THE QUEEN Respondent

Hearing:	17 June 2013
Court:	Wild, MacKenzie and Miller JJ
Counsel:	D G Slater for Appellant P D Marshall for Respondent
Judgment:	21 June 2013 at 10 am

JUDGMENT OF THE COURT

The appeal, which is against sentence, is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] Mr Fraser appeals against a sentence of two years imprisonment imposed by Judge Crosbie in the District Court at Invercargill.^[1] Following a sentencing indication, Mr Fraser pleaded guilty to two charges of importing the Class C controlled drug bk-MDMA and one charge of possessing that drug for sale.
[2] There are two grounds of appeal. First, that the Judge’s sentencing starting point of three years imprisonment was manifestly excessive, and should have been no more than two years. Secondly, that the Judge was wrong not to impose a sentence of home detention.

Facts

[3] Customs intercepted a package addressed to Mr Fraser at his home address in Invercargill. Testing revealed that it contained 260 grams of bk-MDMA.
[4] Following execution of a search warrant, Mr Fraser admitted to the Customs Officers that he had imported the drugs, sourcing them on the Internet. He said he had paid $600 for them. In the course of searching Mr Fraser’s home, the Customs Officers found further drugs. Mr Fraser then admitted he had imported a first quantity of bk-MDMA about six—eight months earlier.
[5] Mr Fraser said he used some of the drugs himself but sold some of them to friends. The total street value of the two importations of drugs was approximately $21,600.

Sentencing starting point

[6] In taking a starting point of three years imprisonment, Judge Crosbie acknowledged that Mr Fraser’s case “was not on all fours” with any sentencing precedent available to him. He drew a comparison with the five year starting point approved by this Court in Qiu,^[2] and also adopted by Venning J in Jethwa.^[3]
[7] Mr Slater questioned whether this case had any comparability with Qiu and Jethwa. As to Qiu, Mr Slater pointed out that it involved importation from China of 4.78 kilograms of pseudoephedrine based medicine (ContacNT capsules). Given that the pseudoephedrine could be converted into between 0.92 and 1.38 kilograms of methamphetamine, the imported pseudoephedrine had a street value of between $923,000 and $1.38 million.
[8] Jethwa involved importing and selling the Class C controlled drugs 4–MEC and MDPV. They were sourced through drug supply websites and imported in packages using false identities. The drugs were then pressed into pills and on-sold to customers. At the peak of the operation Mr Jethwa and his co-offender were selling $55,000 worth of pills a week. $178,655 cash was seized by the police from Mr Jethwa’s address, his half share of the profits from the importation and sale of the drugs.
[9] While we readily accept that the overall offending in Qiu and Jethwa was considerably more serious than that here, Mr Slater’s submission rather overlooks the limited role of the appellants Mr Qiu and Mr Jethwa, as opposed to that of Mr Fraser. Mr Qiu, aged 20 and with no previous convictions, was paid $1,000 to recruit people to accept delivery of the 20,528 ContacNT capsules imported. This Court accepted that he had not formulated the plan to import the capsules, had not sourced them, and was not going to receive the proceeds from their sale. Similarly, Mr Jethwa was a 24 year old with no previous convictions. While he had been involved in the preparation and manufacture of the pills, the sentencing Judge accepted he was “doing so in large part at [the] direction” of his co-offender who was “a much older man”.^[4]
[10] By contrast, Judge Crosbie accepted the Crown’s description of Mr Fraser as “a one-man band” who had formulated his own plan to import, sourced the drugs, and was going to and did receive the proceeds of selling some of them.^[5]
[11] Mr Marshall submitted that this Court’s decision in R v Chun involved more closely analogous offending.^[6] Mr Chun was a flight attendant. He was recruited to carry packages into New Zealand. He arranged for another flight attendant to bring into New Zealand in her suitcase a package containing Sudafed tablets containing 180.3 grams of pseudoephedrine. Although the sentencing Judge had described Mr Chun as “a very low level operator in what was quite a well organised ring”,^[7] this Court observed that he was no “innocent mule”.^[8] The offending was clearly premeditated and planned. This Court upheld the Judge’s sentencing starting point of three years imprisonment, his end sentence of two years imprisonment, and the Judge’s rejection of home detention because of the need for the sentence to reflect the principles of denunciation and deterrence.
[12] In the absence of a guideline judgment for offending of the present nature, or a settled line of appellate authority, we agree with both counsel that R v Terewi^[9] provides a useful reference point. Counsel agreed that Mr Fraser’s offending could be treated as akin to small scale cannabis cultivation for commercial purposes, and thus placed in category 2 in Terewi, with a sentencing starting point in the range of two–four years imprisonment.
[13] On a Terewi approach, Mr Slater contended that a starting point at the bottom of category 2 – no more than two years imprisonment – was appropriate, given that Mr Fraser had imported the drugs primarily for his own use and made only limited sales. On the other hand, Mr Marshall contended that the Judge’s starting point of three years imprisonment was unassailable. He pointed to this Court’s recent decision in Tomars v R,^[10] where this Court approved a starting point of three years imprisonment for a relatively low level but nevertheless persistent cannabis dealer, who had not cultivated cannabis. Mr Marshall pointed out that Mr Fraser was an importer as well as a dealer, and reminded us that this Court in R v Fatu had emphasised that importers will usually be more culpable than drug dealers.^[11]
[14] We do not accept Mr Slater’s submission that Mr Fraser’s offending is at the bottom of Terewi category 2. We regard the bk-MDMA Mr Fraser imported as a more serious Class C drug than cannabis. It is sometimes known as methylone and is an analogue of MDMA (Ecstasy). Having considered the opposing submissions, and the cases referred to, we consider the Judge’s three years imprisonment starting point was about right. Certainly, we are unable to view it as manifestly excessive. This first ground of appeal accordingly fails.

Home detention

[15] Judge Crosbie took the view that the principles of deterrence and denunciation, particularly deterrence, would not be met by a sentence of home detention. The Judge’s sentencing remarks indicate that he was unimpressed by the fact that Mr Fraser, who had been remanded on bail for the eight months preceding sentence, had done nothing toward rehabilitating himself, and overcoming his addiction to Ecstasy. He described Mr Fraser’s indication on sentence that he was anxious to do something about his drug addiction as “too little, too late”.^[12]
[16] Mr Slater explained to us that Mr Fraser had only become aware of the need – or at least the desirability – of taking some rehabilitative steps when interviewed by the probation officer for the pre-sentence report. We note that report is dated 3 April 2013, exactly a week before sentencing. We regard that explanation as lame and unconvincing.
[17] On a more positive note, Mr Slater told us that Mr Fraser had made contact with a drug rehabilitation organisation since he was imprisoned, and handed us an exchange of correspondence about this. He also advised us that his instructions were that Mr Fraser had gone “cold turkey” on drugs since his remand on bail, but we have not been provided with anything to substantiate that.
[18] Judge Crosbie was entitled to be unimpressed by the fact that Mr Fraser had done nothing for months to try and come to grips with his addiction to Ecstasy. The prospects of rehabilitation were the very factor that persuaded Venning J in Jethwa to impose home detention (as well as 300 hours of community work). Venning J said:

[29] I also consider an overriding factor, which supports home detention in your case, is your rehabilitation and re-integration into the community. You are a young man and there is no reason for you to be back before this Court again.

[19] Even where this Court has considered the offender a suitable candidate for

[19]

home detention, it has dismissed an appeal where it has considered that “home detention was not an appropriate penalty given the underlying seriousness of the criminal conduct”: R v Yin.^[13] Mr Yin was 18. He had come to New Zealand from China to learn English and study at university. The sentencing Judge had personal references indicating that Mr Yin was naive, not streetwise and probably susceptible to the influence of others. He was also living away from the support and influence of his parents at the time of the offending. The obstacle for Mr Yin was that he had become involved in the importation of approximately five kilograms of ContacNT pseudoephedrine capsules – enough to yield between .76 and 1.15 kilograms of methamphetamine, with a potential street value in the range $765,000 to $1.15 million.

[20] As this Court has previously pointed out,^[14] an appeal against a Judge’s refusal to impose home detention rather than a short-term sentence of imprisonment is an appeal against the exercise of a “fettered discretion” – a discretion constrained by the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002. There is nothing in the Sentencing Act suggesting a presumption for or against imposing home detention rather than imprisonment, only the sentencing principle that the Court must impose the least restrictive outcome appropriate in the circumstances.^[15] Further, this Court has made it clear that an appeal against a refusal to grant home detention is not an opportunity to review or revisit the merits. What the appellant must do is demonstrate an error by the Judge in exercising his sentencing discretion.^[16]
[21] Mr Slater was not able to point to any error in the Judge’s approach. Rather, he submitted that as home detention was an available sentencing option, it “should have been imposed ... in the appellant’s case”. We have already made the point that there is no presumption in favour of home detention. Moreover, as this Court has observed, the closer the appropriate prison sentence is to the two year threshold, the more likely it is that home detention will be an inappropriate sentence.^[17]
[22] As no error has been demonstrated in the way the Judge exercised his sentencing discretion to decline to commute the sentence to home detention, this second ground of appeal also fails.

Result

[23] As neither ground of appeal succeeds the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Fraser DC Invercargill CRI-2012-025-2128, 10 April 2013.

^[2] R v Qiu CA202/06, 17 October 2006.

^[3] R v Jethwa [2012] NZHC 2440.

^[4] At [22].

^[5] At [6].

^[6] R v Chun [2008] NZCA 354.

^[7] Quoted at [27].

^[8] At [26](f).

^[9] R v Terewi [1999] 3 NZLR 62 (CA).

^[10] Tomars v R [2013] NZCA 54.

^[11] R v Fatu [2006] 2 NZLR 72 (CA) at [22].

^[12] At [19].

^[13] R v Yin [2008] NZCA 257 at [24].

^[14] Manikpersadh v R [2011] NZCA 452 at [10]–[12], citing Orsman v R [2010] NZCA 199 and William Young P’s dissenting judgment in R v Vhavha [2009] NZCA 588 at [29] and [45].

^[15] Sentencing Act 2002, s 8(g).

^[16] James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].

^[17] Manikpersadh v R, above n 14, at [22]. The Court cited R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 and Garnett v R [2010] NZCA 173 for that proposition. We note that in those cases the appellants were subject to the transitional provision in s 15 of the Sentencing Amendment Act 2007, which meant there was still jurisdiction to impose a sentence of home detention even though the sentence which would otherwise apply was over two years imprisonment. What they held was that the higher the prison sentence would have been over two years, the less likely it was that home detention would be an appropriate alternative sentence.