Wood v R [2014] NZCA 183 (15 May 2014)

Last Updated: 22 May 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA689/2013 [2014] NZCA 183
BETWEEN	KIERAN WOOD Appellant
AND	THE QUEEN Respondent

Hearing:	2 April 2014
Court:	Randerson, Keane & Andrews JJ
Counsel:	I Jayanandan for Appellant J M O’Sullivan for Respondent
Judgment:	15 May 2014 at 12:30 pm

JUDGMENT OF THE COURT

Appeal against sentence dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

[1] In July 2013, Kieran Wood was found guilty at trial in the Manukau District Court, of 19 sales between 17 February – 10 March 2011 of the class C drug, methylone, an analogue of MDMA (ecstasy), and of possessing it for supply on 10 March 2011. He was sentenced to imprisonment for two years, five months.^[1]
[2] Mr Wood appeals his sentence first on the ground that the scale of his 19 sales offences (the quantity of tablets he sold) was a disputed aggravating fact on sentence as to which the trial Judge, Judge Blackie, could not be satisfied beyond reasonable doubt. The focus of the evidence at trial was on the elements of his offences, not their scale, and at trial Crown counsel emphasised that to the jury. Nor was the scale of those 19 offences established beyond reasonable doubt at a disputed facts hearing.
[3] Mr Wood appeals his sentence on two other grounds, which are interrelated, the first of which is that the Judge took too high a starting point, three years, three months, compared with that taken in comparable cases. His offences, at age 21, lay in supplying party pills over three months on a small scale.
[4] Mr Wood then contends, therefore, that his offending at most warranted a shortterm sentence of imprisonment, and that in imprisoning him the Judge erred in principle. The least restrictive outcome principle, he contends, required the Judge to impose on him a sentence of home detention.

Offences

[5] On 10 March 2011, relying on information from two informants, the police executed a search warrant at Mr Wood’s parents’ address. In his bedroom they found 47 methylone tablets, the subject of his possession offence as to which there is no issue on this appeal, and $3,000 cash.
[6] The police also obtained by warrant access to Mr Wood’s cellphone data and that search elicited several hundred text messages consistent, on the Crown case, with sustained commercial dealing commencing in January 2011.
[7] Each of the 29 sale counts in the indictment rested on a transaction, particular to the count. The jury found Mr Wood not guilty of 10 of those offences, and guilty of 19. According to the particulars relating to those 19 counts Mr Wood sold 427 tablets between 17 February and 10 March 2011.

Sentence under appeal

[8] In his remarks on sentence the Judge said that Mr Wood had been involved in retail supply in an “elaborate” and sophisticated” way.^[2] He had been at the centre of a “substantial retail trade” in which he controlled the price of the drugs, which ranged up to $40 in some instances where one or two pills were purchased, and down to $26-$27 where there were multiple purchases.^[3]
[9] The Judge said that when the 47 pills found in Mr Wood’s bedroom, the subject of his possession offence, were combined with those the subject of his 19 sales offences, he had sold or had for sale 474 pills. But, the Judge said also, these offences were “just a window”:^[4]

We will never be able to put a precise value on the amount which you traded because ... the prices varied but the fact that you had in your possession and available for sale at your disposal 474 pills would indicate that the overall value would be in the tens of thousands of dollars. By that I mean perhaps between $10,000 and $20,000, perhaps $25,000.

[10] The Judge held that although Mr Wood had since trial expressed remorse, he had not pleaded to his offences. He knew what he was doing and that it was against the law. He knew he was at risk, if caught, of being sentenced to imprisonment.
[11] The Judge rated Mr Wood a commercial dealer within Band 2 of R v Terewi,^[5] which attracts starting points within the range of two-four years imprisonment. He also referred to R v Fraserin which this Court held that methylone, bk-MDMA, is a more serious Class C drug than cannabis.^[6] He took a starting point of three years, three months’ imprisonment.
[12] The Judge accepted the submission for Mr Wood that, while Terewi called for a deterrent sentence to which personal circumstances were secondary, the High Court had on sentence allowed drug dealers significant discounts. But, he said, those offenders had pleaded early. At most Mr Wood was entitled to “some reduction” for the fact that he was a young man, who had made a very serious error of judgment.^[7]
[13] The Judge noted that Mr Wood had used drugs since the age of 15. He accepted that Mr Wood might have been drawn into selling party pills as a result. He gave Mr Wood credit for a positive pre-sentence report and for being in work on the ski fields. He noted that Mr Wood had a very supportive family, as we have found on this appeal. On that basis, he discounted Mr Wood’s sentence by 25 per cent.
[14] As well as imposing the sentence under appeal the Judge made an order forfeiting two-thirds of the $3,000 cash found in Mr Wood’s bedroom. He recognised that Mr Wood’s father might have an interest in the balance.

Disputed scale of offending

[15] Mr Wood’s first ground of appeal, that the Judge could not be satisfied beyond reasonable doubt as to the scale of this offence, a disputed aggravating fact for the purpose of s 24 of the Sentencing Act 2002, hinges on what was put in issue on sentence.
[16] Section 24 contemplates that where the scale of drug offending is in issue there may need to be a dedicated hearing prior to sentence at which the Crown may need to establish that as an aggravating fact, or negate the defence estimate, where advanced as a mitigating fact. In each case the standard of proof is beyond reasonable doubt.^[8]
[17] Such a hearing, however, as this Court said in R v Aram, will normally only be needed after a guilty plea has been entered. After trial such hearings are “rarely necessary”, especially where the trial Judge is to impose sentence, as is almost invariable:^[9]

In those situations, it is for the sentencing judge to make up his or her mind as to the facts based on what he or she considers was proved at the trial: see s 24(1)(a).

[18] In this case, on sentence, Crown counsel invited the Judge to sentence Mr Wood on the basis that, according to the particulars in the indictment, he had sold at least 427 tablets on 19 separate occasions; and that on the day of the search he possessed 47 more tablets for the purpose of sale.
[19] Crown counsel acknowledged that, in his closing address to the jury, he had stressed that the jury needed only to be satisfied beyond reasonable doubt about the elements of the sales offences, not about their particulars. But, he submitted, the Judge was entitled to make his own findings. In this he relied on the Judge’s ability to “accept as proved any fact that was disclosed by evidence”.^[10]
[20] On sentence there was no suggestion in the submissions made for Mr Wood, which we have reviewed, that he disputed the Judge’s right to make that independent finding on the trial evidence, or that he contended for a disputed fact hearing before sentence was imposed.
[21] Moreover, given the nature of the indictment and the evidence, in large part the intercepted text traffic, the Judge was fully entitled, in our view, to assess the scale of Mr Wood’s offending solely on the trial evidence.
[22] The indictment was highly specific as to the basis for each count. Each count relied on an identified intercepted text message exchange that gave rise to the transaction the Crown contended for. Each identified the person to whom Mr Wood had sold at least by first name; and most specified the number of tablets sold. Unless the jury were satisfied as to the transaction identified, it had no basis on which to find Mr Wood guilty of the count.
[23] The jury was clearly aware that each count rested on the underlying transaction identified. It found, for instance, Mr Wood not guilty of three sales on 11 February 2011 involving seven pink “mercs”; guilty of three sales on 17 February 2011 but not guilty of one; guilty of one sale on 25 February 2011 but not guilty of two; and guilty of two sales on 3 March 2011 but not guilty of two.
[24] On sentence, we consider, the Judge was fully entitled to hold Mr Wood accountable for the aggregate of the tablets set out in the 19 sale counts, 427 tablets. That was a finding of fact open to him to make on the trial evidence. It was also consistent with the verdict of the jury.

Starting point and least restrictive outcome

[25] Mr Wood’s two remaining grounds of appeal are, as we have said, interrelated. He first contends that the three year, three month starting point the Judge took was too high, when compared with other cases, for what he contends was a small-scale supply of party pills made within a three month span. Therefore, he contends, he qualified at most for a shortterm sentence of imprisonment and, on the least restrictive outcome principle, home detention.
[26] Mr Wood contends that there is no tariff case governing the sale of party pills. Terewi related to cannabis supplies or sales and, in any event, the three categories of offending it identifies for the purpose of sentence are guidelines only. Category two offending may still warrant a starting point below two years “where sales are infrequent and of a very limited extent”.^[11]
[27] As the Crown contends, however, in Fraser v R, which did involve party pills, this Court rated such pills a more serious class C drug than cannabis, and also held that Terewi is still a useful reference point.^[12] There, the appellant imported $21,600 worth of methylone and this Court considered the three year starting point there taken was “about right” and certainly not excessive.^[13]
[28] Against that measure, and despite the sentencing decisions in the High Court to which the Judge was referred, we consider that his three year, three month, starting point, though high, was open to him in principle.
[29] Mr Wood’s 19 offences, when combined with his possession offence, make him accountable for 474 tablets sold or ready to sell, at prices between $26 – $40. If sold at $26 a tablet his return would have been $12,324. If sold at $40 a tablet, $18,960. The fact that the Judge held this offending part of a larger pattern may explain his higher estimate, $25,000. By any measure this was not negligible offending.
[30] The 25.6 per cent discount for personal circumstances the Judge then gave Mr Wood was generous. Mr Wood has previous convictions albeit of a different character. At 21, when he offended, he was a young adult and there was nothing out of the ordinary in his life to account for his offending or make it less blameworthy. This discount could indeed, as the Crown says, be seen as an expression of the least restrictive outcome principle.
[31] In the result, Mr Wood’s sentence reduced to that imposed, imprisonment for two years, five months. That sentence stands higher than a short-term sentence of imprisonment and the Judge had no occasion to consider whether, on the least restrictive outcome principle, to impose instead a sentence of home detention. That alternative sentence was not open in law.

Conclusion

[32] We conclude that the Judge was right to sentence Mr Wood for selling party pills on a commercial scale within category two, Terewi; that his starting point was open to him in principle; and that, in the sentence he imposed, he did not offend the least restrictive outcome principle. We dismiss Mr Wood’s appeal.

Solicitors:
Tompkins Wake, Hamilton for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Wood DC Manukau CRI-2011-092-5888, 20 September 2013.

^[2] At [8].

^[3] At [7].

^[4] At [8].

^[5] R v Terewi [1999] 3 NZLR 62 (CA) at [4].

^[6] Fraser v R [2013] NZCA 250 at [14].

^[7] At [14].

^[8] Sentencing Act 2002, s 24(2)(c).

^[9] R v Aram [2007] NZCA 328 at [71]; Baird v R [2012] NZCA 430 at [46]–[51].

^[10] Sentencing Act 2002, s 24(1)(a).

^[11] R v Baker HC Wellington CRI-2005-485-157, 21 February 2006 at [13].

^[12] Fraser v R, above n 6, at [12] and [14].

^[13] At [14].