Satherley v R [2020] NZCA 171 (20 May 2020)

Last Updated: 3 June 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA659/2019 [2020] NZCA 171

	BETWEEN	DEBORAH MARIE SATHERLEY Appellant
	AND	THE QUEEN Respondent

Hearing:	20 April 2020
Court:	French, Dobson and Nation JJ
Counsel:	D J Matthews and R T Nye-Wood for Appellant S R D D Bicknell Young and B Hawes for Respondent
Judgment:	20 May 2020 at 3 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Nation J)

Introduction

[1] At a trial before a jury in the District Court at Nelson in April 2018, Ms Satherley was found guilty on charges of possessing methamphetamine for supply, possessing cannabis, obstructing a constable and unlawful possession of a restricted weapon.
[2] On 13 June 2018, Judge Tompkins sentenced Ms Satherley to a term of imprisonment of three years and three months.^[1] Ms Satherley now seeks to appeal that sentence.
[3] Ms Satherley filed her appeal on 16 December 2019, over a year out of time. In an affidavit, Ms Satherley explained she understood her trial lawyer, and then another lawyer whom he had arranged to take over the case, would be filing an appeal after she had been sentenced. Later, she applied for legal aid to assist with an appeal. The Public Defence Service was assigned in September 2019. Mr Matthews explained there was then further delay when they were required by Legal Services to review the case and confirm legal aid would be available for an appeal. The Crown did not agree that an extension of time should be granted but acknowledged there had been no prejudice and they had been able to address the appeal on its merits.
[4] The time for the filing of the appeal is accordingly extended.

Background

[5] On 12 December 2016, police executed a search warrant at Ms Satherley’s address. They found approximately 18 grams of methamphetamine divided between several snaplock bags and pill containers. In Ms Satherley’s handbag, the police found a snaplock bag and a further quantity of methamphetamine along with a notebook containing a “ticklist” detailing what appeared to be transactions of $157,925, and references to weights such as “half oz” (that is, ounce). There were two straws used for consuming methamphetamine.
[6] The police also found electronic scales of the sort commonly associated with drug dealing. There were CCTV cameras showing the entrance to the house on televisions at the address.
[7] Located beside the bed was approximately 28 grams of dried cannabis. On a bedside cabinet was a working taser that also incorporated a torch.
[8] When the police entered the address, Ms Satherley attempted to hide an item down the side of a couch. A constable told her to leave that position. The constable restrained Ms Satherley who struggled and had to be handcuffed.
[9] Ms Satherley was on electronically monitored (EM) bail from 25 January 2017 until she was sentenced.
[10] At her trial, Ms Satherley claimed the methamphetamine had been brought to her home by an associate and she had seen the methamphetamine only when the police arrived at the address. She claimed the cannabis belonged to a friend who stayed at her home from time to time.
[11] Under cross-examination, Ms Satherley accepted that the methamphetamine found at her address had a street value of around $21,000. In her notebook, she accepted there was an offer from someone to pay $3,000 on one day and $4,000 some days later. The offer indicated they had $10,000 coming in and were asking if they might acquire more. Ms Satherley accepted the note was evidence of a drug deal but claimed it was not one involving her. She claimed she had the taser only for use as a torch.

District Court sentencing

[12] In sentencing Ms Satherley, Judge Tompkins said:^[2]

The evidence given at trial by the associate, by Ms Satherley, and by Ms Satherley’s daughter, I found to have little connection with reality and to be unconvincing.

[13] Applying R v Fatu, Judge Tomkins arrived at a starting point of four years’ imprisonment for the methamphetamine offending.^[3] He assessed an uplift for previous convictions and the taser charge of three months each, taking the sentence to four years and six months’ imprisonment. He gave Ms Satherley a credit of one year for time spent on EM bail and a further three months’ credit for “compassionate” matters.^[4] Those matters related to the way it was said a terminally ill friend, her teenage daughter, her father with whom she was living at the time of sentencing, and her daughter’s father all needed her support.

Issues

[14] Ms Satherley’s appeal was not filed until after the Court of Appeal released its judgment in Zhang v R on 21 October 2019.^[5] In Zhang v R, this Court stated its judgment was not to apply to sentencing that took place before the release of that judgment if an appeal had not been filed before then.^[6] Consistent with this, counsel argued the issues with due regard to the Court of Appeal’s guideline judgment in R v Fatu and without reference to the way those guidelines were modified in Zhang v R.
[15] For Ms Satherley, Mr Matthews submitted the offending should have been placed at the bottom of band two of R v Fatu. He submitted a starting point of three years and six months would have been appropriate given the quantity of methamphetamine involved, particularly so having regard to starting points adopted in three other cases that had come before the Court of Appeal.^[7]
[16] Mr Matthews also sought to distinguish offending in the cases referred to by the Crown, primarily because of the difference in the amounts involved in those cases or because of the offenders’ more obvious involvement in the supply or dealing in illicit drugs.^[8]
[17] Mr Matthews took no issue with the uplift on account of Ms Satherley’s criminal history and her possession of the taser, or with the 12 month discount for time spent on EM bail. However, he submitted Ms Satherley could have been given an increased discount of six months because of the support she was able to provide to family members, a friend and particularly her teenage daughter.

Analysis

[18] In R v Fatu, the Court of Appeal emphasised that, in cases involving importation and supply, considerations of commerciality may be significant.^[9] In cases involving supply, there was increased culpability where the supply was for gain. Band two was for supply of commercial quantities which the Court considered would be relevant where the quantities involved were from five to 250 grams.^[10]
[19] Ms Satherley was found guilty of possession of methamphetamine for supply. The way in which methamphetamine was found packaged in point bags, the presence of the ticklist in the notebook in her bag, the presence of digital scales and the CCTV cameras were all consistent with the commercial supply of methamphetamine for financial gain. The quantity involved, together with the circumstances of the offending, justified a starting point of four years’ imprisonment in terms of Fatu.
[20] In arguing that the starting point of four years was too high, Mr Matthews referred to Duncan v R.^[11] In that case, the primary issue on the sentence appeal was whether or not, in the circumstances of the case, there should have been evidence as to the purity of the methamphetamine before the bands in Fatu were applied. But for that, there was no challenge to the sentencing Judge having adopted a starting point of three years and three months where the offender had been found guilty of possession of methamphetamine for supply. The police had intercepted the vehicle he was driving. In it, they found a bag containing $3,000 in cash and two black boxes. In one of the boxes was an electronic set of scales, a spoon, some broken glass and two plastic ziplock bags containing crystals. The Court held, on the evidence, there was “no real scope for doubt about the market grade purity of the methamphetamine” so that the quantity involved in the offending did not have to be reduced by reason of its lesser purity.^[12] With the Court’s decision on the purity issue, the amount involved was nine grams. In the other box were 12 empty point bags, 13 small plastic ziplock bags and two glass pipes.
[21] Mr Matthews also referred to Mills v R.^[13] Mr Mills had been found with a fully loaded .22 semi-automatic rifle together with ammunition, a set of electronic scales, cash of some $12,265 and six snaplock bags and a plastic container containing 29.4 grams of methamphetamine. The Court of Appeal concluded that four and a half years’ imprisonment would have been an appropriate provisional starting point, with an uplift of 18 months to reflect the aggravating features of the offending, primarily the associated firearms offending, so that the appropriate total starting point would have been six years’ imprisonment.^[14]
[22] In Reid v R, the sentencing Judge adopted a starting point of five years for possession for supply of 27.67 grams of methamphetamine on one occasion and 15 grams on another occasion, and for possession of pipes.^[15] On the first occasion, he had also been found with scales, snaplock bags, glass pipes and cash. The Court of Appeal considered the five year starting point was within range although “at the upper extremity of [the Judge’s] discretion”.^[16]
[23] In R v Turner, the Court of Appeal upheld a sentence imposed after Ms Turner had been found guilty at trial of nine drug-related and firearms charges.^[17] The lead offence had been possession of methamphetamine for supply for which the Judge adopted a starting point of three years’ imprisonment. For the totality of her offending, the Judge had been satisfied the appropriate starting point was five years’ imprisonment, but he gave a discount for personal mitigating factors of 10 months to bring the end sentence back to four years and two months. The mitigating circumstances included the potential effect on her child of being separated from his mother.^[18] The Court of Appeal said the context, digital scales, presence of $5,000 in cash, supply of empty point bags and other drug paraphernalia, and the surveillance and scanning equipment all indicated that the appellant “ran a reasonably sophisticated retail operation”.^[19] The Court of Appeal said this fully justified the selection of the three year starting point. That was however for possession of methamphetamine where the amount involved was only three grams, bringing the offending within band one in R v Fatu.
[24] The cases referred to by the Crown included Gush v R.^[20] Found at the defendant’s home were several snaplock bags containing 11.3 grams of approximately 50 per cent pure methamphetamine. Also found were point bags, electronic scales and $5,530 in cash. A CCTV camera was at the property. The Court of Appeal endorsed a starting point of three years and nine months’ imprisonment for the possession for supply of the 5.65 grams of methamphetamine with a commercial aspect.^[21]
[25] In Carroll v R, the defendant had 7.87 grams of methamphetamine packaged in point bags, four mobile phones with messages implying drug dealing, 143 grams of cannabis, and other paraphernalia.^[22] The Court of Appeal held a starting point of four years’ imprisonment was “[i]n no way ... excessive. On the contrary, we regard it as exactly right”.^[23]
[26] In Daniels v R, the defendant dealt 13 grams of methamphetamine (across seven occasions) and repeatedly offered to supply that drug.^[24] The Court of Appeal upheld a four year starting point, noting that Mr Daniels was an “active street dealer”.^[25]
[27] The cases referred to by both the appellant and the Crown show the starting point adopted by the Judge for Ms Satherley’s methamphetamine offending was within range, having regard to the way the guidelines in R v Fatu had been applied in the cases they refer to. That starting point also accords with the principles referred to by the Court of Appeal in R v Fatu itself.
[28] Ms Satherley was 47 at the time of the offending and 48 when she was sentenced. In 2005 she received a sentence of community work for possession of methamphetamine. In 2011, she was sentenced to six months’ community detention for several offences including possession of cannabis. In 2012, she received a sentence of home detention for various drug offences including possession of utensils for the use of methamphetamine. She was sentenced on 22 January 2013 to two years’ imprisonment for offending during 2011 in dealing in ecstasy, methamphetamine and amphetamine, and offering to supply a class C drug — cannabis — and a class B drug — Ritalin.
[29] A report provided to the Court from the addiction service at Nelson Hospital, dated 18 April 2018, referred to Ms Satherley having a history of substance-related offending. The report noted she had denied using methamphetamine since 2012 but referred to a urine drug screen from 2016 having detected that substance, and to her failing to undergo tests which would have given a more accurate assessment of her substance abuse as at April 2018.
[30] In the Department of Corrections’ advice to the Court for sentencing, Ms Satherley’s risk of reoffending was assessed as high. The Department noted that she continued to minimise her involvement in the offending and to apportion blame to others. The Department was concerned that rehabilitative sentences would be futile unless she was genuine in wanting to address the causes of her offending. The Court agrees with the Department’s assessment as to the risk of reoffending and the concern just referred to.
[31] All this meant that, in determining the length of sentence, the emphasis had to be on holding Ms Satherley accountable for her offending and on deterring her and others from involvement in future offending.
[32] The uplifts for Ms Satherley’s previous offending and possession of the taser were modest. The Court of Appeal has noted previously that the possession of firearms in association with drug offending is a significantly aggravating feature of that offending.^[26] A taser is not as dangerous as a firearm but, nevertheless, possession of such an item, which could be used to either threaten or hurt someone, was a significantly aggravating feature of the offending.
[33] There is no precise formula by which the credit for time spent on EM bail is to be calculated. For 18 months Ms Satherley was subject to a 24-hour curfew and had to reside at her father’s address but was permitted to leave the address for various reasons personally important to her. She was not in employment so did not need to leave the address for work. At sentencing, information was put before the Court to show that, while living at her father’s address, she had sought to obtain an income from restoring and selling furniture. We agree with the Crown’s submission that the credit of 12 months for the time Ms Satherley was on EM bail could be considered generous.
[34] Through living at her father’s address while on EM bail, Ms Satherley had been able to support her father, although his health needs had not required such assistance before she was on EM bail. The sentencing Judge had a letter from a doctor indicating he would be supportive of Ms Satherley being available to help a friend of hers, who was a patient of the doctor and suffering from terminal cancer, but he noted that patient also had the support of “a very supportive daughter”.
[35] Ms Satherley ought to have known that her involvement with methamphetamine would put her at risk of being unable to care for her daughter in the way she contended on sentencing that her daughter needed. She had been unable to provide that support for her daughter when serving her earlier prison sentence.
[36] It is open to a sentencing Judge, when appropriate, to consider the impact a sentence may have on an offender’s family and make some adjustment.^[27] Accordingly, there was no error in the Judge allowing Ms Satherley a credit of three months on compassionate grounds.
[37] Taking all matters into account, we have not been persuaded that the starting point adopted for the methamphetamine offending was in error or that the ultimate sentence was manifestly excessive.

Result

[38] The application for an extension of time is granted.
[39] The appeal is dismissed.

Solicitors:
Public Defence Service, Christchurch for Appellant
Crown Solicitor, Christchurch for Respondent

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^[1] R v Satherley [2018] NZDC 11785.

^[2] At [11].

^[3] At [13] citing R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

^[4] At [14].

^[5] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

^[6] At [188]–[191].

^[7] Duncan v R [2018] NZCA 108; Mills v R [2016] NZCA 245; Reid v R [2013] NZCA 89; and R v Turner [2009] NZCA 389.

^[8] Carroll v R [2012] NZCA 328; and Daniels v R [2018] NZCA 62.

^[9] R v Fatu, above n 3, at [32].

^[10] At [34].

^[11] Duncan v R, above n 7.

^[12] At [23].

^[13] Mills v R, above n 7.

^[14] At [22].

^[15] Reid v R, above n 7, at [1].

^[16] At [14].

^[17] R v Turner, above n 7.

^[18] At [7]–[12].

^[19] At [14].

^[20] Gush v R [2016] NZCA 438.

^[21] At [36].

^[22] Carroll v R, above n 8.

^[23] At [14].

^[24] Daniels v R, above n 8.

^[25] At [15].

^[26] See for example Mills v R, above n 7, at [18]; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [40]; and Haggie v R [2011] NZCA 221 at [23].

^[27] Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163 at [42]; and R v Harlen [2001] NZCA 130; [2001] 18 CRNZ 582 (CA) at [22].