|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 17 June 2020
|
|
|
|
BETWEEN |
GEOFFREY WAYNE SMITH Applicant |
|
|
AND |
THE QUEEN Respondent |
|
Hearing: |
14 May 2020 |
|
Court: |
Kós P, Venning and Dobson JJ |
|
Counsel: |
M N Pecotic for Applicant Z A Fuhr for Respondent |
|
Judgment: |
8 June 2020 at 10 am |
JUDGMENT OF THE COURT
The
application for an extension of time to appeal is
declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
[1] Mr Smith was the wholesale level supplier of at least 15 kilograms of methamphetamine to a Mongrel Mob distribution network in the Wellington region. A few weeks prior to trial Mr Smith pleaded guilty to the following charges: methamphetamine supply (x 2);[1] methamphetamine supply (representative);[2] possession of methamphetamine;[3] and unlawful possession of a firearm and unlawful possession of ammunition.[4] Collins J sentenced him to 13 years and six months’ imprisonment on the methamphetamine supply charges. A minimum period of imprisonment of 50 per cent, or six years and nine months, was imposed.[5]
[2] Mr Smith now seeks to appeal his sentence on the basis that it was manifestly excessive. He submits the starting point was too high and that insufficient discounts were applied for his personal circumstances and for his guilty pleas. He also contends that a minimum period of imprisonment is not justified in his case.
Extension of time
[3] The proposed appeal being filed 237 days out of time, leave is required for an extension of time. The question is whether it is in the interests of justice, taking into account all relevant circumstances, to grant the extension.[6] Two questions arise: first, why the proposed appeal was filed so late and, secondly, whether it has merit. For the Crown Ms Fuhr very properly accepts that, in reality, the second question will be determinative of the interests of justice and, therefore, the application for leave.
[4] As to the first question, the reason for the delay, no affidavit was filed by Mr Smith. In R v Lee, this Court said “[a] long delay is a major factor weighing against leave being granted and, if unexplained, would usually be decisive.”[7] The absence of affidavit evidence is most unsatisfactory, although Ms Pecotic (for Mr Smith) gamely takes the blame. However her efforts to explain the delay in the absence of an affidavit were lame. Mr Smith is plainly a capable individual and the delay is left unexplained. However, for the reason given at [3] we put all that to one side. Whether the application for an extension of time to appeal should be granted depends on the merits of the proposed appeal. To those we now turn.
Background
[5] Two senior Porirua Mongrel Mob members, Messrs Blance and Berkland made substantial sales of methamphetamine at wholesale to others who would, either directly or indirectly, on-sell to those consuming the drug. They also sold to consumers, and in particular Mr Berkland had his own side-line in retail sales to consumers. A Mr Han (in conjunction with a Mr Ou) was the manufacturer.[8] They operated a clandestine drug laboratory in Auckland, extracting methamphetamine from imported cosmetic items. Mr Smith was the manufacturer’s broker and courier. Messrs Blance and Berkland in Wellington, and Han and Ou in Auckland, had no contact with each other at all. Mr Smith would call Mr Blance to enquire whether he required further supply. If he did, Mr Smith would obtain product from Mr Han and drive it down to Wellington. It appears that Mr Han continued to own the methamphetamine until it was delivered to Messrs Blance and Berkland and paid for, so that Mr Smith was selling it on his behalf and then accounting to Mr Han for the sale price, less his fee.
[6] Between October 2016 and April 2017, a period of six months, Mr Smith supplied at least 15 kilograms of methamphetamine to Messrs Blance and Berkland. They paid approximately $350,000 per kilogram, or a total of $5,250,000. Exactly what reward Mr Smith received is imprecise on the evidence. He self-reported that he was paid $20,000 each time plus an ounce of methamphetamine. However, an intercepted communication from Mr Blance indicated that Mr Smith made $50,000 to $60,000 per kilogram, which would have amounted to some $900,000. The latter communication is contained in the summary of facts, and no disputed facts hearing took place. Substantial assets in Mr Smith’s possession including two properties, two utility vehicles, a Mercedes Benz, a Chevrolet Corvette, a 34 foot launch, a jet ski and trailer, a flat deck commercial towing truck and a bobcat digger remain the subject of disputed proceeds of crime proceedings.
Sentencing stage one: starting point
[7] The Judge adopted a starting point of 17 years’ imprisonment in respect of the methamphetamine charges. He concluded that Mr Smith was less culpable than Mr Blance (18-year starting point),[9] but more culpable than Mr Berkland (16‑year‑and-six month starting point).[10] Mr Berkland was assistant to Mr Blance; Mr Blance “answered to no one”. Mr Smith answered to Mr Han, yet described himself as Mr Han’s “partner”. The Judge found that Mr Smith was “almost solely responsible for the offending” for which he was being sentenced.[11]
[8] The Judge then uplifted the methamphetamine offending starting point by six months for the firearms charges.[12]
Submissions
[9] Ms Pecotic submits that although the quantity of methamphetamine is well within band five (being more than seven times the entry point to band five under this Court’s recent Zhang v R decision), it is not “at the upper echelon” of methamphetamine charges before the Court.[13] Such amounts are routinely dealt with in the District, rather than High, Court.
[10] In terms of the role analysis required by Zhang, and whether Mr Smith is a “lesser”, “significant” or “leading” player,[14] Ms Pecotic submits he falls primarily into the “lesser” category with some elements of “significant” and “leading”. He was a supplier to Mr Blance but was more in the nature of a “courier” or “conduit”. Ms Pecotic submits that the Judge wrongly elevated Mr Smith’s role in the offending and that he should be regarded as having a lesser measure of role-based culpability than Messrs Blance and Berkland. A starting point lower than theirs should have been adopted.
[11] Ms Pecotic submits a starting point of around 14 years’ imprisonment would have been appropriate. She accepts the uplift of six months for the firearm offending was appropriate.
Discussion
[12] In Zhang this Court revised the R v Fatu sentencing guidelines for methamphetamine offending.[15] This prospective appeal was filed before Zhang was delivered and it is accepted that the revised guidelines apply here.[16]
[13] The quantity concerned, at 15 kilograms, is very substantial. At the time of sentencing it was the largest quantity of methamphetamine involved in a supply case in Wellington.[17] The quantum is just short of that in the case of Mr Zhang in the Zhang guideline decision (17.9 kilograms, 15-year starting point),[18] and is greater than the quantities dealt with by Mr Thompson in the same decision (6.8 kilograms, 18-year starting point).[19] The starting point differences are explicable on the basis of differing role‑related culpability which we are about to turn to. The quantity Mr Smith dealt with is of course identical in amount to his co-offender Mr Berkland, whose appeal this Court considered earlier this month.[20] In that appeal we considered Mr Berkland to be “plainly in the ‘significant’ category” and declined to alter the 16‑year‑and‑six month starting point adopted in the High Court.[21] We also suggested the 18-year starting point adopted for Mr Blance appeared too low.[22]
[14] We accept Ms Fuhr’s submission that Mr Smith played a critical role near the top of the supply chain in a large-scale commercial operation. We think she characterises the matter correctly by saying he “played a leading role in his part of the supply chain”. What is distinctive about the supply chain in this case, as we have noted, is that it was effectively siloed, with Mr Smith undertaking the wholesale role, albeit at the behest of Mr Han and without himself acquiring title to the goods. A distinctive feature in assessing Mr Smith’s culpability is that he was autonomous within his component of the supply chain, thereby enabling the manufacturer and wholesaler to be distanced without each having to contact or know the identity of the other. It is true that Messrs Blance, Berkland and Han were probably better rewarded for their part in the chain, but they did more and took more risk. The character of this chain is more in the nature of a joint venture with a highly rewarded middleman wholesaler position occupied by Mr Smith. The fact that he did not himself own the methamphetamine is however a factor mitigating culpability relative to Messrs Blance and Han.
[15] All of the indicia of “significant” involvement in the table of analysis in Zhang are met.[23] There are elements of a “leading” role in Mr Smith’s close links to the original source and expectation of substantial financial gain. Although Mr Smith’s addiction encouraged his offending, it was not a dominating motivation, unlike financial reward, and does not justify reduction in assessed culpability.
[16] We conclude that Mr Smith should be regarded at the upper end of a significant role in this band five offending. In this respect we distinguish Mr Smith’s position from that of Mr Zhang in the Zhang guideline decision. Although the quantities are similar, Mr Zhang’s role was at the lower rather than upper end of the significant scale. He was far less senior and he performed his responsibilities under instruction from those who occupied a leading role in the organisation.[24]
[17] In common with the Judge we consider Mr Smith’s culpability lies between that of his co-offenders Messrs Blance and Berkland. Accordingly, and in light of our decision in Mr Berkland’s appeal, we do not think the Judge erred in setting a starting point of 17 years’ imprisonment for Mr Smith’s offending, uplifted by six months for the firearms charges.
Sentencing stage two: personal considerations of the offender
[18] The Judge noted that Mr Smith had started using methamphetamine when he was 15 years of age. Typically, he used one gram per fortnight, but in 2015 his use escalated to approximately five grams per day. After Mr Smith’s arrest in April 2017 he self‑referred to an 18-week residential treatment programme at the Higher Ground Addiction Treatment Centre in Auckland. He graduated successfully from that programme and has not used methamphetamine since. He was considered to be in sustained remission. The Judge concluded that in the circumstances the most generous discount he could give to reflect the role of drug (and alcohol) addiction in Mr Smith’s offending and his efforts to deal with that addiction was nine months and that discount he provided.[25] The Judge gave a further discount of three months for remorse (noting that serious drug offending of this kind rarely merits any discount for remorse or good character). A discount of six months was given for the restrictive bail conditions that Mr Smith had been on. Finally, a discount of 15 per cent was given for Mr Smith’s guilty plea on the basis that it was not given at the earliest possible opportunity, but was still a few weeks before the trial was scheduled to start.[26]
Submissions
[19] Ms Pecotic submits that the nine month discount for addiction did not adequately address Mr Smith’s addiction issues, and that he should have been given a greater discount, indeed the “maximum discount of 30 per cent”. She submits a greater discount could have been provided to Mr Smith for remorse, in part reflecting the fact that his prior convictions were historic in nature and he had been a successful painting contractor until issues of drug addiction resulted in his losing that contract. She also submits that a discount of 20 per cent should have been allowed for the guilty plea because Mr Smith had signalled his willingness to plead guilty at an earlier stage, around April 2018, but negotiation of the precise charges and terms of the summary of facts could not be achieved with the Crown until late June. That was still some five weeks ahead of trial.
Discussion
[20] We start with addiction. As this Court noted in Zhang, the existence of addiction may affect sentencing in this area in a variety of different ways. First, at stage one (concerning the offending), it may be indicative of diminished role-related culpability, particularly where involvement in the supply chain is motivated primarily by that addiction, and where it is rewarded by drugs to feed that addiction with little other financial gain.[27] We have held that would not apply here.[28] Secondly, at stage two (concerning the offender’s personal circumstances) it may justify discount because diminished capacity to make a rational choice also diminishes the deterrent aspect of sentencing (both general and specific), because it may make a sentence disproportionately severe or because it demands a rehabilitative response as part of sentencing.[29]
[21] Ms Pecotic’s submission that Mr Smith here should have been entitled to the “maximum discount of 30 per cent” for addiction veers between the optimistic and the misconceived. Mr Smith’s primary motivation for offending was the financial rewards it offered him. His own addiction was serious, but he was able to function effectively as a significant member of the supply chain, and in due course to put the addiction behind him. As we noted in Zhang, “commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice, which is what diminishes culpability and justifies discounting the sentence”, although we did not exclude the possibility that impairment might co-exist with substantial offending.[30] This is not that case. The choice made by Mr Smith to engage in this large-scale commercial offending was overwhelmingly rational, driven by the economic rewards offered. The scale of offending and its motivation requires an undiminished deterrent response and serving a sentence of imprisonment is not disproportionately severe. We consider no allowance for addiction would be appropriate here.
[22] We will deal next with rehabilitation and remorse. The Judge gave a discount of nine months (or four per cent) reflecting both addiction and rehabilitative efforts. It is evident from both the psychological and character evidence before the Court that Mr Smith was a successful tradesman, employer, community member and family man before his descent into criminal offending. His prior convictions are minor and predate this offending by almost two decades. It is also evident that he has the force of will to reverse his addiction through participation in the residential treatment programme referred to earlier. We take the view that a discount of five per cent should have been applied here because of Mr Smith’s rehabilitative prospects and effort. We accept that Mr Smith’s expressed remorse is genuine inasmuch as it reflects harm done to his family and the wider community. We refer in particular to observations made by Mr Smith on these matters in an affidavit for the High Court. On the other hand, the offending was protracted and as a user who had on a number of occasions stopped using, but then returned, Mr Smith knew exactly the misery his actions were meting out to others. His claimed insights as a result of the treatment course he undertook do not ring entirely true. We would not alter, therefore, the modest three-month remorse allowance made by the Judge. We would have contemplated higher discounts on each score but for that fact, and the scale and duration of offending.
[23] It is not suggested any discount for good character should have been given, having regard to the scale and duration of the offending. We would not alter the six‑month allowance made by the Judge for Mr Smith’s restrictive bail conditions.
[24] Nor are we persuaded that the Judge erred in relation to the 15 per cent discount for the guilty plea.[31] That was entered a year after Mr Smith’s first appearance, and little more than a month before trial. Mr Smith may have signalled a willingness to plead earlier, but until that point he had hedged his bets. If Crown non-cooperation is to be advanced as a basis for delay and a greater discount, it needs to be the subject of affidavit evidence (which the Crown may then reply to if it wishes). In Zhang, this Court upheld the 15 per cent discount for Mr Smith’s co-offender, Ms Phillips, who pleaded guilty in essentially the same circumstances as Mr Smith.[32]
[25] The net result is that while we would have compiled the sentence in a slightly different way from the Judge in light of our subsequent decision in Zhang, the ultimate sentence we would have imposed is not materially different.
Minimum period of imprisonment
[26] The Judge considered that the criteria for imposing a minimum period of imprisonment had been established clearly, this being a case of very serious drug offending. The Judge therefore imposed a minimum period of imprisonment of 50 per cent of the end sentence.[33]
Submissions
[27] Ms Pecotic criticises the absence of reasoned analysis for the imposition of a minimum period of imprisonment by the Judge. She noted in particular that denunciation and deterrence are not effective considerations for someone suffering from a drug addiction. The impact of Mr Smith’s offending on his family had been catastrophic. The community did not require additional protection given that Mr Smith had not previously offended in this way and had been a useful contributor to society (and employer) in his previous painting contracting business. Ms Pecotic submits that a minimum term of imprisonment was not required for Mr Smith, and that it should be for the Parole Board to determine after he has served one third of his sentence whether it is appropriate for him to be released into the community.
Discussion
[28] The circumstances in which a minimum period of imprisonment should be imposed in drug offending cases were discussed in some detail in Zhang.[34] The broad principle to be drawn from Zhang is that substantial minimum periods of imprisonment should be reserved for cases involving substantial commercial dealing.[35] As in the case of Mr Zhang himself, where a 50 per cent minimum period of imprisonment was imposed,[36] this is a case involving very substantial quantities of methamphetamine. Mr Smith’s role as an upper level significant player in the distribution chain here means in our view that the imposition of a minimum period of imprisonment of 50 per cent was an inevitability. This Court reached the same view in his co-offender, Mr Berkland’s, appeal.[37] The Judge’s conclusion cannot be criticised. It would be entirely unacceptable for such substantial profit-driven offending not to generate that response.
Result
[29] The proposed grounds of appeal against sentence lack merit. It follows that the interests of justice do not require an extension of time to be granted.
[30] The application for an extension of time to appeal is declined.
Solicitors:
Crown Law Office,
Wellington for Respondent
[1] Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a): maximum penalty of life imprisonment.
[2] Section 6(1)(c) and (2)(a): maximum penalty of life imprisonment.
[3] Section 7(1)(a) and (2)(a): maximum penalty of six months’ imprisonment and/or fine of $1,000.
[4] Arms Act 1983, s 45: maximum penalty of four years’ imprisonment and/or fine of $5,000.
[5] R v Smith [2018] NZHC 2118 [Sentencing notes]. Concurrent sentences of six months on the Arms Act charges and one month on the methamphetamine possession charge were imposed.
[6] R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA) at [96]–[99]. See also R v Knight [1998] 1 NZLR 583 (CA) at 587.
[7] At [115].
[8] Mr Han is currently awaiting trial. Mr Ou was sentenced on 20 March 2020 to five years and nine months’ imprisonment: R v Ou [2020] NZDC 5212.
[9] R v Blance [2018] NZHC 1518 at [23].
[10] R v Berkland [2018] NZHC 1520 at [27].
[11] Sentencing notes, above n 5, at [20]–[21].
[12] At [22]–[23].
[13] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
[14] At [126].
[15] Zhang v R, above n 13; and R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).
[16] See Su v R [2020] NZCA 128 at [4] as to the application of Zhang v R to appeals requiring an extension of time such as this.
[17] Sentencing notes, above n 5, at [15].
[18] Zhang v R, above n 13, at [246] and [257].
[19] At [272]. Mr Thompson’s starting point is best regarded as one of 18 years for dealing in 6.8 kilograms of methamphetamine, he occupying a leading role (it was his enterprise). It should also be noted that Mr Thompson’s sentence was not appealed (the appeal related only to the imposition of a minimum period of imprisonment) and that this Court merely noted that the sentence imposed was “within the available range” under the new guidelines. That does not mean it was the starting point this Court would have imposed, however.
[20] Berkland v R [2020] NZCA 150.
[21] At [50] and [60]. Mr Berkland’s starting point was uplifted by 12 months for other offending: at [35].
[22] At [68].
[23] Zhang v R, above n 13, at [126].
[24] At [256].
[25] Sentencing notes, above n 5, at [25]–[28].
[26] At [29]–[31].
[27] Zhang v R., above n 13, at [126].
[29] Zhang v R, above n 13, at [138] and [146]–[150].
[30] At [147].
[31] Applying the approach in Royal v R [2020] NZCA 129 at [29], we address this also at stage two.
[32] Zhang v R, above n 13, at [227].
[33] Sentencing notes, above n 5, at [32]–[33].
[34] Zhang v R, above n 13, at [164]–[174].
[35] At [171].
[36] At [263].
[37] Berkland v R, above n 20, at [84].
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2020/221.html