Constable v Police [2014] NZHC 2940 (24 November 2014)

Last Updated: 2 February 2015

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-000031 [2014] NZHC 2940

JERARD VERNON CONSTABLE Appellant

v

POLICE Respondent

Hearing:	24 November 2014 (via AVL)
Counsel:	J A Westgate for Appellant R D Smith for Respondent
Judgment:	24 November 2014

_{JUDGMENT OF WHATA J}

[1] Mr Constable pleaded guilty to three charges, namely one of supplying the Class A drug methamphetamine, secondly supplying the precursor substance hydrochloric acid, and thirdly a charge of dangerous driving. Judge Crosbie sentenced him to an end sentence of two years and nine months, comprising a starting point of two years nine months for the lead offence together with a nine

month uplift for the separate precursor offending.¹ He was also convicted and

discharged on the dangerous driving charge, but as that is not appealed it is of no further relevance here. A 15% discount was (purportedly) taken into account

_{resulting in the end sentence just mentioned.}²

¹ _{R v Constable DC Christchurch CRI-2014-012-561, 18 August 2014.}

2. It is to be observed that in fact a 15% discount off three years six months would result in an end sentence of two years 11 months.

CONSTABLE v POLICE [2014] NZHC 2940 [24 November 2014]

[2] Mr Constable appeals from that sentence. He had received a sentencing indication based on 11 grams of methamphetamine of two years nine months. He said that as the disputed fact hearing resolved that he was supplying only five to six grams, the final sentence should have been less.

Background

[3] There is no undue complexity to the background. Mr Constable pleaded guilty to a charge of supplying methamphetamine but challenged the summary of facts. It was alleged that he had supplied 11 grams of methamphetamine. It transpires that the Court resolved that in fact he had supplied approximately five to six grams of methamphetamine. The Judge in a reasonably thorough canvas of the

facts and law, including the guideline case of R v Fatu,³ determined that the proper

starting point was two years nine months, together with an uplift of nine months for the separate precursor offending. A 15% discount was then purportedly applied with the resultant sentence of two years nine months.

[4] The previous November, Judge Crosbie had given a sentencing indication, again applying the lead guideline decision of Fatu. He was then dealing with a summary of facts alleging that Mr Constable had purchased some 11 grams and was expecting a further two grams but it was intercepted by the police. The Judge also

referred to three High Court authorities including Wire v Police,⁴ R v

MacPherson⁵and R v Dunn⁶ and one Court of Appeal authority, namely R v Byford.⁷

He gave an indication of between two years nine months and three years.

[5] The key part of the sentencing indication reads:

[17] The totality principle is of course at play and on the other charge, which is not an insignificant charge in itself, while starting points for similar offenders in this operation have been around 18 months, I would uplift the three and a half years by nine months for that offending, to have a total starting point of four years.

³ _{R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).}

⁴ _{Wire v Police [2013] NZHC 2202.}

⁵ _{R v MacPherson HC Hamilton CRI-2006-019-1950, 11 May 2006.}

⁶ _{R v Dunn HC Auckland CRI-2008-404-76, 14 October 2008.}

⁷ R v Byford [2008] NZCA 215.

[18] Providing Mr Constable with even the fullest discount of 25 percent and perhaps something further for remorse, rehabilitation and personal circumstances, I could not see a discount in the end result of any greater than about 30 percent, which would mean that still Mr constable is a considerable distance from a two-year end point and is not in a position, in my view, where it would be necessary to consider a sentence of home detention. Even if we got down to that point, Mr Constable would have some difficulty, given his approach to sentences in the past.

[19] The indication I give today is a sentence of no greater than three years’ imprisonment as an end point, with an open mind as to whether it would be any lower than that, in the region of, say, two years nine months. So an indication of between two years nine months and three years is the indication I will give today.

Jurisdiction

[6] This is an appeal pursuant to s 250(2) of the Criminal Procedure Act 2011. It is common ground that a sentence which is manifestly excessive, wrong in principle, or flawed on its face, may be corrected on appeal.

Assessment

[7] I see no obvious error in the Judge’s formulation of the sentence. The sentencing indication, including a substantial discount in the order of 30 per cent, foreshadowed an end sentence of between two years nine months and three years for an assumed supply of about 11 grams. But by the time of sentence, the scale of the offending had reduced to five to six grams. However, at the same time the appellant was no longer entitled to a full discount on sentencing, given that he did not accept the sentencing indication and in fact did not plead guilty until 7 April 2014, some months after the sentencing indication. By this time the matter had already proceeded to trial callover, though by March it then became clear that the real issue was quantum.

[8] It is also quite clear that the starting point adopted was well within the guideline range provided by Fatu for upper Band 1, lower Band 2 offending.⁸ Band

1 in Fatu, dealing with offending of less than five grams stipulates that starting points of two to four years imprisonment are appropriate, while Band 2,

_{encompassing supply of between five and 250 grams, has a range of starting points}

⁸ R v Fatu, above n 3, at [34].

of three to nine years’ imprisonment. Given that guideline judgment it is difficult to

conclude that the starting point in fact adopted was manifestly excessive.

[9] Stepping back from the finer grain, the highest I think that Mr Constable can put his case is that a sentencing indication of up to three years for 11 grams should translate into a sentence of substantially less than that for offending of five to six grams. It might also be said that Mr Constable was forced to defend, ultimately successfully, the police allegations in terms of the quantum of supply.

[10] But this is not a case where a legitimate expectation of a sentence arose. The sentencing indication was not accepted within the statutory timeframe. In any event, there is no exact correlation between quantum of supply and sentence. It is for this reason that the appellate Court provides sentencing bands rather than a fixed formula as between quantum and length of sentence. The starting point therefore being well within those provided by the Bands, there can be no criticism of the sentence imposed. In this regard, there is no serious challenge to the uplift on the supply of precursor substance.

[11] The appeal is dismissed.

Solicitors:

J A Westgate, Dunedin

Wilkinson Adams, Dunedin