SATHERLEY v R [2020] NZCA 171

SATHERLEY v R [2020] NZCA 171 [20 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA659/2019[2020] NZCA 171BETWEEN DEBORAH MARIE SATHERLEYAppellantAND THE QUEENRespondentHearing: 20 April 2020Court: French, Dobson and Nation JJCounsel: D J Matthews and R T Nye-Wood for AppellantS R D D Bicknell Young and B Hawes for RespondentJudgment: 20 May 2020 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B 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 restrictedweapon.[2] On 13 June 2018, Judge Tompkins sentenced Ms Satherley to a term ofimprisonment of three years and three months.1 Ms Satherley now seeks to appealthat 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 thenanother lawyer whom he had arranged to take over the case, would be filing an appealafter 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 explainedthere was then further delay when they were required by Legal Services to reviewthe case and confirm legal aid would be available for an appeal. The Crown did notagree that an extension of time should be granted but acknowledged there had been noprejudice 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'saddress. They found approximately 18 grams of methamphetamine divided betweenseveral snaplock bags and pill containers. In Ms Satherley's handbag, the police founda snaplock bag and a further quantity of methamphetamine along with a notebookcontaining a "ticklist" detailing what appeared to be transactions of $157,925, andreferences to weights such as "half oz" (that is, ounce). There were two straws usedfor consuming methamphetamine.[6] The police also found electronic scales of the sort commonly associated withdrug dealing. There were CCTV cameras showing the entrance to the house ontelevisions 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.1 R v Satherley [2018] NZDC 11785.[8] When the police entered the address, Ms Satherley attempted to hide an itemdown the side of a couch. A constable told her to leave that position. The constablerestrained Ms Satherley who struggled and had to be handcuffed.[9] Ms Satherley was on electronically monitored (EM) bail from 25 January 2017until she was sentenced.[10] At her trial, Ms Satherley claimed the methamphetamine had been brought toher home by an associate and she had seen the methamphetamine only when the policearrived at the address. She claimed the cannabis belonged to a friend who stayed ather home from time to time.[11] Under cross-examination, Ms Satherley accepted thatthe 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 oneday and $4,000 some days later. The offer indicated they had $10,000 coming in andwere asking if they might acquire more. Ms Satherley accepted the note was evidenceof a drug deal but claimed it was not one involving her. She claimed she had the taseronly for use as a torch.District Court sentencing[12] In sentencing Ms Satherley, Judge Tompkins said:2The evidence given at trial by the associate, by Ms Satherley, and byMs Satherley's daughter, I found to have little connection with reality and tobe 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 previousconvictions and the taser charge of three months each, taking the sentence to four yearsand six months' imprisonment. He gave Ms Satherley a credit of one year for timespent on EM bail and a further three months' credit for "compassionate" matters.4Those matters related to the way it was said a terminally ill friend, her teenage2 At [11].3 At [13] citing R v Fatu [2006] 2 NZLR 72 (CA).4 At [14].daughter, her father with whom she was living at the time of sentencing, and herdaughter's father all needed her support.Issues[14] Ms Satherley's appeal was not filed until after the Court of Appeal released itsjudgment in Zhang v R on 21 October 2019.5 In Zhang v R, this Court stated itsjudgment was not to apply to sentencing that took place before the release of thatjudgment if an appeal had not been filed before then.6 Consistent with this, counselargued the issues with due regard to the Court of Appeal's guideline judgment inR v Fatu and without reference to the way those guidelines were modified inZhang v R.[15] For Ms Satherley, Mr Matthews submitted the offending should have beenplaced at the bottom of band two of R v Fatu. He submitted a starting point of threeyears and six months would have been appropriate given the quantity ofmethamphetamine involved, particularly so having regard to starting points adoptedin 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 bythe Crown, primarily because of the difference in the amounts involved in those casesor because of the offenders' more obvious involvement in the supply or dealing inillicit drugs.8[17] Mr Matthews took no issue with the uplift on account of Ms Satherley'scriminal history and her possession of the taser, or with the 12 month discount for timespent on EM bail. However, he submitted Ms Satherley could have been given anincreased discount of six months because of the support she was able to provide tofamily members, a friend and particularly her teenage daughter.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 vTurner [2009] NZCA 389.8 Carroll v R [2012] NZCA 328; and Daniels v R [2018] NZCA 62.Analysis[18] In R v Fatu, the Court of Appeal emphasised that, in cases involvingimportation and supply, considerations of commerciality may be significant.9 In casesinvolving supply, there was increased culpability where the supply was for gain.Band two was for supply of commercial quantities which the Court considered wouldbe 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 presenceof the ticklist in the notebook in her bag, the presence of digital scales and the CCTVcameras were all consistent with the commercial supply of methamphetamine forfinancial gain. The quantity involved, together with the circumstances ofthe 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 Matthewsreferred to Duncan v R.11 In that case, the primary issue on the sentence appeal waswhether or not, in the circumstances of the case, there should have been evidence asto the purity of the methamphetamine before the bands in Fatu were applied. But forthat, there was no challenge to the sentencing Judge having adopted a starting point ofthree years and three months where the offender had been found guilty of possessionof methamphetamine for supply. The police had intercepted the vehicle he wasdriving. In it, they found a bag containing $3,000 in cash and two black boxes. In oneof the boxes was an electronic set of scales, a spoon, some broken glass and two plasticziplock bags containing crystals. The Court held, on the evidence, there was "no realscope for doubt about the market grade purity of the methamphetamine" so thatthe quantity involved in the offending did not have to be reduced by reason of its lesserpurity.12 With the Court's decision on the purity issue, the amount involved was ninegrams. In the other box were 12 empty point bags, 13 small plastic ziplock bags andtwo glass pipes.9 R v Fatu, above n 3, at [32].10 At [34].11 Duncan v R, above n 7.12 At [23].[21] Mr Matthews also referred to Mills v R.13 Mr Mills had been found with a fullyloaded .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 containing29.4 grams of methamphetamine. The Court of Appeal concluded that four and a halfyears' imprisonment would have been an appropriate provisional starting point, withan uplift of 18 months to reflect the aggravating features of the offending, primarilythe associated firearms offending, so that the appropriate total starting point wouldhave been six years' imprisonment.14[22] In Reid v R, the sentencing Judge adopted a starting point of five years forpossession for supply of 27.67 grams of methamphetamine on one occasion and15 grams on another occasion, and for possession of pipes.15 On the first occasion, hehad also been found with scales, snaplock bags, glass pipes and cash. The Court ofAppeal considered the five year starting point was within range although "at the upperextremity of [the Judge's] discretion".16[23] In R v Turner, the Court of Appeal upheld a sentence imposed after Ms Turnerhad been found guilty at trial of nine drug-related and firearms charges.17 The leadoffence had been possession of methamphetamine for supply for which the Judgeadopted 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 tobring the end sentence back to four years and two months. The mitigatingcircumstances included the potential effect on her child of being separated from hismother.18 The Court of Appeal said the context, digital scales, presence of $5,000 incash, supply of empty point bags and other drug paraphernalia, and the surveillanceand scanning equipment all indicated that the appellant "ran a reasonably sophisticatedretail operation".19 The Court of Appeal said this fully justified the selection ofthe three year starting point. That was however for possession of methamphetamine13 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].where the amount involved was only three grams, bringing the offending within bandone in R v Fatu.[24] The cases referred to by the Crown included Gush v R.20 Found atthe defendant's home were several snaplock bags containing 11.3 grams ofapproximately 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 Courtof Appeal endorsed a starting point of three years and nine months' imprisonment forthe possession for supply of the 5.65 grams of methamphetamine with a commercialaspect.21[25] In Carroll v R, the defendant had 7.87 grams of methamphetamine packagedin point bags, four mobile phones with messages implying drug dealing, 143 grams ofcannabis, and other paraphernalia.22 The Court of Appeal held a starting point of fouryears' imprisonment was "[i]n no way excessive. On the contrary, we regard it asexactly right".23[26] In Daniels v R, the defendant dealt 13 grams of methamphetamine (acrossseven occasions) and repeatedly offered to supply that drug.24 The Court of Appealupheld 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 startingpoint adopted by the Judge for Ms Satherley's methamphetamine offending was withinrange, having regard to the way the guidelines in R v Fatu had been applied in the casesthey refer to. That starting point also accords with the principles referred to bythe Court of Appeal in R v Fatu itself.[28] Ms Satherley was 47 at the time of the offending and 48 when she wassentenced. In 2005 she received a sentence of community work for possession ofmethamphetamine. In 2011, she was sentenced to six months' community detention20 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].for several offences including possession of cannabis. In 2012, she received a sentenceof home detention for various drug offences including possession of utensils forthe use of methamphetamine. She was sentenced on 22 January 2013 to two years'imprisonment for offending during 2011 in dealing in ecstasy, methamphetamine andamphetamine, 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-relatedoffending. The report noted she had denied using methamphetamine since 2012 butreferred to a urine drug screen from 2016 having detected that substance, and to herfailing to undergo tests which would have given a more accurate assessment of hersubstance 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 thatshe continued to minimise her involvement in the offending and to apportion blame toothers. The Department was concerned that rehabilitative sentences would be futileunless she was genuine in wanting to address the causes of her offending. The Courtagrees with the Department's assessment as to the risk of reoffending and the concernjust referred to.[31] All this meant that, in determining the length of sentence, the emphasis had tobe on holding Ms Satherley accountable for her offending and on deterring her andothers from involvement in future offending.[32] The uplifts for Ms Satherley's previous offending and possession of the taserwere modest. The Court of Appeal has noted previously that the possession of firearmsin association with drug offending is a significantly aggravating feature of thatoffending.26 A taser is not as dangerous as a firearm but, nevertheless, possession ofsuch an item, which could be used to either threaten or hurt someone, wasa significantly aggravating feature of the offending.26 See for example Mills v R, above n 7, at [18]; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338at [40]; and Haggie v R [2011] NZCA 221 at [23].[33] There is no precise formula by which the credit for time spent on EM bail is tobe calculated. For 18 months Ms Satherley was subject to a 24-hour curfew and hadto reside at her father's address but was permitted to leave the address for variousreasons personally important to her. She was not in employment so did not need toleave the address for work. At sentencing, information was put before the Court toshow that, while living at her father's address, she had sought to obtain an incomefrom restoring and selling furniture. We agree with the Crown's submission that thecredit of 12 months for the time Ms Satherley was on EM bail could be consideredgenerous.[34] Through living at her father's address while on EM bail, Ms Satherley had beenable to support her father, although his health needs had not required such assistancebefore she was on EM bail. The sentencing Judge had a letter from a doctor indicatinghe would be supportive of Ms Satherley being available to help a friend of hers, whowas a patient of the doctor and suffering from terminal cancer, but he noted that patientalso had the support of "a very supportive daughter".[35] Ms Satherley ought to have known that her involvement withmethamphetamine would put her at risk of being unable to care for her daughter inthe way she contended on sentencing that her daughter needed. She had been unableto 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 impacta sentence may have on an offender's family and make some adjustment.27Accordingly, there was no error in the Judge allowing Ms Satherley a credit ofthree months on compassionate grounds.[37] Taking all matters into account, we have not been persuaded that the startingpoint adopted for the methamphetamine offending was in error or that the ultimatesentence was manifestly excessive.27 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163 at [42]; and R v Harlen [2001] 18 CRNZ582 (CA) at [22].Result[38] The application for an extension of time is granted.[39] The appeal is dismissed.Solicitors:Public Defence Service, Christchurch for AppellantCrown Solicitor, Christchurch for Respondent