VESEY v NEW ZEALAND POLICE [2016] NZHC 557

VESEY v NEW ZEALAND POLICE [2016] NZHC 557 [4 April 2016]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2016-488-000003[2016] NZHC 557BETWEEN GRAEME DAVID VESEYApplicantAND NEW ZEALAND POLICERespondentHearing: 21 March 2016Appearances: Applicant in Person (assisted by Caroline Hohaia as aMcKenzie Friend)Richard Annandale for the RespondentJudgment: 4 April 2016JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 4 April 2016 at 4:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] The appellant, Graeme David Vesey, appeals against his sentence of threeyears and two months' imprisonment, imposed following the entry of a plea of guilty to one representative charge of supplying the class A controlled drug methamphetamine.1[2] Mr Vesey makes three complaints. First, he says that the Judge's assessment of the quantity of drugs was speculative. Secondly, he says that the Judge'sclassification of his offending in terms of the bands set out in R v Fatu2 was wrong and thirdly, he says he should have received the full 25 per cent discount for his guilty plea.Factual background[3] The summary of facts reveals that in December 2015 the Police became aware that Mr Vesey was selling methamphetamine in the Far North. An investigation was launched and a search warrant was executed at his home address in Kohukohu. A sum of cash totalling $4,590 was located along with a number of cellphones.[4] Data from Mr Vesey's cellphone was retrieved for the three month periodbetween 1 December 2014 and 1 February 2015. An examination of data from the telephone revealed more than 2,000 text messages had been sent or received over this period. On analysis these revealed Mr Vesey was in contact with at least eight customers. The telephone analysis revealed that Mr Vesey regularly sent text messages to customers asking if they wanted to buy methamphetamine. On 20 separate occasions he made unsolicited offers to sell methamphetamine. On other occasions customers made enquiries of him.[5] It is unclear exactly how much methamphetamine was actually supplied. Some of the text messages referred to grams, half grams or quarter grams being1 Misuse of Drugs Act 1975, s 6(1)(c).2 R v Fatu [2006] 2 NZLR 72.available for sale. Other messages referred to $100 bags and $200 bags. Some text messages made no reference to specific amounts at all.District Court decision[6] Judge Hunt, sitting in the District Court at Kaitaia, noted the Crown'sconcession that Mr Vesey was a low level street dealer. This conclusion was drawn from observations that Mr Vesey appeared to have a limited pool of customers, was someone who made drugs available to others and appeared to act as a middle man.[7] Mr Vesey's then counsel urged the Judge to exercise caution whendetermining the actual amount of drugs supplied by him. Counsel submitted that on the basis of the text messages it could be calculated that roughly 4.3 grams of methamphetamine had been supplied. The Judge noted the Crown's submission that Mr Vesey professed an ability to procure large volumes of methamphetamine and demonstrated a willingness to supply these amounts. He expressed a reluctance to adopt the strict mechanical formula suggested by counsel. Instead, he observed the text messages suggested Mr Vesey was willing and able to supply larger volumes of methamphetamine. Despite this, the Judge determined that the facts justified the offending being classified at the bottom of Band 2 of Fatu (5 to 250 grams – three tonine years' imprisonment) or at the top of Band 1 (up to 5 grams – two to four years'imprisonment).3 He thus adopted a starting point of four years' imprisonment.[8] Judge Hunt determined there were no personal factors which would justify an uplift or a discount. He concluded that contrary to counsel's submission, he was unconvinced Mr Vesey was, himself, a methamphetamine addict and that addiction drove his offending. He pointed out Mr Vesey had made no mention of addiction or drug dependence when speaking to the author of the pre-sentence report. Instead, he attributed his offending to a combination of factors including Christmas, visitors,alcohol and bravado. I note the Judge rejected counsel's submission that he was shyor coy in his explanation to the probation officer. I also note in argument before me Mr Vesey made no reference to drug dependence being connected to the present offending.3 R v Fatu above n 2.[9] Although his Honour found no personal factors which would justify an uplift or a discount he did give Mr Vesey a 20 per cent discount in recognition of his early guilty plea. He observed he was disinclined to give the full discount given the strength of the evidence stacked against Mr Vesey. He imposed an end sentence ofthree years and two months' imprisonment.Approach to appeal[10] Section 250(2) states that the Court must allow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[11] In any other case, the Court must dismiss the appeal.4[12] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957.5 The appellate court does not simply start afresh automatically or substitute its own opinion for that of the original decisionmaker. Rather it must identify "an error of the requisite character", this being onethat is material to the end sentence. Although s 250 makes no express reference to"manifestly excessive", this principle is "well-engrained" in the court's approach to sentence appeals, and will continue to be relevant. If an "error of the requisite character" is identified, the appellate court will then form its own view of the appropriate sentence. It will not tinker or intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.4 Criminal Procedure Act 2011, s 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.Appellant's submissionsPreliminary matters[13] An examination of the Court file indicates that no notice to appeal in the prescribed (or any other form) has been filed. Instead, a substantial volume of material has been filed together with a letter from Mr Vesey in which he states:"I, Graeme David Vesey, hereby give notice of appointment of Caroline Hohaia as my Power of Attorney and Executor/Executrix. I agree and confirm full agreeance to have Caroline Hohaia expressly represent myselfin all matters legal and business pertaining and associated to me."[14] Other documents on the file appear to have been filed by Ms Hohaia, on behalf of Mr Vesey. One is entitled, "Notice Of Intention" and another, "Affidavit of Truth". The notice of intention records that Ms Hohaia, apparently on behalf of MrVesey, expresses a wish to appeal the sentence imposed:" due to unsubstantial evidence and the lack of common law used in thisinstance no harm was done to anyone/ones or his/her possessions. The only harm been done here was the imprisonment of the living blood and flesh man who's name in commerce is GRAEME DAVID VESEY via unlawful imprisonment.No corporation can deal with a living man/woman and the magistrate Murray Hunt has acted unlawfully in his determination of imprisonment on a living blood and flesh man whom unknowingly identified himself as thename in commerce on his birth certificate which is a crime."[15] The document purports to challenge Judge Hunt's jurisdiction to impose sentence claiming there is:" no contract in ink between Murray Hunt and GRAEME DAVID VESEYstating Murray Hunt can act on GRAEME DAVID VESEY'S behalf or representative of the person."[16] The document also complains that Mr Vesey was denied a 25 per cent reduction on his plea of guilty with the consequence that home detention was not an available sentencing option.[17] As a result, it was claimed that Mr Vesey and his family had been:" physically spiritually and mentally affected by the unlawful determination of acting Magistrate Murray Hunt"and that the Judge acted:" against the law of the land, common law as well as the Roman Curia viaPope Francis's papal decree 'Motu Proprio'."[18] The papers also included what appears to be an apostolic letter issued by the Pope on 11 July 2013.Ms Hohaia – McKenzie Friend[19] At the beginning of the hearing Ms Hohaia advised she appeared on Mr Vesey's behalf and that she would present his appeal. I explained to Ms Hohaia the limited role of a McKenzie Friend. I pointed out that while she could assist Mr Vesey she was not permitted to argue his appeal on his behalf.6 I asked her and Mr Vesey if they wished to have time to discuss matters in the light of my direction. They indicated they wished to do so. I stood the appeal down to allow them the opportunity to consult.[20] When the matter was later called Ms Hohaia advised that Mr Vesey wished to use her services as a McKenzie Friend. I permitted Ms Hohaia to sit with Mr Veseyat counsel's desk. Although only Mr Vesey addressed me it was apparent Ms Hohaia provided assistance throughout in accordance with my directions.The argument[21] Mr Vesey confirmed he was not challenging Judge Hunt's jurisdiction orauthority to impose sentence on him. Instead, he submitted that Judge Hunt'sassessment of the quantities of methamphetamine traded was speculative and that he was wrong to place the case at the top end of Band 1 in Fatu or at the lower levels of Band 2 in Fatu. He thus submitted that the starting point adopted by the Judge offour years' imprisonment was in error and that the appropriate starting point on the authority of Fatu was three years.6 The term "McKenzie friend" stems from the case of McKenzie v McKenzie [1970] 3 All ER 1034 in which an Australian barrister was permitted to sit beside one of the parties and assist him in conducting his case. It is well-established that McKenzie friends are allowed to take notes, quietly make suggestions and give advice, and propose questions and submissions to the litigant. However, save in exceptional circumstances, they are not permitted to address the Court by making submissions or asking questions themselves (see Mihaka v Police [1981] 1 NZLR 54 and R v Hill [2004] 2 NZLR 145).[22] Mr Vesey further submitted he was entitled to the full 25 per cent discount for his plea of guilty which he submitted was early. He said that with a three year starting point and full discounts the sentence would be brought below two years'imprisonment and he would thus be eligible to a sentence of home detention.[23] He expressed remorse for his actions and promised he would not re-offend. He said that his present period of confinement has had significant effects on his health, his family and his children. He says he has been subjected to violence while in custody and that during his incarceration he has been something of a model prisoner in the sense he has assisted and mentored other inmates.Crown submissions[24] Given Mr Vesey's acceptance of the District Court's jurisdiction to imposesentence, Mr Annandale for the Crown did not develop his written submissions on the question of jurisdiction and the application of s 9 of the Criminal Procedure Act 2011.[25] Mr Annandale submitted that the four year starting point adopted was well within the range available to the Judge when a holistic assessment of Mr Vesey'sconduct was undertaken. He submitted it was necessary to look beyond the actual and quantifiable volumes of methamphetamine supplied.[26] He also submitted that a 20 per cent discount was appropriate for Mr Vesey'sguilty plea having regard to the strength of the case against him.Analysis[27] In order to obtain a proper appreciation of the level of offending it isnecessary to consider the nature of the charge and the essence of the Crown'sallegation. While it is correct that Mr Vesey pleaded guilty to only one charge it was representative in the sense it related to 20 identifiable text transactions over three months in which Mr Vesey arranged or offered to supply quantities of methamphetamine to customers. The amounts involved were as follows:01 Grams, ½ grams and ¼ grams offered. Buyer wanted ½ gram02 Grams, ½ grams and ¼ grams offered. Buyer wanted ½ gram03 Advised his supplier would be bringing ½ grams $200 bags and $100 bags. Buyer wanted ¼ gram04 $100 bag05 $100 bag06 $200 bag07 $100 bag08 Advised he was getting more methamphetamine that night. Buyer wanted ¼ gram09 $100 bag10 $100 and $200 bags11 $200 bags12 $200 bags13 $100 and $200 bags14 Unknown quantity15 $200 bags16 $200 bags17 Unknown18 $100 bag19 $100 bag20 $200 bags[28] The level and extent of the offending is plain from that catalogue. Various quantities were offered. Some transactions were calculated on the basis of weight; others were based on price.[29] At the very minimum, as submitted by Mr Vesey's counsel in the DistrictCourt, he offered 4.3 grams of methamphetamine. However, Judge Hunt properly eschewed such a formulaic and limited approach to the assessment of culpability when he noted:"[13] I think the use of plurals in your text messages when I read them suggests that you were available to supply larger volumes and I havedifficulty with accepting [counsel's] rather precise and mechanicalcalculation of the amounts involved. It is by chance only that the amount supply (sic) according to his maths amount (sic) to only just over 4 grams."[30] The starting point adopted by the Judge was within the range available to him. Even based on the most conservative estimate of 4.3 grams the amount of the drug involved places the offending towards the top of Band 1. However, a broader and more practical evaluation of totality makes it plain in my view that Mr Vesey supplied a considerably greater amount. Certainly, such a conclusion was open to the sentencing Judge.[31] Furthermore, a starting point of four years is broadly consistent with Mr Vesey's status as a low level street dealer who was actively engaged in tradingmethamphetamine. It is apparent he had a ready source of methamphetamine and traded in amounts defined by quantity and value on a regular basis over a three month period.[32] Such a starting point is consistent with other decisions of this Court.7 These cases support the proposition that a starting point of three years' imprisonment isappropriate for quantities of methamphetamine at levels less than 4.3 grams. Furthermore, the present case is more serious given the nature of the offending and in particular both the level of activity and the period over which it occurred. Characterisation of Mr Vesey as a low level street dealer is consistent with theJudge's adoption of a starting point at the bottom of Band 2 or the top of Band 1 inFatu.[33] I agree with the Judge's assessment of culpability and his classification of theoffending in terms of Fatu.[34] The next question is whether a discount of slightly more than 20 per cent, being 10 months, for the appellant's early guilty plea is sufficient. His Honourexpressly noted he would have given a discount of 25 per cent but for the strength of the Crown case.[35] This observation is consistent with the Supreme Court's rejection of the Court of Appeal's approach in Hessell v R8 where it observed:"[60] This [ie, the Court of Appeal's] approach would mean that where a plea is entered promptly, even in the face of a very strong prosecution case, the maximum discount must be given. But that treats as irrelevant an important factor in evaluating the extent to which a plea involves acceptance of responsibility. The approach is likely to lead to the criticism that unjustified windfall benefits are provided by the system to those who have little choice but to plead guilty. Importantly also, it would put pressure on an accused to plead guilty for reasons that are unprincipled. In some cases pressure of this kind could lead to a guilty plea being entered in haste, bysomeone who may not be guilty of the offence charged and pleaded to."7 R v Leigh [2013] NZHC 1826; Martin v R [2012] NZCA 572; Higgens v R [2012] NZCA 365; R v Matthews CRI-2010-088-2612.8 Hessell v R [2010] NZSC 135.[36] This was a strong Crown case. Faced with the content of the text messages Mr Vesey had no realistic option other than to plead guilty. The discount of 20 per cent adopted by Judge Hunt was entirely appropriate and consistent with principle given the evidence against him was nothing short of overwhelming.Result[37] The appeal is dismissed.Moore JSolicitors:Crown Solicitor, WhangareiCopy to:The Appellant