WYATT v POLICE [2016] NZHC 231

WYATT v POLICE [2016] NZHC 231 [22 February 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2015-409-000123[2016] NZHC 231BETWEEN JEFFREY WILLIAM WYATTAppellantAND NEW ZEALAND POLICERespondentHearing: 16 February 2016Appearances: J D Lucas for the AppellantC E Martyn for the RespondentJudgment: 22 February 2016JUDGMENT OF NATION J[1] On 9 June 2015 Judge Farish sentenced the appellant on the following charges: 1(a) Conspiring to import into New Zealand a Class A controlled drug, namely methamphetamine;2(b) Possession of equipment capable of being used in, or for, the manufacturing of a controlled drug, namely methamphetamine, intending that the equipment be used in the commission of that offence;3(c) Possession of a pistol;41 Police v Wyatt [2015] NZDC 10450.2 Misuse of Drugs Act 1975, s 6(1)(a) and (2A)(a).3 Misuse of Drugs Act 1975, s 12A(2)(a).4 Arms Act 1983, s 45(1)(b).(d) Possession of a firearm;5 and(e) Possession of an explosive.6[2] The appellant was sentenced to four years and one month imprisonment after pleading guilty following a sentencing indication.7 He now appeals that sentence.[3] The appeal is based around the disparity in the starting points adopted on the conspiracy charge by the three different sentencing Judges who dealt with the appellant and his two co-offenders, Luke and Liam Barclay.Application for leave to appeal out of time[4] Mr Wyatt had a right of appeal which he had to exercise within 20 days of his sentence.8 He did not file a notice of appeal until 3 December 2015, some 177 days after the date of sentence. He therefore had to make an application for an order from the Court extending the time allowed for filing.9[5] The "touchstone" of any application to extend time is the "interest of justice in the particular case".10 Factors relevant to the question of where the justice lies include:11 the strength of the proposed appeal and the practical utility of the remedysought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.[6] Mr Wyatt has filed an affidavit in which he says he did not hear about his co- offender's sentences until approximately August 2015. He says he was waiting tohear back from his previous counsel and had difficulty contacting lawyers and dealing with legal aid. The issues he has raised over a potential disparity are not so lacking in merit that they should not be considered by this Court. The respondent5 Arms Act 1983, s 45(1)(b).6 Arms Act 1983, s 45(1)(b).7 Police v Wyatt DC Christchurch CRI-2015-009-002326, 30 April 2015.8 Criminal Procedure Act 2011, ss 244 and 248(2).9 Criminal Procedure Act 2011, s 248(4)(a).10 R v Knight [1998] 1 NZLR 583 (CA) at 587.11 At 589.will not be prejudiced if the appeal proceeds. In those circumstances, I grant leave to file the appeal out of time.Approach on appeal[7] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.12 I must dismiss the appeal in any other case.13 To allow the appeal, I must be satisfied that the sentence imposedwas "manifestly excessive".14 As has been stated:15[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.The offending[8] The most serious charge was that of the conspiracy to import methamphetamine into New Zealand. In February 2015 the Christchurch Police commenced an investigation which involved the surveillance of telephones. This allowed for the interception of communications to and from the appellant, Mr Wyatt.[9] On 24 February 2015 the appellant received a phone call from one of his co- conspirators, Mr Liam Barclay, in which they discussed the delivery of a Fed Expackage. It was agreed that the package would be sent to Mr Barclay's homeaddress. The package, en route from Mexico, was intercepted in Australia on 5 March 2015. It contained 15 grams of methamphetamine hidden inside a DVD case. This has a street value of $15,000.[10] As a result of the ensuing investigation the appellant was found in the possession of a sawn-off shotgun and some ammunition. These items were in a pack located in the motor vehicle he was using. In another vehicle at an address used by12 Criminal Procedure Act 2011, s 250(2).13 Criminal Procedure Act 2011, s 250(3).14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.15 Larkin v Ministry of Social Development [2015] NZHC 680.Mr Wyatt, the Police found a further .22 rifle. They also found more ammunition and some glassware which was capable of being used in the manufacture of methamphetamine.District Court sentence[11] Beginning with the conspiracy to import charge, Judge Farish considered that the offending came within the second band of R v Fatu.16 This indicated a starting point of three and a half to ten years' imprisonment. She accepted that the starting point had to be discounted by ten per cent given that it was a conspiracy that was charged. Taking into account that the importation was never completed, that the amount was 15 grams and that it was clearly a commercial operation, Her Honourtook a four year starting point. This was reduced to three and a half years'imprisonment, a reduction of 12.5 per cent.[12] Her Honour then uplifted the starting point by 18 months' imprisonment totake account of the firearms, ammunition and equipment charges. Mr Wyatt also had previous firearms and manufacture of methamphetamine convictions so a further sixmonth uplift was imposed, taking the sentence to 66 months' imprisonment. The full25 per cent discount reduced this to four years and one month imprisonment.Submissions[13] For the appellant, the primary submission of Mr Lucas was that there was no justification for the three different starting points identified by the Judges in their respective sentencing indications and ultimate sentences for the three offenders. He submitted that, on the summary of facts, the three co-defendants were equally culpable, so that there should have been equal starting points.[14] On that basis, he said the starting point for Mr Wyatt's involvement in themethamphetamine importation should have been 32 months rather than the four years adopted by the sentencing Judge. He accepted that the Judge's uplifts for the other charges and previous criminal record were appropriate, as was the discount for16 R v Fatu [2006] 2 NZLR 72 (CA).guilty pleas. With the necessary adjustment to the starting point, he argued the ultimate sentence for Mr Wyatt should have been in the vicinity of three and a half years.[15] For the Police, Ms Martyn submitted the starting point for the methamphetamine importation for the three offenders was all within a range of six months. She submitted that any disparity was not so great as to amount to the disparity giving rise to an error of law in the sentencing. She also submitted that the ultimate sentence was appropriate and could be distinguished because of the particular circumstances that related to Mr Wyatt, namely the further charges he faced of possession of equipment with intent, unlawful possession of firearms and ammunition charges and his 20 previous convictions, some of which were for relevant drug offending.Analysis[16] Section 8(e) of the Sentencing Act provides that the Court:[M]ust take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.[17] In relation to Mr Liam Barclay, Judge Saunders indicated a starting point ofthree and a half years' imprisonment in his sentencing indication17 and reiterated that starting point in his July 2015 sentencing.18 Judge Callaghan sentenced Mr Luke Barclay.19 His Honour took a starting point of three years and then reduced it by 10percent for the conspiracy element to 32 months' imprisonment. Both JudgeSaunders and Judge Callaghan indicated they considered the culpability of the two brothers was less than that of Mr Wyatt.[18] Mr Wyatt was sentenced on 9 June 2015. The sentence imposed was consistent with a sentence indication which Judge Farish had given on 30 April17 Police v Barclay DC Christchurch CRI-2015-009-002326, 2 June 2015.18 Police v Barclay [2015] NZDC 13695.19 Police v Barclay [2015] NZDC 12401.2015. Mr Wyatt had been represented by counsel. He pleaded guilty immediately after receiving the indication.[19] Liam Barclay had received a sentence indication from Judge Saunders on 2 June 2015.20 In that indication, the Judge said the starting point, before discounts for good character, the timing of the guilty plea and the fact the offending involved a conspiracy, was in the range of three to three and a half years. Judge Saunders sentenced Liam Barclay on 15 July 2015.21 He referred to his indication that the starting point for the offending would be in the range of about three and a half years before a discount for guilty pleas and other credits. He said that he had seen the sentencing notes of Judge Farish for Mr Wyatt. He also referred to the way in which Judge Callaghan had sentenced Luke Barclay, the fact Luke Barclay had funded some of what was required for the importation and the fact the Judge had adopted astarting point of three years' imprisonment for Luke Barclay's offending.[20] Luke Barclay was sentenced on 1 July 2015 by Judge Callaghan.22 The Judge referred to the way in which Mr Wyatt had been sentenced. He also referred to the sentencing indication which had been given by Judge Saunders in respect of Liam Barclay.[21] Judge Callaghan noted that Judge Saunders' starting point had been given in a "very generalised" way.23 He sentenced Luke Barclay on the basis that he knew what was happening with the importation and that he gave his brother some money for him to organise the ordering and delivery of the methamphetamine. Heproceeded on the basis that Luke Barclay's involvement had been about the same ashis brother's, perhaps "slightly less".24 He adopted a starting point of three years, allowed a discount of 10 per cent because it related to a conspiracy, leading to a starting point of 32 months before allowing the full discount for guilty pleas.[22] The summary of facts in relation to the importation of methamphetamine provides little information as to the differing roles the three co-offenders had with20 Police v Barclay, above n 17.21 Police v Barclay, above n 18.22 Police v Barclay, above n 19.23 At [4].24 At [4].regard to the importation. There was a record of a phone call between Mr Wyatt and an unknown male. The unknown male indicated that he needed a different address to send the registered package to because Fedex did not send to rural addresses. Mr Wyatt responded to the effect that he did not have another address. The unknown person said he would use that person's address. The unknown male referred to having got another few hundred bucks last night so "it'll be what we got the first time". Mr Wyatt said that sounded good. There was a record of some other phonecalls. These included calls from Liam Barclay. Those calls indicated that Liam Barclay and Mr Wyatt were communicating over progress of the methamphetamine to them in New Zealand.[23] Before allowing for a 10 per cent discount for the charges all relating to a conspiracy to import, the starting points adopted by the Judges were as follows:(a) For Mr Wyatt – four years' imprisonment;(b) For Liam Barclay (in a generalised way) – three and a half years'imprisonment; and(c) For Luke Barclay – three years' imprisonment.[24] Liam and Luke Barclay were both younger. Neither of them faced additional charges of the sort that Mr Wyatt faced. Neither had previous convictions. LukeBarclay was sentenced to nine months' home detention and required to do 250 hours'community work. Liam Barclay was sentenced to 10 months' home detention and200 hours of community work.[25] In R v Morris the Court of Appeal observed, in relation to its appellate role, that it:25 [M]ust also be concerned to ensure the maintenance of a due proportion between sentences. Any marked departure from accepted levels for offences of similar gravity without adequate reason can result in injustice to an accused person and may raise doubts about the even-handed administration of justice.25 R v Morris [1991] 3 NZLR 641 (CA) at 645.[26] In the earlier case of R v Rameka the Court of Appeal discussed disparity as a ground of appeal.26 The Court stated, firstly, that simply because one co-offender has received too short a sentence is not grounds for necessarily interfering with a longer sentence imposed on another.27 In each case the court must consider all of the surrounding circumstances which may vary infinitely.28 However, where the disparity cannot be justified and is gross, there may be grounds for appeal.29[27] It is clear that mere disparity will not, of itself, mean there has been an error in the sentencing.[28] The Court of Appeal have said:30 [D]ifferences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend tobring the administration of justice into disrepute But the test is objective,not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.[29] I recognise that each of the Judges may well have been given information through submissions that justified them proceeding on the basis that the culpability of the three co-offenders was not equal. Both Judge Saunders and Judge Callaghanexpressly referred to Mr Wyatt's offending as being more culpable. It would also have been reasonable for Judge Farish to proceed on the basis that Mr Wyatt's experience and knowledge of methamphetamine would have been essential to this offending. He also had a conviction for possession of methamphetamine from 2007 and convictions from 2008 for manufacturing methamphetamine and possession of26 R v Rameka [1973] 2 NZLR 592 (CA).27 At 593.28 At 593.29 At 593.30 R v Lawson [1982] 2 NZLR 219 (CA) at 223.methamphetamine for supply. He had a conviction for possession of other drugs from 2013.[30] The pre-sentence report referred to Mr Wyatt saying his desire to help his young co-offenders had implicated him again in a world he would prefer to distance himself from. He referred to the way his past associations caused others to seek him out. This does suggest that it was his knowledge and associations which were essential to the arrangement of this importation. His co-offenders were much younger and had no previous convictions. There was also a significant aggravatingfeature associated with Mr Wyatt's offending in the way it was associated with thepossession of firearms, particularly the sawn-off shotgun.[31] But for the disparity, it cannot be suggested the starting point adopted for Mr Wyatt was in error. Mr Lucas did not suggest otherwise. The starting point adopted by Judge Farish was appropriate, having regard to her categorisation of the offending as coming towards the lower end of the second band of offending, as discussed by the Court of Appeal in R v Fatu.31 The extent to which there was a disparity does however make it necessary for me to consider carefully the extent to which thatdisparity affected the sentence ultimately imposed for all Mr Wyatt's offending.[32] Mr Wyatt pleaded guilty to two charges of unlawful possession of a firearm.On each charge, the maximum penalty was four years' imprisonment. On 5 March2015, a day after Liam Barclay had sent a text message to Mr Wyatt stating he would text him when he had received the package of methamphetamine and would hold onto it until they met up, the Police executed a search warrant on Mr Wyatt's vehicle.In the boot of the car they found a camouflage backpack containing a sawn-off .410 calibre shotgun and three rounds of shotgun ammunition.[33] The next day, the Police executed a search warrant at addresses where Mr Wyatt had been residing. In his bedroom they found a chilly-bin containing glassware and a condenser wrapped in newspaper, a number of jars, one of which was half full of crystals. The equipment located in the chilly-bin was used in the manufacture of the class-A controlled drug methamphetamine. Located in the bed31 Above n 16.next to his bedroom was a box of 37 .22 calibre magnum rounds of ammunition and two .410 calibre shotgun rounds. The shotgun rounds were identical to those locatedin Mr Wyatt's vehicle the previous evening. A search of Mr Wyatt's vehicle revealeda .22 calibre rifle complete with scope. Mr Wyatt had never held a firearms licence.[34] Neither of the co-offenders had been found to have offended in this way. The possession of the firearms, particularly the sawn-off shotgun, was, in my view, a significantly aggravating feature as far as the methamphetamine offending was concerned. On sentencing Mr Wyatt, the Judge noted the equipment used in manufacturing methamphetamine was wrapped up in newspaper suggesting it was in transit. The fact Mr Wyatt had this equipment indicated that he was likely to have a role in either making methamphetamine or arranging for someone else to do this. The Judge considered there needed to be an uplift in the starting point for all offending on account of these further charges to the extent of 18 months. She considered this uplift was necessary, particularly in relation to the equipment that had been located.[35] There was a further uplift on account of aggravating features relating to Mr Wyatt personally and his criminal record. He had 20 previous convictions, including six weapons-related convictions, five drug-related convictions and two violence- related convictions. Mr Wyatt told the probation officer who prepared the pre-sentence report that he was reasonably good at "cooking" methamphetamine.[36] The pre-sentence report referred to Mr Wyatt accepting the sentencing indication and having a good understanding of his obligations and that he understood the likely sentencing outcome.Conclusion[37] Mr Wyatt pleaded guilty on the basis of the sentence indication he received. The delay in his filing an appeal indicated that, for a significant period, he was accepting of the sentence imposed as being appropriate for all his offending given his particular circumstances. It is not submitted for him that the sentence ultimately imposed was manifestly excessive given the nature of his offending and the aggravating circumstances relating to him personally. The appeal is broughtsquarely on the basis that the disparity in starting points adopted for the lead offending, in relation to the three offenders, was so significant that the ultimate sentence imposed on him has resulted in an injustice. As the Court of Appeal put it, the issue is whether a reasonably minded independent observer, aware of all the circumstances of the offence and of the offenders, would think that something had gone wrong with the administration of justice.[38] I am not persuaded that an error occurred in this way. I cannot find that an error was made with the ultimate sentence that was imposed or that I would have imposed a different sentence. Accordingly, I must dismiss the appeal.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch