TOWNSHEND v MINISTRY OF HEALTH [2017] NZHC 1993

TOWNSHEND v MINISTRY OF HEALTH [2017] NZHC 1993 [18 August 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-000065[2017] NZHC 1993BETWEEN JOSHUA FRANCIS TOWNSHENDAppellantAND MINISTRY OF HEALTHRespondentCRI-2017-409-000066BETWEEN JOSHUA FRANCIS TOWNSHENDAppellantAND NEW ZEALAND POLICERespondentHearing: 10 August 2017Appearances: P B McMenamin for AppellantK South for RespondentJudgment: 18 August 2017JUDGMENT OF GENDALL JIntroduction[1] The appellant Mr Townshend on 10 May 2017 was sentenced in the District Court at Christchurch by Judge Saunders to two years' imprisonment after pleading guilty to 129 charges under the Medicines Act 1981 and two charges of driving while disqualified.1 He now appeals that sentence, maintaining that it is manifestly excessive. At the heart of this appeal is a contention that the sentencing Judge erred by taking a starting point for the Medicines Act charges that was higher than the statutory maximum end sentence for any of the individual charges.The offending[2] The Medicines Act 1981 charges resulted from Mr Townshend's illegalbusiness activities. He operated a large national steroid ring, importing raw ingredients (anabolic steroids, anti-estrogens, thyroid medicine, and other prescription medicines) and manufacturing products for use as performance and image enhancers. He sold the drugs through a website and a Facebook page, operating under the brand name APS. The business was lucrative, recording annual sales of around $350,000 with typical profit margins for this type of enterprise of 2000-5000%.[3] Mr Townshend had been warned by Medsafe (a business unit of the Ministry of Health) of the illegality of his business activities, orally in March 2013 and in writing in April 2014. In February 2014 Mr Townshend had pleaded guilty to two earlier charges of importing Class C drugs, for which he was sentenced to nine months home detention and 200 hours community work. Much of the offending presently at issue occurred whilst Mr Townshend was serving that sentence. Some of the offending occurred even after he was served with summonses for the charges in October 2015.[4] Initially, there where almost 300 charges under the Medicines Act 1981, although a number were withdrawn. The remaining charges to which Mr Townshend pleaded guilty, are as follows:1 Police v Townshend [2017] NZDC 9874.(a) 4 x advertising new medicines;(b) 121 x selling new medicines; and(c) 4 x possession of prescription medicines without reasonable excuse.All of the charges carry a maximum penalty of six months imprisonment or a $20,000 fine.[5] On the driving whilst disqualified charges, in January 2016 Mr Townshend was disqualified from driving for one year and one day. Twice that month he was found driving and charged accordingly. They were his fourth and fifth convictions for driving while disqualified.The District Court decision[6] Judge Saunders passed sentence largely in accordance with a sentence indication which the appellant had accepted. His Honour took a starting point in relation to the Medicines Act offending of two years in total, and then worked backwards to arrive at sentences in respect of different sets of charges – an approach which was based on the decision of the District Court Ministry of Health v Bailey.2For the driving offences a starting point of 10 months was adopted. The Judge then applied a six-month uplift for the fact that much of the Medicines Act offending occurred while he was serving a home detention sentence, bringing the sentence to 40 months before discounts for guilty pleas. The Judge allowed a further discount, not anticipated by the sentencing indication, for an offer to repay some of the proceeds of the offending. After guilty plea discounts this took the overall sentence down to one of two years' imprisonment.[7] The final disposition of sentence was three cumulative 5 month sentences for each of the three sets of Medicine Act offending, and a cumulative nine-month sentence for the driving charges.2 Ministry of Health v Bailey DC Christchurch CRI-2013-009-4613, 25 July 2013.[8] And Judge Saunders considered that home detention was inappropriate here given the fact that the offending occurred while Mr Townshend was serving an earlier sentence of home detention. He considered that only imprisonment could provide adequate denunciation and deterrence.Jurisdiction and approach to appeal[9] The appellant appeals as of right.3 This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.4 If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestlyexcessive or inappropriate if the sentencing Judge's discretion is to be interferedwith.[10] It is not enough that the Judge made an error in his reasoning. The focus is on the sentence imposed rather than the process by which the sentence was reached.5SubmissionsAppellant[11] Mr McMenamin, counsel for the appellant before me contended that the methodology employed by Judge Saunders in his sentencing decision was contrary to principle and led to the end sentence being manifestly excessive. He submitted too that deciding on a starting point for the overall offending without reference to the statutory maximum and considering whether the sentences should be served cumulatively or concurrently, led to a "purely subjective" sentence, contrary to theexpress intent of Parliament. He maintained that the Judge should have "looked tosee where, in the range of possible offending against the provisions of the MedicinesAct, the defendant's activity sat and fixed a starting point within the range permitted by the statute" rather than "fixing on a figure plucked out of the air and supported only by the Judge's own intuition and the informant's submissions."3 Criminal Procedure Act 2011, s 244.4 Criminal Procedure Act, s 250.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[12] Mr McMenamin went on to suggest that offences in the Medicines Act run in parallel to those in the Misuse of Drugs Act, and that the low maximum penalties in the former reflect the fact that offences under that Act sit at the lowest end of the drug offending spectrum. It is not unusual, he submitted, for offending of this type to take place over a protracted period involving numerous transactions. However, Parliament has set the maximum penalty not by the number of offences, but by the character of the particular drug. The six-month maximum here, Mr McMenamin contends, indicates a comparatively low seriousness.[13] Mr McMenamin further submits that the Court of Appeal, in R v Wallace & Christie, has set down what it says is the correct approach that the starting point should be measured against the yardstick of the maximum penalty.6 A starting point that exceeds the maximum sentence he suggests is simply not available.[14] In the present case, Mr McMenamin submits, the charges fit the criteria for concurrent sentencing under s 84 of the Sentencing Act 2002. They are similar in nature and occurred in a connected series of events. The offending should therefore have been considered concurrently, and a maximum starting point of no more than six months adopted for each charge.[15] As to the driving while disqualified offences, it is further submitted that a nine months sentence for these was excessive. Mr McMenamin noted that this wasonly the appellant's second appearance in relation to such offending, as his first three convictions were entered on the same appearance. He suggested that Judge Saunders merely adopted this figure in order to get up to the two years he had preordained the sentence to be.[16] Finally, Mr McMenamin maintained that Judge Saunders did not give adequate consideration to the mitigating circumstances of Mr Townshend'soffending. He noted that the appellant had offered to pay back $47,000, which he did not have to do. There were numerous documents before the Court he said too which showed that the appellant recognised the harm he had caused and he had made6 R v Wallace and Christie [1999] 3 NZLR 156 (CA).attempts to turn over a new leaf. These factors, it is submitted, deserved a greater discount than that given.Respondent[17] Ms South for the respondent noted first, that the Court of Appeal has refused to issue a guideline judgment in this area because of the wide range of circumstances under which offending under the Medicines Act can take place.[18] She went on to argue here that there were a number of aggravating features toMr Townshend's offending – the large scale of the operation, the fact that this was offending for personal gain, the risk to the health and safety of the public, the sophistication of the operation, and the cynicism involved in the offending, particularly after receiving warnings and summonses.[19] Ms South before me referred to R x Xie, where the Court of Appeal held that, where there are a number of charges relating to the same offences, the starting point can be higher than the maximum for any one offence if the sentences are to be imposed cumulatively.7 In that case, the offender faced three identical charges with an 8-year maximum, and one representative charge with a 7-year maximum. The Court held that, theoretically, the starting point could be anything up to 31 years.8[20] She further submitted that in any event it is the end sentence, and not the process, which is relevant on appeal. Here, given the aggravating features, Ms South maintained the final sentence imposed appropriately reflected the totality of Mr Townshend's offending.[21] And, on the driving charges, Ms South contended that the sentence imposed was within range for fourth and fifth offences of this type.7 R v Xie [2007] 2 NZLR 240 (CA).8 At [15].AnalysisWas a starting point of over six months available to the sentencing Judge?[22] At the outset, it needs to be said that Mr McMenamin was correct to submit that the statutory maximum sentence for a particular offence must be the yardstick by which the starting point and the ultimate sentence for that offence is measured. It would be inappropriate for a Court to adopt a starting point in relation to a single offence, or in relation to numerous offences that are to be sentenced on a concurrent basis, that is higher than the maximum set by Parliament. The policy reasons for this are clear. It is Parliament, and not the sentencing Judge, which has the democratic mandate to decide how severe a response is required to any given type of offending.[23] However, as Ms South properly notes, the Court of Appeal decision inR v Xie is authority for the proposition that where sentences are to be imposed cumulatively, the overall starting point and end sentence can indeed be higher than the maximum for any single offence. This must be the case, as the function of cumulative sentencing is to recognise that discrete punishments are sometimes necessary for various offences, notwithstanding the fact that they are being sentenced at the same time. If sentencing Judges were constrained to the maximum sentence for one offence, the sentences that resulted would have to be deflated to the point where the outcome would be the same as if they had been imposed concurrently.[24] There is some force to Mr McMenamin's submission that the process bywhich Judge Saunders appeared to fix the starting point here may have to some extent lacked a principled basis. It seems that two years was selected with only general reference to the seriousness of the offending and not to the statutory maximum or whether the offending called for cumulative or concurrent sentencing. A better process to follow would have been first, to assess whether in the circumstances the offending should be sentenced on a cumulative or concurrent basis and then secondly, to fix a starting point for each set of offending to be sentenced cumulatively within the statutory maximum. In this case that would have been a six months maximum starting point for each of the sets of offending to be sentenced cumulatively.[25] The end result of the Judge's reasoning, however, in my view was in line with the correct approach, as each of the three sets of Medicines Act offending to be sentenced cumulatively were given sentences within the range set by Parliament. The question remains, however, whether Judge Saunders was correct to adopt cumulative sentences in all the circumstances prevailing here.Did the Judge err sentencing the three categories of Medicines Act offending cumulatively?[26] Section 84 of the Sentencing Act 2002 gives guidance on the correct use of concurrent and cumulative sentences of imprisonment:84 Guidance on use of cumulative and concurrent sentences of imprisonment(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—(a) the time at which they occurred; or(b) the overall nature of the offending; or(c) any other relationship between the offences that the court considers relevant.[27] Mr Townshend's offending under the Medicines Act was all part of aconnected series of events. The offences were also similar in kind: although some of the charges are for selling, some for advertising, and some for possession, all are intimately connected and relate to the same substances and the same business enterprise. Prima facie, then, s 84(2) would suggest that concurrent sentences are appropriate. However, the qualifier "generally" in that subsection implies that thereare circumstances where concurrent sentencing is nevertheless inappropriate. In R v Mackwood the Court of Appeal emphasised the need to make the choice betweencumulative and concurrent sentencing in light of the totality principle.9 Sometimes, the overall culpability of the offending will not be adequately recognised by concurrent sentencing, notwithstanding seeming qualification for concurrent sentencing under s 84(2). The totality principle is set out in s 85:85 Court to consider totality of offending(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.(4) If only concurrent sentences are to be imposed,—(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and(b) each of the lesser offences must receive the penalty appropriate to that offence.[28] In my view this is a case where the overall culpability of the offending would not be recognised by concurrent sentencing. The scale and persistency of Mr Townshend's offending, particularly given his knowledge of its criminality andhis failure to heed the warnings he received, must be recognised in the effective sentence he receives. Mr Townshend ran his illegal steroid business as a very large scale and lucrative operation and, in particular, for a substantial period of time while he was subject to an earlier sentence of home detention for illegally importing Class C controlled drugs. Mr Townshend's conduct involved a high degree of pre- meditation. It was a cynical and deliberate, prolifically advertised very large scale, operation run for high profit. The sentencing Judge had a statutory duty to hand down a sentence that reflected the totality of the offending and the need for9 R v Mackwood CA197/95, 28 March 1996.deterrence, and the way in which he was able to do this was to impose some of the offending on a cumulative basis. There was, therefore, no error.Was the end sentence manifestly excessive?[29] Given the scale of the offending and the aggravating features correctly identified by the respondent I do not consider that an effective end sentence of 15 months imprisonment for the Medicines Act charges was manifestly excessive. Itis a sentence that is in keeping with the District Court's sentencings in Ministry of Health v Bailey and Ministry of Health v Musson.10 If anything it is more lenient,given the aggravating features of Mr Townshend's offending.[30] Neither do I accept that a cumulative nine-month sentence for the driving while disqualified offences was manifestly excessive. I do not consider that there isany significance in the fact that this is only the appellant's second appearance for thiskind of offending. The important factor is not the number of appearances, but the number of convictions. Judge Saunders here was correct to impose a sentence in keeping with third and fourth offences. The maximum sentence for third and subsequent offences of this kind is two years imprisonment, and a review of the case law in my judgment indicates that nine months in the circumstances was within range.11[31] On the basis of the reasoning set out in his sentencing notes and the sentence indication, the Judge reduced the overall sentence from 40 months to 24 months to take into account the guilty pleas and other mitigating factors, including the offer to pay by way of reparation some of the proceeds of the offending. This represents a six months discount over and above the maximum 25 per cent for guilty pleas. In my view this is a generous discount in all the circumstances here. I do not accept the submission that these factors received inadequate recognition. I accept that if Judge Saunders had followed the methodology suggested above he may not have come to an overall starting point of 40 months, although I note that it would have been open for the Judge to sentence on the basis of more than three cumulative10 Ministry of Health v Bailey, above n 2; Ministry of Health v Musson DC Auckland CRI-2012- 009-006015, 3 February 2014.11 Fox v Police [2017] NZHC 573; Whitley v Police [2016] NZHC 1025; Osikai v Police [2015] NZHC 2952; Gibson v Police HC Rotorua CRI-2007-470-20, 18 May 2007.sentences for the Medicines Act offending. The only way to assess whether the overall sentence was manifestly excessive on appeal is to step back and assess whether the sentence imposed matches the culpability of the offending. For all the above reasons I am satisfied that it does.Conclusion[32] No error has occurred here in the sentence imposed. The appellant has not demonstrated that this sentence is manifestly excessive and that an alternative sentence should be imposed. The appeal is dismissed....................................................Gendall JSolicitors:K J McMenamin & Sons – Paul B McMenamin, ChristchurchRaymond Donnelly & Co, Christchurch