Fleming v R Coa

• Jurisdiction: New Zealand
• Judge: Randerson,MacKenzie,Asher JJ
• Judgment Date: 15 December 2011
• Neutral Citation: [2011] NZCA 646
• Docket Number: CA300/2011
• Court: Court of Appeal
• Date: 15 December 2011

Between

Glen Alexander Fleming

Appellant

and

The Queen

Respondent

[2011] NZCA 646

Court:

Randerson, MacKenzie and Asher JJ

CA300/2011

In The Court Of Appeal Of New Zealand

Appeal against sentence for serious drug offending — lead charge was manufacture of methamphetamine — appellant pleaded guilty when Hessell v R (CA) applied but sentenced when Hessell v R (SC) applied — deductions made for guilty pleas, remorse, offer of assistance and commitment to obtain treatment — imposed minimum term of imprisonment (“MPI”) but did not signal to counsel he was considering doing so nor had Crown made submissions on issue — effects of Department of Corrections policy to defer rehabilitation until inmates eligible for parole — whether discounts had been incorrectly imposed — whether offending attracting a finite sentence of less than nine years was “serious offending” requiring the imposition of an MPI.

Counsel:

E P Leary for Appellant

J M Jelas for Respondent

JUDGMENT OF THE COURT

A The appeal against sentence is allowed and the minimum term of four years imprisonment imposed is quashed.

B The sentence of eight years imprisonment is confirmed.

REASONS OF THE COURT

(Given by Asher J)

Introduction

1 On 19 April 2011 the appellant Glen Alexander Fleming was sentenced in the Rotorua High Court by Woolford J on one charge of manufacturing methamphetamine, one charge of possession of methamphetamine for supply, seven charges of possession of equipment or precursor substances with intent to manufacture methamphetamine and three charges of unlawful possession of a firearm. 1 The lead charge was manufacturing methamphetamine. It was charged that he had done so over a period of almost nine months.

2 Woolford J reached a final starting point for the totality of the offending of 12 years imprisonment. He deducted 25 per cent for Mr Fleming's guilty pleas. He applied a further deduction for Mr Fleming's remorse, which the Judge believed was genuine, his offer of assistance to the Police and his commitment to obtain treatment, the total discount applied being one-third. He sentenced him to eight years imprisonment. He also determined that a minimum term of imprisonment was necessary and imposed a minimum term of 50 per cent, or four years imprisonment.

Background

3 Mr Fleming was almost 33 years old. He was a long term methamphetamine addict. When, on 20 September 2010, Police executed a search warrant at his home, they found equipment used in the manufacture of methamphetamine. This included beakers and flasks, measuring equipment, gas stoves, other heating devices, a pH meter and funnels. They also located three Parr bombs, which are high pressure reaction vessels. These provide a dangerous but quick method of manufacturing large quantities of methamphetamine. Also located were a number of precursor substances including iodine, caustic soda, acetone and various acids. In total 61.9 grams of methamphetamine in several containers was recovered, $180,640 in cash, two rifles, a pistol and ammunition. Later in the day Police executed a second search warrant at a storage facility rented by Mr Fleming and found more equipment used in the manufacture of methamphetamine.

4 The Judge accepted that up to 375 grams of methamphetamine could have been manufactured during the relevant period. When spoken to, Mr Fleming admitted to manufacturing methamphetamine at the address on a regular basis for about seven years. He was charged with one representative count alleging the manufacture of methamphetamine between 1 January 2010 and 20 September 2010.

5 On sentencing the Court received both a pre-sentence report and a psychiatric report. The pre-sentence report was not particularly positive, although the Community Probation Service assessment tool calculated Mr Fleming's risk of re-offending as low. However, the psychiatric report from Dr Peter Dean was considerably more positive. It recorded that Mr Fleming came from a good background and had had a reasonable work record until he fell into methamphetamine addiction. Mr Fleming considered his arrest to be a good thing as it would give him an opportunity to break his habit and start afresh. The psychiatrist recorded his opinion that Mr Fleming had a good chance of responding to treatment programmes because he had a high level of motivation to change.

6 The Judge accepted that although he was manufacturing large quantities of methamphetamine and being paid considerable amounts of money, his predominant drive was to provide for his own habit. He considered that he would benefit from treatment programmes. There was a letter before the Court confirming Mr Fleming's acceptance to the Hanmer Clinic, Tauranga on his release from prison, and testimonials as to his good character.

7 Mr Fleming appeals the sentence of eight years imprisonment claiming that it was manifestly excessive. He also appeals against the imposition of a minimum term. There is no challenge to the starting point of 11 years on the lead offence of manufacturing, uplifted by one year to reflect the totality of the offending to reach a final starting point of 12 years imprisonment. Mr Leary for Mr Fleming raised three points, arguing that the Judge erred in law by:

• (a) Failing to apply the proper discount for Mr Fleming's guilty pleas;

• (b) Failing to apply the proper discount for his genuine remorse, offer of assistance to the Police and commitment to obtain drug addiction treatment; and

• (c) Imposing a 50 per cent minimum term of imprisonment.

The discount issue

8 We do not accept Mr Leary's submission that there was a significant discount available for Mr Fleming's offer of assistance. While that offer of assistance appears to have been sincere, he did not in fact provide information that was of assistance. As Ms Jelas for the Crown pointed out, he did not offer to identify his co-offenders, suppliers or customers.

9 Mr Fleming pleaded guilty when the Court of Appeal decision in Hessell v R 2 applied ( Hessell (CA)). That decision prescribed a maximum reduction of one-third for a guilty plea entered at the first reasonable opportunity. In line with then current practice, non-exceptional remorse did not justify a discrete discount. By the time Mr Fleming was sentenced the Supreme Court had issued its decision in Hessell v R 3( Hessell (SC)). The Court in that case held that the reduction for a guilty plea component should not exceed 25 per cent. That upper limit reflected the fact that sentencing credit for remorse was held to be properly given separately from that for the plea, a change of approach.

10 In accordance with Hessell (SC) the Judge applied a 25 per cent discount. Both counsel now agree Mr Fleming was entitled to rely on whichever of those two decisions afforded him the greater discount. 4

11 The total discount given by Woolford J was one-third. The guilty plea component was 25 per cent. The additional eight per cent was for Mr Fleming's remorse, which he believed was genuine, his offer of assistance to the Police and his commitment to obtain treatment. We agree with the Judge's assessment of the genuineness of Mr Fleming's remorse. On arrest he had immediately confessed to manufacturing methamphetamine for the past seven years. He had with apparent sincerity expressed relief that he had been apprehended. He undoubtedly was suffering from serious methamphetamine addiction. He had been unable to terminate his methamphetamine habit up to the time of his arrest. Since then he

appears to have seized the opportunity provided by his enforced incarceration to terminate the habit and re-start his life, as is confirmed by the psychiatric report. The further discount was entirely warranted

12 But we do not consider that Mr Fleming's remorse would have required a discrete discount under Hessell (CA) nor that the quantum of any additional discount he may have received for his offer of assistance to the Police and his commitment to obtain treatment warrants appellate intervention. The offer of assistance did not bear fruit, and the commitment to rehabilitation was, after all, a personal circumstance, which generally carries little weight in sentencing for serious, drug related offending given the vital need for denunciation and deterrence. 5 It was a...