Fleming v R Coa

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeRanderson,MacKenzie,Asher JJ
Judgment Date15 Dec 2011
Neutral Citation[2011] NZCA 646
Docket NumberCA300/2011

[2011] NZCA 646

In The Court Of Appeal Of New Zealand

Court:

Randerson, MacKenzie and Asher JJ

CA300/2011

Between
Glen Alexander Fleming
Appellant
and
The Queen
Respondent
Counsel:

E P Leary for Appellant

J M Jelas for Respondent

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.

Held:

In accordance with Hessell (SC) the judge applied a 25 per cent discount. F was entitled to rely on whichever of the two Hessell decisions afforded him the greater discount. However F's remorse did not require a discrete discount under Hessell (CA). The quantum of any additional discount F may have received for his offer of assistance to the police and his commitment to obtain treatment did not warrant appellate intervention. The offer of assistance did not bear fruit, and the commitment to rehabilitation was a personal circumstance, which generally carried little weight in sentencing for serious, drug related offending, given the vital need for denunciation and deterrence. It was a factor that was likely to be seen as falling within the allowance for remorse inherent in the Hessell (CA) one-third discount. The end sentence reached by the judge was not wrong. The starting point was acceptable and the discount of one-third within the range.

The sentencing judge did not warn counsel that despite the lack of any Crown submissions on the point he was considering a MPI. Counsel for the defence was entitled to assume in the absence of a Crown submission or a reference from the judge, that there was no risk of a MPI being imposed. If he had been put on notice that a minimum term was being considered, defence counsel would have made additional submissions tailored to respond to whatever reasons were being put forward for the minimum term. In those circumstances, there was a risk of injustice in the judge imposing a minimum term of imprisonment.

The offending in this case involved an operation of some sophistication. Firearms charges involving three guns added to the culpability. However it was not as serious as the in R v Wong. In cases of very serious drug offending, while the court's discretion would never be fettered, it would be almost invariable that the criteria for a minimum term would be made out (Wong). However the decision in Wong had referred to the earlier Court of Appeal decision in R v Anslow. In that case, having surveyed 71 sentencing decisions, it concluded that MPI's had seldom been ordered for drug related offending when the finite term had been less than nine years imprisonment, but had been commonly imposed when the finite term had been nine years or greater. That demarcation gave some indication as to when drug related offending would fall into the “very serious” category in which a minimum term was almost inevitable.

The offending in this case was not in that order of seriousness but was driven to a great extent by F's need to meet his own habit, which meant there was therefore less harm to the wider community. There was less need for denunciation and deterrence than in Wong. F's personal factors, including his remorse were relevant to the decision. There was a real prospect of rehabilitation. No MPI was warranted for this offending.

It was important the sentencing judges be made aware of, and take into account as appropriate, a policy of the Department of Corrections that postponed drug and alcohol rehabilitation courses for long term prisoners until they were eligible for parole.

Sentencing of 8 years' imprisonment confirmed but appeal against sentence allowed and the MPI of 4 years was quashed.

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 R2 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...

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