Adams v Police
[2023] NZHC 2389
•30 August 2023
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-412-47
[2023] NZHC 2389
BETWEEN TE-MAIPI ADAMS
Appellant
AND
NEW ZELAND POLICE
Respondent
Hearing: 23 August 2023 Appearances:
S A Saunderson-Warner for Appellant C E R Power for Respondent
Judgment:
30 August 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 30 August 2023 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
ADAMS v NEW ZELAND POLICE [2023] NZHC 2389 [30 August 2023]
Introduction
[1] Te-Maipi Adams pleaded guilty to three charges of supplying a class C controlled drug to a person under 18,1 and two charges of supplying a class A drug.2
[2] He was sentenced in the District Court to two years and three months imprisonment.3 He appeals this sentence on the ground the starting point was too high, and so the end sentence was manifestly excessive.
Facts
[3] The victims in this matter did not know the appellant. Victim ‘R’ was 14 years old at the time of the offending and victim ‘C’ was 12 years old.
[4] At around 11am on Thursday 15 September 2022, victim R went to the appellant’s place, looking to use cannabis. Inside the property, the appellant placed a small amount of cannabis on spotting knives which he heated with a blowtorch. He then covered the knives with a home-made plastic funnel and both the defendant and R inhaled the smoke.
[5] Later on the same day, both victims went to the appellant’s property. They went with the appellant into his bedroom where he gave them a can of Woodstock alcohol to share. C had told the appellant she was 12 and the appellant replied that it was okay as long as she did not tell anyone. The appellant then prepared cannabis as before and gave each victim around three turns inhaling.
[6] The appellant then went to a liquor store and obtained alcohol. Once he returned, he encouraged both victims to drink straight vodka and held the bottle up while they were drinking.
[7] The appellant then offered to supply the victims methamphetamine. Using a straw, he placed a small quantity of the powder into a glass pipe. He then demonstrated to the victims how to smoke the methamphetamine. He held the pipe to the victims’
1 Misuse of Drugs Act 1975, s 6(1)(d) and (2) – maximum penalty: eight years’ imprisonment.
2 Section 6(1)(c) and (2) – maximum penalty: life imprisonment.
3 New Zealand Police v Adams [2023] NZDC 12689.
mouths and applied the flame, causing them to inhale the smoke. He did this for both victims a number of times. R was holding C’s hand while she inhaled the methamphetamine. When they were done, the appellant placed the end of the straw into the bag and into victim C’s mouth, telling her to suck out the powder. The victims were then given more alcohol.
[8] At around 5pm, the victims made an excuse to leave the appellant’s home. The youngest victim could not walk and had to be assisted.
[9] Around 7pm, the police were contacted, and they found the two victims in a significantly intoxicated state. They were taken to hospital in a highly agitated state. They were both sedated and kept in hospital overnight.
District Court decision
[10]Mr Adams was sentenced by Judge Robinson on 21 June 2023.
[11] When assessing the starting point, he said the factors that stood out about the offending were, first, the age and vulnerability of the victims, second, that there was at least a degree of coercion in relation to the younger complainant and, third, the harm that resulted.
[12] The Judge had regard to the authorities cited by defence counsel, in particular R v Arthur.4 In that case, the supply of between 0.4 and 0.7 of a gram of methamphetamine to four teenagers resulted in a starting point of three years. He also considered the decision of R v Woolridge, saying there was a parallel to this case as there was at least a degree of pressure being applied where a 16-year-old was supplied methamphetamine.5 In that case it was said the starting point would have been two years, but was uplifted to two and a half to reflect the fact the defendant was an authority figure and the minor was vulnerable.
[13]In the Judge’s view, the supply of methamphetamine was the lead charge, with
Woolridge being the best comparator case. The Judge took into account counsel’s
4 R v Arthur [2005] 3 NZLR 739 (CA).
5 R v Woolridge CA41/06, 6 July 2006.
submission that Woolridge needs to be reinterpreted in light of the decision in Zhang v R where this offending would fall into the bottom band.6 However, he believed that Zhang would not detract from the fundamental principle that supply to young, vulnerable persons, needs to be met by way of a moderate term of imprisonment. For that reason, the Judge considered there should be a starting point of two and a half years for the methamphetamine offending alone. When taking into account the cannabis offending, and adjusting for totality, the starting point was three years’ imprisonment.
[14] There was then an uplift of five per cent for prior convictions for previous drug related offending.
[15] Mr Adams was then held to be entitled to credit of 20 per cent for his guilty plea and 10 per cent for cultural and background factors.
[16] When the five per cent uplift was set off against the discounts, the end sentence was 27 months’ imprisonment.
Principles on appeal
[17] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
6 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[18] Ms Saunderson-Warner for the appellant submitted that the starting point of three years’ imprisonment was excessive, saying both the two and a half year starting point for the charges of suppling methamphetamine and the six-month uplift for the charges of supplying cannabis were too high.
[19] Counsel advised she was unable to find any recent authorities for supplying methamphetamine which shared similar characteristics to the present case, noting the two decisions of Arthur and Woolridge are significantly dated. While Judge Robinson identified Woolridge as being the best comparator, counsel submits that the starting point adopted in Woolridge was directly influenced by the view that, ordinarily, there would have been a starting point of two years’ imprisonment and Mr Woolridge’s offending was aggravated due to the fact the minor was vulnerable and he had abused his position as a figure of authority. At the time of this case, the relevant band from Arthur was two to four years’ imprisonment for low level supply. Since then, there have been developments in sentencing for methamphetamine offending and in Zhang, it was determined that band one no longer has a lower end of two years’ imprisonment.
[20] Ms Saunderson-Warner submits that as this was a one-off supply involving very small quantities of methamphetamine with no commercial element, this was a very low end of band one case. Counsel accepts that the victims were particularly young and vulnerable and harm was caused. However, Mr Adams had never met the complainants and had not assumed any responsibility in relation to them and there was no breach of trust. As established in the cultural report, Mr Adams had a prolonged addiction to substances and had a traumatic upbringing. Further, Mr Adams was not attempting to stupefy the victims or offend against them in other ways, it was just an entirely wrong-headed decision by an addicted user.
[21] Counsel submits that had the supply been to adult users, the outcome would likely have been a fine or community work. Given the supply was to young people and harm was caused, counsel submits that a starting point of around 15-18 months’ imprisonment would be appropriate for the methamphetamine charges. With regards
to whether an uplift should be applied for the cannabis charges, counsel submits that an uplift is not necessarily required and the starting point of 15-18 months might be considered sufficient to reflect the totality of the offending. If an uplift is thought necessary however, counsel submits that the overall starting point should not exceed 20 months’ imprisonment and therefore the global starting point was clearly excessive.
[22] Further, counsel submits the end sentence was also excessive. The five per cent uplift was for previous convictions that were different in nature being commercial supply of methamphetamine. Only a 20 per cent credit for guilty pleas was allowed despite the fact that other charges had been withdrawn and there was a 10 per cent credit for background factors which was not, in counsel’s submission, generous given the links between his background and this offending.
[23] Applying this same uplift and credits however, the end sentence counsel says should have been imposed is between 11 and 15 months’ imprisonment.
Respondent’s submissions
[24] Mr Power, for the respondent, first discussed the decision R v Ward.10 In that case, the appellant pleaded guilty to supplying cannabis to a 14-year-old girl. In that decision the Court of Appeal referred to R v Rameka which observed that the supply of cannabis to minors added significantly to the gravity of the charge.11 The court also noted that penalties short of imprisonment had been insufficient to achieve deterrence and said the supply of cannabis to a person under 18 required a deterrent sentence. Mr Power submits that the Court of Appeal decision of R v Ward has not been overruled and is still relevant for sentencing purposes.
[25] The respondent rejects the appellant’s submission that there should be no uplift for the supply of cannabis, or if there was, it should be a nominal uplift of two months, saying that this approach appears to ignore the decision in Ward.
[26] The respondent submits the appellant is wrong to describe the offending as a “one-off” supply of cannabis. The offending involved the appellant supplying
10 R v Ward CA378/96, 8 November 1996.
11 R v Rameka CA240/96, 25 July 1996.
cannabis to the 14 year old at around 11:00am and then four and a half hours later, supplying cannabis to both victims. He not only supplied the cannabis but took an active part in preparing the cannabis and assisting them to consume it.
[27] In Arthur, the Court of Appeal rejected the appellant’s submission the starting point of three years was too high where a teacher supplied small quantities of methamphetamine at his home at a party.12 Further in Woolridge, where the appellant supplied methamphetamine to a 16-year-old relative while at a motel on a business trip, a starting point of two and a half years was held to be appropriate reflecting the fact the supply to a minor as well as the appellant’s position of authority. The respondent submits that this case involves a much younger child (12 years) and a younger one (14 years), than in Woolridge and could be seen as more serious.
[28] While the appellant references Zhang and submits that this would be at the very low end of band one,13 the respondent submits this is inappropriate as there were other aggravating features, primarily including the supply to two vulnerable teenagers and also the purchase and supply of alcohol. The three year starting point could not, in these circumstances, be said to be manifestly excessive.
[29] Finally, in respect of the guilty plea credit, the respondent submits the case against the appellant was very strong, if not overwhelming, the appellant did not plead guilty at the first opportunity and Judge Robinson was correct to award a 20 per cent credit.
Analysis
[30] The key issue for determination in this appeal is whether the starting point of three years’ imprisonment was excessive. This three-year starting point includes the two and a half year starting point for the methamphetamine charges as well as the six-month uplift for the cannabis supply charges.
[31] There was no dispute that the supply of methamphetamine charges were the lead charges. The starting point for that offending has to be set by reference to the
12 R v Arthur, above n 4.
13 Zhang v R, above n 6.
guidelines established by the Court of Appeal in Zhang.14 The quantity of methamphetamine is an important measure of culpability or blameworthiness.15 This is because the quantity of methamphetamine involved can indicate commercial dealing and it is also a measure of harm done to the community. In this case, the amount of methamphetamine would place Mr Adams within band one, being a quantity of less than five grams. However, as this was not a commercial operation, Zhang does not provide much more guidance.
[32] Counsel have submitted the decisions of Arthur and Woolridge are now somewhat dated. I accept that is correct. However, I do not accept the principle that the supply of methamphetamine to minors is a seriously aggravating feature has changed. In Arthur, supplies of between 0.4 and 0.7 of a gram of methamphetamine to four teenagers resulted in a starting point of three years. In Woolridge, which was considered to be the most analogous by the District Court, the supply to a 16-year-old so she could try methamphetamine attracted a starting point of two years and a half.
[33] Another relevant case, although again dated, is R v Mark where Chambers J took a starting point of 18 months for the supply of 0.04 g of methamphetamine and then uplifted it by six months for three charges of supplying cannabis, where one of those charges involved supply to his 13 year old son. In doing so, he observed that “Parliament and the Courts have looked with special concern at those who supply cannabis to young people”.16
[34] There is no dispute this case falls within band one in Zhang which allows sentences of zero to four years’ imprisonment. This provides the sentencing Judge greater flexibility than was available with the starting points provided in Arthur and in R v Fatu,17 where the lower end of band one was two years. In adjusting the breadth of sentence available in band one, the Court in Zhang observed that “judges must be more willing to set a starting point below the range specified in Fatu for a band where culpability (other than in terms of quantity) is low”.18 They went on to say “Access to
14 Zhang v R, above n 6.
15 At [104].
16 R v Mark HC Whangarei, T0200037 14 January 2003 at [23].
17 R v Fatu [2006] 2 NZLR 72 (CA).
18 Zhang v R, above n 6, at [123].
the lower sentencing starting points may be expected only by those whose role is found to be lesser in degree, and where quantities are at the lower end of the available range”.19
[35] While there is no doubt that in the present case the quantity involved was very small, the culpability was significant. Both the victims were young, and in the case of the supply to the 12 year old, Mr Adams knew she was 12, but this did not dissuade him. I consider this is a seriously aggravating factor. While there is no significant breach of trust here as Mr Adams was not, for example, a teacher or family member, there is a modest element of breach of trust whenever an adult has unsupervised children in their presence and offends against them as here. A starting point of two to two and a half years was clearly warranted to reflect the youth of the two victims, the aggravating feature of supplying alcohol to them both at the same time as supplying methamphetamine, and the harm done to the victims as set out in the victim impact statement and the counsellor’s report for the youngest victim.
[36] The next issue is whether the six month uplift for the cannabis-related offending was warranted. In my view, this was a high uplift when considering the cannabis offending was inextricably linked to the methamphetamine offending and essentially duplicated the same aggravating factors. An uplift of three months would have been adequate to reflect this and the principle of totality. However, that is not to say the Judge was wrong or that the end sentence was manifestly excessive.
[37] Ms Saunderson-Warner suggests a five per cent uplift was not warranted for prior history saying other offences were for commercial supply of methamphetamine which was different to the present offending. However, it is clearly related offending and reflects a pattern of selling, supplying and using cannabis and methamphetamine in recent times. The uplift was relatively modest and was available to the Judge.
[38] In terms of the discount of 20 per cent for guilty plea, again this was within the range available to the sentencing Judge. While Mr Adams pleaded guilty once some charges were removed, there is no suggestion that he was prepared to plead guilty to the remaining charges at an earlier point. As was said in R v Hessell, “first reasonable
19 At [123].
opportunity means what it says. The maximum discount is appropriate only for those who are prepared to acknowledge their guilt at the outset.”20
[39] While counsel does not actively challenge the 10 per cent credit for personal/background matters, I am readily satisfied it was appropriate, particularly noting the limited causative contribution between the matters identified in that report and the current offending.
[40] In summary, the only area where I would have departed from the Judge’s sentencing decision is in the size of the uplift for the cannabis offending having regard to the principle of totality. However, that would only alter the end sentence by just over two months. This is insufficient for me to reach the view that the end sentence was manifestly excessive. It was not.
Conclusion
[41]For the above reasons, the appeal is dismissed.
Solicitors:
Crown Solicitor, Dunedin
Copy to:
S A Saunderson-Warner, Barrister, Dunedin
20 R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298, at [32].
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