Adams v The King
[2024] NZHC 2367
•22 August 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-161 CRI-2024-409-162
CRI-2024-409-163 [2024] NZHC 2367
BETWEEN TONY DEAN ADAMS
Appellant
AND
THE KING
Respondent
Hearing: 22 August 2024 Appearances:
J D N MacLeod for Appellant
B W D Alexander for Respondent
Judgment:
22 August 2024
ORAL JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
ADAMS v R [2024] NZHC 2367 [22 August 2024]
Introduction
[1] Following guilty pleas, Tony Dean Adams was sentenced to five years’ imprisonment by Judge Kellar on 11 June 2024.1 His offending involved two separate sets of offences. The charges within the first set are:
(a)burglary;2
(b)possession of cannabis;3
(c)possession of methamphetamine;4
(d)possession of methamphetamine utensils;5
(e)failing to comply with search obligations.6
[2]The second set of charges are:
(a)supplying methamphetamine (representative);7
(b)selling cannabis (representative);8
(c)possession of methamphetamine for supply;9
(d)possession of cannabis for supply;10
(e)unlawful possession of firearms (representative);11
1 R v Adams [2024] NZDC 13484.
2 Crimes Act 1961, s 231(1)(a) — maximum penalty of 10 years’ imprisonment.
3 Misuse of Drugs Act 1975, s 7(1)(a) and (2) — maximum penalty of three months’ imprisonment,
$500 fine.
4 Section 7(1)(a) and (2) — maximum penalty of six months’ imprisonment, $1,000 fine.
5 Section 13(1)(a) and (3) — maximum penalty of one year imprisonment, $500 fine.
6 Search and Surveillance Act 2012, s 178 — maximum penalty of three months’ imprisonment.
7 Misuse of Drugs Act, s 6(1)(c) and (2) — maximum penalty of life imprisonment.
8 Section 6(1)(e) and (2) — maximum penalty of eight years imprisonment.
9 Section 6(1)(f) and (2) — maximum penalty of life imprisonment.
10 Section 6(1)(f) and (2) — maximum penalty of eight years’ imprisonment.
11 Arms Act 1983, s 45(1) — maximum penalty of four years’ imprisonment, $5,000.00 fine.
(f)unlawful possession of a restricted weapon;12 and
(g)unlawful possession of ammunition.13
[3] Mr Adams says on appeal that the sentence imposed was manifestly excessive. He advances two specific grounds, first, that the uplift of 15 per cent for previous criminal convictions was too high and secondly, that the Judge should have allowed a credit for his rehabilitative prospects.
Facts
[4] In relation to the first set of charges, sometime between 6.30 am and 7.00 am on 15 April 2023, the appellant and an associate were at the Sign of the Kiwi Café on Summit Road. The appellant was in the driver’s seat of his vehicle waiting outside the café whilst the associate broke down the front door in an attempt to gain entry. The associate also entered a garage at the address, taking various items before getting back into the passenger seat of the car. Mr Adams then drove away with speed. Police located him a short time later and completed a vehicle stop. Police located a lock picking set, a window punch tool and a large number of motor vehicle keys. They also located 18.3 grams of cannabis leaf, 0.15 of a gram of methamphetamine and a small hatchet axe. In the rear seat of the vehicle, Police located a paintball gun and an imitation BB pistol. Whilst in custody, a plastic container containing a glass pipe with methamphetamine residue was found concealed in the appellant’s underwear. The appellant was requested to provide his phone PIN code, but he refused to do so. He was ultimately released on electronically monitored bail (EM bail).
[5] At a later date, Police received information indicating that drugs were being sold from the appellant’s property. A production order targeting the mobile phones of both the appellant and his partner was obtained. Data analysed on the appellant’s phone for the period 9 August to 9 November 2023 showed he was regularly dealing both methamphetamine and cannabis. During this period, he made 51 identified drug deals through text message, 26 of which were linked to the selling of
12 Section 45(1) — maximum penalty of four years’ imprisonment, $5,000.00 fine.
13 Section 45(1) — maximum penalty of four years’ imprisonment, $5,000.00 fine.
methamphetamine, three to the selling of cannabis and 22 could not be attributed to either drug. As I have indicated, at the time the appellant was subject to 24-hour EM bail. He was also serving a sentence of intensive supervision.
[6] Police subsequently obtained a search warrant for the property and, on execution of that warrant on 10 January 2024 located two shotguns, various rounds of ammunition, two homemade tasers disguised as water pistols, four quantities of methamphetamine totalling 90.64 grams, several quantities of cash totalling over
$6,870.00, five small quantities of cannabis totalling 18.68 grams, a large quantity of plastic bags, three sets of electronic scales, multiple cell phones, numerous glass and rubber bongs, cannabis grinders, glass pipes and an empty laundry detergent container with a false bottom used to conceal items. There was also an elaborate camera set up at the address with screens in the lounge and bedroom. That set up included an audio and alert system that forewarned when someone was coming up the drive.
District Court decision
[7] Judge Kellar identified the lead sentences as the possession for supply and the supply of methamphetamine. He referred to the guideline judgment of Zhang v R confirming that the quantity of the drugs as well as the offender’s role in the criminal enterprise were relevant in assessing culpability.14 The Judge observed that the total quantity of methamphetamine involved in Mr Adams’ offending was 90.64 grams. As regards commerciality, the Judge referred to the cash found alongside plastic bags, cell phones and the camera set up indicating the appellant was a solo street-level dealer. The Judge assessed the offending as falling within band two of Zhang and adopted a starting point of four years’ imprisonment for the methamphetamine offending.
[8] A two-month uplift was applied for “the cannabis offending”. A further uplift of one year and six months was imposed for the “unlawful possession of weapons et cetera”, an eight-month uplift was imposed for the burglary offence and finally, a two-month uplift for what was described as the remaining charges.
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[9] The Judge then considered the totality principle and adopted an adjusted starting point of six years’ imprisonment. A 15 per cent uplift was applied to reflect the appellant’s criminal history and a further five per cent uplift to reflect that he had offended both whilst on EM bail and sentence. Mr Adams was allowed a 20 per cent deduction for his guilty pleas and a five per cent deduction for his willingness to engage in restorative justice. Finally, the Judge allowed a 10 per cent deduction to reflect what was assessed to be a causal connection between the offending and Mr Adams’ methamphetamine addiction and various background factors. The overall end sentence was one of five years’ imprisonment. That sentence was imposed on the Class A drug dealing charges.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.15 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.16 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.17
Submissions
Appellant’s submissions
[11] Mr MacLeod on behalf of Mr Adams does not take issue with the starting point adopted by the Judge or with the credits allowed for the guilty pleas and background factors. He submits however that the Judge fell into error in imposing a 15 per cent uplift for previous criminal convictions. Mr MacLeod highlights that although
15 Criminal Procedure Act 2011, s 250(2) and (3).
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].
17 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
Mr Adams has an extensive criminal history, he has no history of either drug dealing or of firearms-related offending. It is acknowledged he has drug use and possession convictions, but it is submitted those are of minimal relevance to the subject offending and are simply indicative of Mr Adams being a long-term drug user. Mr MacLeod submits it is contradictory to apply an uplift for what was described as drug-related offending, but then to allow a credit, as the Judge did for recognised drug addiction.
[12] Mr MacLeod acknowledges Mr Adams has relevant prior dishonesty convictions including convictions for burglary, but submits that, in context the Sign of the Kiwi burglary, could not warrant a 15 per cent uplift having regard to the eight-month sentence of imprisonment that the Judge applied in relation to that offence.
[13] A distinct and second ground of appeal advanced is that the Judge should have allowed a credit for Mr Adams’ rehabilitative prospects. Particularly, Mr MacLeod highlights that at sentencing, the Court was alerted to the opportunity for the appellant to attend the Odyssey House rehabilitation facility. The Judge was, however, not prepared to adjourn sentencing and to grant EM bail to Odyssey House given Mr Adams had offended whilst subject to EM bail. Nevertheless, Mr MacLeod submits that the fact Mr Adams was offered a bed at that facility when considered alongside other reports indicating his rehabilitative prospects, means that a discrete credit should have been allowed.
Respondent’s submissions
[14] Mr Alexander for the Crown acknowledges that the 15 per cent uplift for prior convictions was stern, described as the high-end of the range, but submits that uplift should be balanced against what was described as a “relatively modest” uplift of five per cent imposed for offending whilst subject to sentence and on EM bail. Mr Alexander submits that uplifts of 20 per cent or more are regularly upheld on appeal.18
18 Lavea v R [2014] NZCA 192 at [24]; Benson v R [2013] NZCA 39 at [10]-[11]; R v Wilson [2008]
NZCA 496 at [13].
[15] As regards the second ground of Mr Adams’ appeal, Crown counsel submits the Judge did not err in declining a credit for rehabilitative prospects. Mr Alexander submits the Judge was quite entitled to do so, given Mr Adams’ extensive criminal history and the fact that his rehabilitative prospects had to be balanced against the fact that he was serving a sentence of intensive supervision when he offended.19 Mr Alexander observes that Mr Adams has been afforded multiple opportunities to rehabilitate in the past but to date without success.
Analysis
Uplift for previous convictions
[16] In fixing an uplift for previous criminal convictions, the Judge simply observed that the appellant had “some relevant criminal history including drug-related offending which justifies a 15 per cent adjustment”.
[17] The Crown had proposed a six-to-nine-month uplift as appropriate to reflect three personal aggravating factors — Mr Adams’ previous criminal history; offending on bail; and offending while subject to sentence. On my calculations that equates to between seven and 12 per cent of the starting point range advanced by the Crown. Mr MacLeod, in the District Court, had acknowledged that a modest uplift was available to reflect the three personal aggravating factors but submits the level of uplift fell below that proposed by the Crown.
[18] In Reedy v Police Dunningham J observed that an uplift may be justified where previous convictions bear on character and culpability or indicate a predilection to offend in a specific way, or where there was a need to protect society through a deterrent sentence.20 In R v Wilkinson I referred to the purpose of an uplift as being to “reflect that a defendant has previously been undeterred from sentences imposed for similar offending and presents a risk of reoffending”.21 The Court of Appeal in Burton confirmed that substantial uplifts for aggravating factors including previous convictions may be necessary to respond to calculated offending by recidivists.22
19 R v Adams, above n 1.
20 Reedy v Police [2015] NZHC 1069 at [19].
21 R v Wilkinson [2022] NZHC 1774 at [32].
22 Burton v R [2018] NZCA 355 at [42].
[19] An uplift should not be imposed simply by reference to the fact of an offender’s previous convictions. A default position of imposing an uplift in those circumstances would be to re-punish an offender for past offending.23 If an uplift is to be imposed, it should reflect a considered response to specific aspects of an offender’s previous criminal history.24 Generally, an uplift will be only warranted if the previous convictions indicate some tendency to commit the particular type of offence for which the offender is before the Court.25
[20] Mr Adam’s extensive record of previous convictions bears closer examination. His criminal history, excluding the current offending, runs to some 21 pages. Over ten pages record his history in the Youth Court. As at the date of the offending the subject of this appeal he was serving a sentence of intensive supervision following his conviction for aggravated driving while disqualified, burglary, receiving and thefts — that is not drug related offending. His most recent drugs related convictions were for possession offences committed in May 2021. For that offending he was convicted and discharged. Prior to that he was convicted for drug and drug utensil possession offending in April 2019. He was then sentenced to either one or two-month terms of imprisonment to be served concurrently with a 12-month sentence imposed for what I calculate to be his 34th offence of driving while disqualified.
[21] In total Mr Adams has accumulated ten convictions for possessing or procuring controlled drugs or possessing drug utensils over the past 10 years or so. Three of those convictions relate to cannabis, one to ecstasy and six to methamphetamine. His adult criminal history is otherwise littered with driving offences (approximately 35), dishonesty offences including burglaries (approximately 34), and breaches of sentence and release conditions (approximately 15).
[22] The offending the subject of this appeal, as acknowledged by Mr Adams in his pre-sentence report, reflects his transition from committing burglaries and car thefts and other dishonesty offending in order to fund his drug addiction to drug dealing from home to serve that purpose. He somewhat ironically says that is a consequence of the
23 R v Casey [1931] NZLR 594 (CA) at [597].
24 O’Connor v R [2014] NZCA 328 at [41].
25 Jones v R [2021] NZCA 402 at [33]; Beckham v R [2012] NZCA 290.
restrictions of EM bail. I do not think there is any doubt the current offending was driven by drug addiction.
[23] Mr MacLeod is right to highlight the absence of any firearms or ammunition convictions and more particularly the absence of any drug dealing convictions. That category of offending is at the heart of Mr Adams’ most recent offending. Had he been appearing for burglaries, receivings or for aggravated disqualified driving, no doubt a significant uplift would have been justified.
[24] I acknowledge the current offending does include drug possession charges, but that offending is very much secondary to the drug dealing and firearms offending and of itself would not likely have given rise to a sentence of imprisonment. Mr MacLeod is right in my view to submit that drug dealing, and drug possession ought not be considered as falling within the same category of offending. I do not regard those offences as “similar” in the context of evaluating whether an uplift for prior convictions is appropriate.
[25] I do not consider an uplift was required to deter Mr Adams. It is the lengthy sentence imposed for his Class A drug dealing — a sentence that is well over double any previous sentence to which he had been sentenced that operates to achieve both personal and public deterrence.
[26] If an uplift was called for, I consider the 15 percent applied by the Judge, which equates to 11 months’ imprisonment on the starting point of six years, was too high. As I have observed, drug possession would not ordinarily attract a sentence of imprisonment. An uplift at the level imposed would be plainly disproportionate to reflect Mr Adams’ prior drug possession convictions. Given the uplift that was applied for the Sign of the Kiwi burglary of eight months’ imprisonment, an 11-month uplift to reflect prior convictions for burglary and other dishonesty offending would also, in my view, be disproportionate.
[27] I agree that Mr Adams’ extensive history does demonstrate the risk he presents of reoffending. That history might be seen as reflecting his bad character and therefore justifying an uplift. However, having regard to the lengthy sentence that was imposed,
and that the offending was accepted to be addiction driven, and Mr Adams expresses his willingness to re-engage with his addiction issues, I am not satisfied that an uplift was a considered response to Mr Adams’ criminal history. I therefore agree with Mr MacLeod that the 15 per cent uplift has given rise to a manifestly excessive sentence.
[28] Appropriately, Mr MacLeod does not challenge the five per cent uplift to reflect that the appellant offended not only while on EM bail but while subject to sentence. I agree with Mr Alexander that particular uplift was modest and could have been higher.
Rehabilitative prospects
[29] I turn to the second ground of appeal, that is Mr Adams’ rehabilitative prospects. I am not satisfied the Judge erred in not allowing a discrete credit for those prospects. I accept that there was material before the Judge that indicated some rehabilitative prospect. In particular, Mr Adams had been offered a bed at Odyssey House and there were other reports referred to by counsel that include confirmation that Mr Adams had previously undertaken a residential stay at Odyssey House.
[30] The short point is that Mr Adams was serving a rehabilitative sentence of intensive supervision when he committed serious drug dealing and firearms offending.
[31] The Judge accepted there was a causal connection between addiction and the offending and allowed a 10 per cent deduction for that factor. But that the appellant engaged in serious offending while on a rehabilitative sentence provides a reasonable basis for the Judge to decline a credit for future rehabilitative prospects.
[32] That said, Mr Adams is of course encouraged to demonstrate his expressed desire to engage in further rehabilitation by taking up any opportunities presented to him whilst serving the lengthy sentence of imprisonment. At the point of his eventual release, it will be up to him to take advantage of opportunities presented to commit to a rehabilitative path.
Result
[33] The appeal is allowed. The sentence of five years’ imprisonment imposed on the charges of supplying methamphetamine and the possession of methamphetamine for supply are quashed and substituted with a sentence of four years and two months’ imprisonment.
[34] Mr Adams’ criminal history records that he was sentenced to a concurrent sentence of five years’ imprisonment on a charge of possession of cannabis for supply and a sentence of two years’ imprisonment on a charge of supplying cannabis. The sentences as recorded must be an error. In his sentencing notes, the Judge says that the cannabis offending warranted a two-month uplift. Both counsel are agreed that the criminal history record and the notations on the charging documents upon which that record is based must be in error and that I ought to remedy that error. Accordingly, I quash the sentences imposed for the cannabis supply charges and I substitute in each case a concurrent sentence of two months’ imprisonment. All other sentences remain the same, as recorded in Mr Adams’ criminal history.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
C D Eason, Barrister, Christchurch
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