Anslow v Crown Law Office

[2016] NZHC 2596

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000031 [2016] NZHC 2596

BETWEEN

CLIFFORD JOHN ANSLOW

Appellant

AND

CROWN LAW OFFICE Respondent

Hearing:	27 October 2016
Appearances:	T Sutcliffe for Appellant J ETarrant for Respondent
Judgment:	31 October 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 31 October 2016 at 4.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

ANSLOW v CROWN LAW OFFICE [2016] NZHC 2596 [31 October 2016]

Introduction

[1]      Just after midnight on 25 July 2015 Clifford Anslow was arrested at a service station in Huntly and a search warrant executed on his vehicle.  The police found

16.4 grams of methamphetamine, a second bag containing 0.164 grams of methamphetamine, scales, empty ziplock bags and $5,500 cash in a bag belonging to Mr Anslow’s passenger.   Production orders previously obtained on Mr Anslow’s phone had disclosed evidence of dealing.

[2]      Mr Anslow was charged with possessing 16.4 grams of methamphetamine for supply and with supplying between 12.25 and 19.8 grams of methamphetamine and offering to supply between 4 and 16 grams of methamphetamine in the period between March 2014 and January 2015.  He pleaded guilty to all the charges.

[3]      In sentencing Judge Burnett took a starting point of four years four months which she uplifted by eight months for previous drug offending.1   She allowed two months’ credit for Mr Anslow’s time on EM bail and a discount of 17 per cent for his guilty plea.  The end result was a sentence of four years’ imprisonment.  In addition, the Judge imposed a period of disqualification that would result in Mr Anslow having to re-sit his driver’s licence upon completion of his sentence.

[4]      Mr Anslow appeals the term of imprisonment on the basis that it is manifestly excessive as a result of the Judge failing to give adequate credit for his guilty plea, remorse and efforts at rehabilitation.  No issue is taken with the starting point, nor with the disqualification.

Discount for rehabilitative efforts

[5]      The PAC report provided on sentencing referred to Mr Anslow’s serious methamphetamine addiction, his remorse and the steps he was taking to address his addiction.  The report writer assessed Mr Anslow as likely to pose a low level of harm and at medium-low likelihood of re-offending if he could remain drug free and recommended home detention to allow strict monitoring over his rehabilitative progress over time.

1      In 2005 Mr Anslow was imprisoned for nine years with a minimum period of imprisonment of four years for possessing methamphetamine for supply.

[6]      At sentencing Mr Sutcliffe, for Mr Anslow, produced two drug tests, both negative, dated 21 April and 12 May 2016, together with a letter of initial appointment with the Addictions Service at Wairau Hospital dated 26 April 2016. Mr Anslow was also able to provide numerous references testifying to his good character (apart from his drug offending).   Finally, following the appeal hearing Mr Anslow’s counsel, Mr Sutcliffe, confirmed that Mr Anslow had attended the Drug Treatment Unit (DTU) before his release on the previous sentence, though he did not provide a certificate nor other information regarding Mr Anslow’s attitude to the programme and progress within it.

[7]      The Judge referred to the submission made on behalf of Mr Anslow that the steps he had taken while on EM bail to deal with his addiction should be taken into account on sentencing.   When she actually undertook the sentencing exercise, however, the Judge made no mention of that aspect.  It is therefore unclear whether she overlooked dealing with it or whether she intended to exclude it from consideration.

[8]      The Court of Appeal has made it very clear that the primary concern on sentencing in cases of commercial drug dealing is deterrence and that consideration prevails over the personal circumstances of an offender.2    That is not to say that personal circumstances can never be taken into account and there have been cases in which extraordinary efforts at rehabilitation have been recognised by way of a discount.3     Ordinarily, however, limited or initial steps towards rehabilitation are unlikely to attract a discount.

[9]      Taking  steps  to  address  problems  of  addiction  are  always  laudable  and Mr Anslow is to be commended for doing so.  However, it is evident that the DTU programme was not effective in addressing Mr Anslow’s addiction and, moreover, the further steps that he relies on as justifying a reduction for rehabilitative efforts are initial steps and appear not to have been taken until after he was charged and at about the time he indicated his intention to accept responsibility for the offending. These steps do not justify a discount so, even if the Judge had overlooked addressing

2      R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [16]; Clunie v R [2013] NZCA 110.

3      See e.g. R v Jackson [2013] NZHC 2194; R v de Serville HC Auckland CRI-2006-004-18441; R

v Egan [2008] NZCA 102; Hastings v R [2011] NZCA 105.

this point, the outcome would have been the same.  This ground of appeal therefore fails.

Guilty plea credit

[10]     Mr Anslow was charged on 25 July 2015.  There was a first trial callover on

25 February 2016.  In March 2016 Mr Mabey QC, then acting for Mr Anslow, wrote to the Crown indicating Mr Anslow’s intention to plead guilty to the charges.  There were ongoing discussions about the summary of facts and he finally entered his guilty pleas on 5 May 2016.   The Judge indicated her intention to recognise the guilty plea with a discount of between 12 and 15 per cent, though Mr Sutcliffe advised that, on his calculation, the discount the Judge actually applied was 17 per cent.  He suggested that a discount of 20 per cent would have been fair.

[11]     Mr Sutcliffe also tendered a letter from Mr Mabey to Mr Anslow containing advice  regarding  a  guilty  plea.    Mr  Mabey  recorded  that  he  had  advised  the prosecutor of Mr Anslow’s intention to plead guilty in April/early May and then noted “there will be no issue with the 25 per cent credit for your guilty plea.”  There is, however, no record of any such concession by the Crown.  The prosecutor is said not  to  recall  any  such  conversation  and  there  is  no  file  note  by  either  her  or Mr Mabey. In the circumstances I cannot place any weight on this aspect.

[12]     In any event, the sentencing Judge would not have been bound by any such understanding between counsel and I do not consider that the Judge’s approach was in error.  On any view, Mr Anslow’s indication, through counsel, of his intention to accept responsibility for the offending eight months after being charged did not justify a 25 per cent discount. The discount actually given was unobjectionable.

Result

[13]     I do not consider that the sentence was manifestly excessive.  The appeal is dismissed.

P Courtney J