Arlidge v Police
[2014] NZHC 2202
•11 September 2014
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2014-425-24 [2014] NZHC 2202
BETWEEN OSCAR JIMMY GOLD ARLIDGE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 September 2014
(By way of audio visual link)
Appearances:
F E Guy Kidd for Appellant
S N McKenzie for RespondentJudgment:
11 September 2014
JUDGMENT OF MANDER J
[1] Oscar Arlidge appeals against a sentence of 2 years and 8 months imprisonment imposed on him in respect of drug dealing offences involving LSD, ecstasy and cannabis. It is submitted the sentence was manifestly excessive.
[2] A Police operation was conducted in the Wanaka area in the latter part of
2013. The appellant supplied an undercover police officer on three occasions with tabs of LSD for which he was paid a total sum of $3,620. On one of those occasions he supplied 100 tabs for $1,700. On another occasion he offered to supply a further
100 tabs of LSD, however on subsequent analysis these were found not to contain that substance. Mr Arlidge also supplied the undercover police officer with
3.5 grams of ecstasy for a price of $1,500, and made a further separate offer to supply that drug. Additionally, he offered to supply cannabis. To these charges, Mr Arlidge pleaded guilty.
[3] The appeal is brought on the basis that the starting point adopted in the
District Court was too high and that inadequate discount was given for mitigating
ARLIDGE v NEW ZEALAND POLICE [2014] NZHC 2202 [11 September 2014]
factors. It is submitted this resulted in an end sentence which was manifestly excessive.
Starting point
[4] The ground of appeal based on an excess starting point can quickly be disposed of. Judge Turner considered an appropriate starting point for the Class A dealing offences as being 4 years. To that he added a 7 month uplift for the Class B and C drug dealing offences. Mr Arlidge’s complaint focussed on Judge Turner’s assessment that the gravity of the offending was in the higher range when his offending was limited only to transactions with the undercover agent. The difficulty for Mr Arlidge however is that on a comprehensive review of applicable sentencing authorities, the appellant’s criticism distils to a submission that a starting point of no more than 4 years and 6 months was available. An argument based on the difference of 1 month between the starting point taken by the sentencing Judge and that contended for on appeal in relation to a sentence of such length is not attractive.
[5] In oral submission, Mr Arlidge focussed on a remark made by Judge Turner relating to his preparedness to supply further amounts of ecstasy beyond the
3.5 grams the subject of the supply charge. It was submitted that the Judge had misconstrued a statement made by Mr Arlidge in reference to the supply of cannabis. Having read the summary of facts, I am satisfied that the District Court Judge’s observation was one he was entitled to come to. In any event, little turns on that limited point having regard to the fact that the appellant appears to have stood ready to continue to supply the constable with drugs, albeit he was not prepared to involve the undercover officer more closely in his dealing, refusing to put him in contact with his supplier.
[6] Ultimately, the starting point adopted by the sentencing Judge has to be assessed against whether the final starting point arrived at was within the range available to the Judge, rather than an examination of its component parts. Taking an uplift of 7 months, rather than 6 months, for the cannabis and MDMA offending does not constitute an error.
Reduction for mitigating factors
[7] Mr Arlidge submits that the discount of 12 months from the starting point of
4 years and 8 months, representing a 21.82% reduction, was inadequate having regard to the nature and extent of the mitigating features which applied to his case.
[8] Mr Arlidge has no previous criminal convictions. He has previously participated in voluntary environmental work and has assisted a blind family member. Many testimonials attested to his good character and kind nature. Reference was made to the linkage between the greater potential for rehabilitation
and a person’s previous community involvement and good character.1 After the
entry of guilty pleas, Mr Arlidge commenced the Salvation Army Bridge Programme in Wellington. He successfully completed this programme, and it is apparent that he has insight and commitment to a drug-free life. He has addressed his addiction, and it is submitted this very positive development should attract significant credit.
[9] On appeal, it is submitted that the sentencing Judge fell into error when he observed that personal characteristics are of secondary importance when sentencing for drug dealing offences. Reliance is placed on dicta in R v Guthrie,2 to the effect that while personal circumstances of drug dealers will normally be subordinate to the statutory purpose of deterrence that does not mean personal circumstances can never be relevant. Reference was made to other cases where substantial discounts have been extended to offenders in recognition of their rehabilitative efforts, good character and remorse.3
[10] Finally, it was submitted Judge Turner erred in his assessment of the information relating to Mr Arlidge’s undiagnosed ADHD condition. In that regard, it was submitted that the Judge failed to take into account features of the appellant’s offending which were consistent with this condition and that he failed to recognise
the connection between Mr Arlidge’s ADHD and what is described as its “material
1 R v Findlay [2007] NZCA 553 at [91]; R v Davidson [2011] NZCA 356 at [16].
2 R v Guthrie [2008] NZCA 439 at [17], citing Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
3 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381; R v Whitehead [2013] NZHC 217.
contribution to his offending”. Reliance was placed on a number of cases which it was submitted support greater recognition of ADHD as a mitigating factor.4
[11] I do not accept that Judge Turner erred in his assessment of the mitigating factors that applied to Mr Arlidge. Judge Turner in some detail acknowledged Mr Arlidge’s positive background, the absence of previous convictions at the age of 28 years, and the significant change in his presentation as a result of becoming drug- free through his rehabilitative efforts in attending the residential Bridge programme. Mr Arlidge’s remorse for his drug use and drug dealing activities was expressly acknowledged.
[12] In terms of Mr Arlidge’s ADHD, Judge Turner analysed the information that was available to him from Dr Edwards and Dr Barry Walsh. The fact that the Court’s have recognised the disorder in terms of its relationship with substance abuse and drug dependence was acknowledged. Judge Turner however considered that it did not explain his drug dealing, which was described as premeditated, planned and carefully orchestrated. That conclusion has been challenged on appeal on the basis that his condition contributed to him not considering the consequences of his actions.
[13] In my view, the sentencing Judge was entitled to describe Mr Arlidge’s offending in the way that he did. It occurred, as Judge Turner observed, at a time when Mr Arlidge was unable to work and selling drugs was a means by which he could support his drug use and general lifestyle. The sentencing Judge expressly recognised the linkage between Mr Arlidge’s ADHD and his drug addiction. However, given the length and nature of Mr Arlidge’s drug dealing activities which showed him to be careful and forensically aware, the ADHD, while relevant, does not explain the premeditation and planning inherent in his illegal activities. As already observed, Judge Turner accepted the linkage between ADHD and Mr Arlidge’s drug use, and I have not been brought to a conclusion that he erred in not going further in accepting that Mr Arlidge’s undiagnosed condition significantly
explained and therefore mitigated his drug dealing conduct.
4 R v Gallie HC Auckland CRI-2010-044-514, 20 September 2011; R v Weir HC Auckland CRI-
2011-057-1203, 18 October 2011; R v Sopp HC Auckland CRI-2007-004-6428, 2 October 2007.
[14] Judge Turner’s observation that the Courts have made it clear that personal characteristics are of secondary importance when sentencing for drug dealing offences is correct. Priority is given to deterrence, both general and personal, particularly in respect of Class A drug dealing offending. I do not view the sentencing Judge’s approach to personal characteristics or circumstances in the context of drug dealing offending as being inconsistent with the observations of the
Court of Appeal in R v Guthrie.5 Indeed, it is apparent that Judge Turner considered
Mr Arlidge’s personal circumstances to be of considerable relevance to the
sentencing exercise. I therefore find that criticism unfounded.
[15] Mr Arlidge’s rehabilitative efforts and life-changing intervention were recognised by Judge Turner. Mr Arlidge’s low risk of reoffending, and the successful rehabilitative steps that Mr Arlidge has taken were expressly acknowledged by the sentencing Court as reducing his risk of reoffending and the need for personal deterrence.
Was the sentence manifestly excessive?
[16] The essence of Mr Arlidge’s complaint is that insufficient discount was afforded to him for the personal mitigating factors which applied in his case. On appeal, cumulative component percentages were sought to attach to previous good character, rehabilitation, his ADHD condition and remorse. This was in addition to the 25% discount that he had received for the entry of early guilty pleas. In making that submission, comparison was sought to be made with other cases where greater discounts were extended for a combination of mitigating factors.
[17] The sentencing Judge referred to cases which were relied upon on appeal, in particular R v Kingi6 and R v Whitehead7 and R v Hill.8 In those cases, discounts for mitigating factors were afforded of between 25-40%. There are however other cases. In R v Gallie,9 an offender sentenced on charges of possession for supply of a variety
of drugs, received a discount of around 16-17% for mitigating factors such as a
5 R v Guthrie, above n 3; Jarden v R, above n 2.
6 Kingi v R [2013] NZCA 393.
7 R v Whitehead, above n 3.
8 R v Hill, above n 3.
9 R v Gallie, above n 4.
difficult childhood including ADHD, remorse, rehabilitative steps including programmes and counselling and abstinence from drugs and alcohol which was added to a 25% discount for early guilty pleas. In R v Weir,10 only a 9% discount was applied to a sentence imposed for commercial cannabis dealing and cultivation to recognise rehabilitation, reintegration, remorse, family support and health issues including ADHD. R v Sopp11 is another case where the offender’s difficulties with dyslexia and ADHD which made him vulnerable to drug abuse, and recognition of rehabilitative efforts resulted in a 14-15% discount.
[18] In the present case, Mr Arlidge was afforded a 21.82% discount from the starting point of 4 years and 7 months in addition to a full 25% credit for his early guilty plea; a total discount of 46.82%. Mr Arlidge contends on appeal that a discount of between 35-40% should have been applied on top of the 25% discount for the guilty plea. I consider that to be unrealistic. As was observed by the
Supreme Court in Hessell v R,12 the proper application of punishment for offending
is an evaluative task for sentencing Judges. While the Supreme Court was focussed on the issue of credit for guilty pleas and issues relating to remorse, in declining to accept a rigid mathematical approach to the assessment of credit, the Court emphasised that the sentencing task remains one of evaluation that “leads to what the Judge is satisfied is the right sentence for offending in light of the offender’s
acknowledgment of guilt and all other relevant circumstances”.13
[19] Inevitably, each case turns on its own circumstances and the combination of factors, both aggravating and mitigating, which may apply in each individual case. Rehabilitative efforts are to be encouraged and the opportunity taken by an offender when apprehended to break an addiction which may lie behind the drug dealing is to be positively endorsed. The present case is an example of that. By pleading guilty and taking advantage of a residential drugs programme, Mr Arlidge, a person otherwise of good character, has demonstrated his ability to put his drug dealing behind him. The sentencing Court acknowledged that significant commitment by
affording him a discount in the region of 47%. As already noted, that recognises his
10 R v Weir, above n 4.
11 R v Sopp, above n 4.
12 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
13 At [65].
reduced risk of reoffending and the lesser need for individual deterrence in his case. The fact remains however that general deterrence, consistency in sentencing and condemnation of trafficking in Class A drugs is still required to be reflected in the ultimate sentence imposed. In my view, Judge Turner has struck that balance.
[20] It may be that another sentencing Court may have afforded greater credit. Equally, another Court may very well have been more influenced by the limited extent to which personal circumstances can reduce a sentence for dealing in Class A drugs. The ultimate sentence imposed of 2 years and 8 months was within the range of sentence available to the Judge in the exercise of his sentencing discretion, notwithstanding the mitigating features which Mr Arlidge could point to in support of a reduced sentence.
[21] As recognised by counsel, the critical question on appeal is whether the effective sentence properly reflects the totality of the offending and the circumstances of the offender.14 Ms Guy Kidd on behalf of Mr Arlidge has said all that can be said on appeal on behalf of Mr Arlidge, but I have not been brought to the point where I can say the sentencing Judge erred in his approach, nor that the sentence ultimately imposed is manifestly excessive. The appeal is dismissed.
Solicitors:
AWS Legal, Invercargill
Preston Russell Law, Invercargill
14 R v Xie [2007] 2 NZLR 240 (CA).
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