Atkins v Police

[2022] NZHC 61

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2021-416-10

[2022] NZHC 61

BETWEEN

LARA MICHELLE KIMIORA ATKINS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 January 2022 (via VMR)
Appearances:	W R Hawkins for Appellant C Stuart for Respondent
Judgment:	1 February 2022

JUDGMENT OF ISAC J

[Appeal against sentence]

Introduction

[1]        Ms Atkins appeals a sentence of two years and three months’ imprisonment imposed by Judge Cathcart on:

(a)four charges of possession of methamphetamine for the purpose of supply;1

(b)three charges of offering to supply methamphetamine;2 and

(c)two charges of supplying methamphetamine.3

1      Misuse of Drugs Act 1975, ss 6(1)(f), and (2)(a); maximum penalty of life imprisonment.

2      Section 6(1)(c) and (2)(a); maximum penalty of life imprisonment.

3      Section 6(1)(c) and (2)(a); maximum penalty of life imprisonment.

ATKINS v NEW ZEALAND POLICE [2022] NZHC 61 [1 February 2022]

[2]        The principal submission on behalf of the appellant is that the District Court failed to apply a sentencing methodology consistent with the Court of Appeal’s decision in Moses v R,4 and failed to provide sufficient reductions to reflect the role of addiction in the offending and for remorse.

The offending

[3]Sentencing proceeded based on an agreed summary of facts.

[4]        On 10 November 2020 police executed  an  arrest  warrant  in  relation  to  Ms Atkins’ partner. He was located in a motel room in Gladstone Road, Gisborne. On police arrival Ms Atkins was located in bed with her partner. Police observed in plain view on a chair a large quantity of unused plastic snaplock bags and a cutdown plastic straw.

[5]        A subsequent search of the motel revealed a rolled-up sock underneath a pillow on the bed containing a bag with 25.8 grams of methamphetamine. For the purposes of sentencing, it was accepted that Ms Atkins and her partner had obtained the methamphetamine together and were intending to sell half each to their own customers (equating to 12.9 grams each). Police also located $20,140 in cash in a backpack belonging to Ms Atkins’ partner, and a further $1,242.50 in his wallet. The backpack also contained a set of digital pocket scales and cellphone. On the floor next to the bed was a police radio scanner.

[6]        Police also located a further 11.1 grams of  methamphetamine in  a bag  in  Ms Atkins’ jacket pocket, along with a significant quantity of unused smaller plastic snaplock bags. Another bag in the defendant’s jacket pocket contained 3.5 grams of methamphetamine, but as its purity was less than one per cent both the parties, and the District Court, ignored it for sentencing purposes. Police also located a further

$7,542.60 in cash in Ms Atkins’ clothing and bags.

4      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

[7]        Ms Atkins’ cellphone was later searched and communications revealed further methamphetamine dealing. It consisted principally of offers to supply, and two instances of actual supply totalling a further 10 grams.

[8]The agreed summary of facts also recorded:

The defendant’s Facebook Messenger conversations in October 2020 also show that she owed a $15,000 methamphetamine debt to [her partner] which she paid off in parts. The total quantity attributable to that level of debt is around 1½ ounces, or 48 grams.

[9]        Counsel for Ms Atkins and the Crown were able to confirm that the Facebook Messenger conversations between the appellant and her partner represented additional methamphetamine dealing by the appellant beyond the quantities noted at [5]and [6] above. As noted by the summary of facts, Ms Atkins’ sentencing proceeded on the basis that the total quantity of methamphetamine dealing in issue was 80 grams. This quantity was assessed “on a conservative basis”.

District Court decision

[10]      The Judge considered that the offending fell within band two of Zhang5 (supply of commercial quantities between 5 and 250 grams), attracting a starting point between two and nine years’ imprisonment.6 While Ms Atkins may have had little awareness of the scale of the operation behind her, the Court recognised that she was directly involved in acquiring wholesale quantities of methamphetamine.7 The Judge settled on a starting point of four and a half years’ imprisonment but reduced this to four years to reflect Ms Atkins’ addiction and, it seems, diminished culpability.8

[11]      The Judge then imposed a “modest” uplift of two months to reflect previous drug-dealing convictions.9

5      Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648 at [125].

6      R v Atkins [2021] NZDC 18495 at [18].

7 At [21].

8 At [25].

9 At [26]. In 2015, Ms Atkins was sentenced to three years and four months’ imprisonment for methamphetamine related offences.

[12]      The Judge then provided the following discounts for personal mitigating factors:

(a)a “full discount” for early guilty pleas equating to 12 and a half months;10

(b)a further deduction of five and a half months to reflect Ms Atkins’ “substantial efforts” toward rehabilitation;11 and

(c)a further five month deduction to recognise personal circumstances raised in a section 27 report.12

[13]      The Judge refused to accept that there should be any discrete deduction for remorse.13 He viewed Ms Atkins’ letter explaining her offending as “too little, too late”, noting that she had written a similar letter when appearing before the court for previous drug dealing offending.

[14]      These deductions brought the starting point of 54 months14 down to a final sentence of 27 months.15 An order was made, by consent, to forfeit $7,542.60 that was found in Ms Atkins’ possession during the police search.16

Submissions

Appellant

[15]      Mr Hawkins, for Ms Atkins, submits that the sentence imposed of 27 months is manifestly excessive, contending that a sentence of 22 to 24 months is appropriate.

10 At [27].

11 At [29].

12     At [34]–[36].

13 At [35].

14 I have taken the starting point as 54 months based on the Judge’s conclusion of a four and a half- year sentence of imprisonment. It appears from the sentencing remarks, however, that the Judge may have considered the revised starting point to have been 48 or 50 months, based on his calculations.

15 At [37].

16 At [38].

[16]      Mr Hawkins submits that the Judge incorrectly applied the Moses methodology. The appellant relies on Tarau v Police, where an appeal was allowed on the basis that a failure to follow the Moses approach was accepted by this Court as an error of approach.17

[17]      Mr Hawkins also submits that inadequate weight was given to the s 27 report, and that a discount in the range of 15–20 per cent was appropriate (up from the 10 per cent discount given by the Judge). He also notes that while the discount made for rehabilitative steps was adequate, a further reduction of five per cent should have been provided for remorse and the time the appellant spent on restrictive bail conditions.

Respondent

[18]      Mr Stuart, for the respondent, submits that while the Judge may not have perfectly followed the approach in Moses, he nevertheless arrived at a sentence that was well within range. It follows that there was no material error in the end sentence.

[19]      Mr Stuart argues that no more than a 10 per cent discount could be allowed for personal circumstances and that there was “no compelling causative link” between the difficulties Ms Atkins experienced as a child and young person and her drug dealing.

[20]      He submits that the Judge was correct to refuse a discount for remorse, noting that Ms Atkins had in 2015 been convicted of commercial methamphetamine dealing and had then persuaded the Court and the pre-sentence report writer of her “sincere remorse”.18 However, on this occasion the report writer observed that her “remorse and insight into the impact her offending has on the community was limited”.

[21]      Further, Mr Stuart submits that there was nothing unusual or onerous about Ms Atkins’ bail conditions which were a residential condition with a night-time curfew, while being the caregiver for young children.

17     Tarau v Police [2021] NZHC 1793.

18     Atkins v Police [2015] NZHC 1836 at [17].

Standard of Appeal

[22]      Appeals against sentences 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 be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should have been imposed.19 In Tutakangahau v R the Court of Appeal stated, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.20 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive”.21

Relevant law

[23]      The Court of Appeal in Moses v R described a two-stage approach to sentencing in these terms:22

[46]A two-step methodology should be used:

(a)the first step … calculates the adjusted starting point, incorporating aggravating and mitigating features of the offence;

(b)the second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

[47]      Because the court fixes all second-step uplifts and discounts by reference to the adjusted starting point under this methodology, it makes no difference to sentence length if the guilty plea discount is the last step in the sentence calculation. However, the sentencing judge should still quantify a guilty plea discount, for several reasons: the discount is justified in substantial part by systemic and social considerations distinct from the offender’s personal circumstances; the discount must be transparent, which aids predictability; and the calculation allows others, including the offender and the victim, to identify the sentence that would have been imposed but for the plea. It should be apparent that the discount does not exceed the maximum of 25 per cent of the adjusted starting point.

19     Criminal Procedure Act 2011, ss 250(2) and 250(3).

20     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

21     Ripia v R [2011] NZCA 101 at [15].

22     Moses v R, above n 4.

Discussion

Issue 1 – leave to appeal out of time

[24]      Ms Atkins was sentenced on 16 September 2021. The Notice of Appeal was filed on 26 November 2021, outside the 20 working-day appeal period.23 New counsel had to be instructed and I understand a fresh application for legal aid was made. The Crown does not oppose leave to appeal and there does not appear to be any prejudice as a result of the delay. Accordingly, leave is granted.

Issue 2 – the sentence appeal

[25]      In order to succeed on her appeal Ms Atkins must establish two points. First, she must establish an error of approach on the part of the Judge. In addition, she must demonstrate that any such error led to a manifestly excessive sentence. In other words, the error must be material to the sentencing outcome.

[26]      While I am satisfied that the sentencing methodology applied by the Judge did not strictly conform with the two-stage approach contemplated by Moses, and is likely to constitute an error, the difficulty for Ms Atkins is that any error broke in her favour.

[27]      First, the Judge provided a discrete discount of over 10 per cent to  reflect  Ms Atkins’ “addiction”. It is not entirely clear if this deduction was made at stage 1 or 2 of the Moses analysis, but it appears the Judge took it into account as a mitigating factor under stage 2. Regardless, in addition to this discount the Judge added a further reduction of five and a half months to reflect the appellant’s rehabilitative efforts. Combined, this was a 21 per cent reduction from a starting point of 54 months.

[28]      Given the appellant’s relatively recent previous convictions for dealing methamphetamine, and the level of commerciality involved in the index offending, recognised by the Judge as the acquisition and sale of wholesale quantities, the importance of addiction in setting the starting point is reduced. As the Court of Appeal concluded in Moses:24

23     Criminal Procedure Act 2011, s 248(2).

24     Moses v R, above n 4 at [62].

We are prepared to accept that [Ms Moses] was addicted, but that does not explain offending on this scale. Her motivation was financial.

[29]      This observation is also applicable to Ms Atkins. A total reduction of 10–15 per cent only for addiction and rehabilitative efforts could not have been criticised on appeal. The total deduction provided by the Judge of 21 per cent was therefore extremely generous.

[30]      Second, I agree with Mr Stuart that no more than a 10 per cent discount was warranted for the matters raised in the s 27 report given this was her second foray into serious drug dealing within a five year period, and at the age of 53. Given the circumstances of the 2015 offending,25 Ms Atkins’ recent drug dealing appears to have constituted a significant escalation in commercial dealing.

[31]      Nor is there anything in the criticism of the Judge’s conclusion that a discrete discount for remorse was unavailable. There was nothing beyond the plea itself to suggest further credit was warranted. And I agree with Mr Stuart that the conditions of bail did not warrant any discrete credit at sentencing.

[32]      Standing back and looking at the end sentence, I have concluded there can be no criticism of it. The adopted starting point of four and a half years’ imprisonment was clearly within the available range. Given an end sentence of two years and three months’ imprisonment after mitigating factors, Ms Atkins received a total discount of 50 per cent to reflect personal mitigating factors including her guilty plea. On any view, that was a merciful approach.

[33]      Finally, the Judge gave a modest two month uplift for aggravating factors personal to the appellant, being her previous offending. In July  and August 2015  Ms Atkins was sentenced on charges of:

(a)possession of methamphetamine for supply;

(b)a representative charge of supplying methamphetamine;

25     See n 26 below.

(c)seven charges of offering to supply methamphetamine;

(d)two charges of conspiracy to supply methamphetamine; and

(e)three charges of perverting the course of justice.

[34]      She received a total sentence of three years and four months’ imprisonment following appeal.26

[35]      The relative proximity and seriousness of the prior offending warranted a discrete uplift of up to six months given Ms Atkins’ previous sentence of imprisonment did little to deter further offending.

[36]      Combined, I am satisfied that any error in approach by the District Court has not resulted in any adverse sentencing outcome for Ms Atkins. I am therefore not satisfied that any error was material, or that the sentence imposed was manifestly excessive.

Result

[37]The appeal is dismissed.

Isac J

Solicitors:

Bramwell Bate, Hastings for Appellant

Crown Solicitor’s Office, Gisborne for Respondent

26 Atkins v Police, above n 18. At [6] this Court noted that the total quantity of dealing was believed by Police to have been up to 20 grams, being a quarter of the quantity in issue in the index offending. In her earlier offending, Ms Atkins appears to have acted as a mid-level dealer, providing methamphetamine to a number of street level dealers, including her son. The charges of perverting the course of justice related to Ms Atkins successful efforts to have associates claim ownership of quantities of drugs she possessed. One of them was imprisoned for the false admission.