Austin v The King
[2024] NZHC 786
•12 April 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-24
[2024] NZHC 786
BETWEEN STEVEN JAMES AUSTIN
Appellant
AND
THE KING
Respondent
Hearing: 9 April 2024 Appearances:
C G Nolan for Appellant
W J S Mohammed for Respondent
Judgment:
12 April 2024
JUDGMENT OF MANDER J
This judgment was delivered by me on 12 April 2024 at 11.30 am pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
AUSTIN v R [2024] NZHC 786 [12 April 2024]
[1] Steven Austin was sentenced by Judge Kellar in the Christchurch District Court to three years and two months’ imprisonment1 on representative charges of supplying and offering to supply methamphetamine;2 possession of methamphetamine;3 and cultivation of cannabis.4 The sentence was also imposed in respect of a representative charge of breaching a protection order5 and two charges of unlawfully possessing firearms.6
[2] Mr Austin appeals that sentence. He alleges the starting point adopted by the Judge was manifestly excessive and that insufficient credit was provided for personal mitigating factors.
Background
[3] In March 2023, the police seized a mobile phone used by an associate of Mr Austin. The subsequent analysis of this phone revealed Mr Austin’s involvement in dealing methamphetamine.
[4] On 20 February 2023, the associate asked Mr Austin how much it would cost to purchase an ounce (28g) of methamphetamine. Mr Austin replied that the price would be between $6,000 and $6,500, depending on whether the associate could wait for Mr Austin to source cheaper product. In a communication later that month, the associate asked Mr Austin if he would supply him with methamphetamine on a deferred payment basis. Mr Austin replied he needed to resupply.
[5] On 4 March 2023, the associate asked Mr Austin how much he wanted for a motorcycle. He offered a .22 calibre firearm for the motorcycle and 0.5g of methamphetamine. Mr Austin accepted the deal and, on 22 March 2023, advised his associate that he would come to his residence to conduct the trade. That same day, the associate asked Mr Austin for the price of an ounce of methamphetamine. Mr Austin
1 R v Austin [2024] NZDC 887.
2 Misuse of Drugs Act 1975, s 6(1)(c) — maximum penalty life imprisonment.
3 Section 7(1)(a), (2) — maximum penalty six months’ imprisonment.
4 Section 9(1) — maximum penalty seven years’ imprisonment.
5 Family Violence Act 2018, ss 98(1)(a) & 112(1)(b) — maximum penalty three years’ imprisonment.
6 Arms Act 1983, s 45(1)(b) — maximum penalty four years’ imprisonment.
responded that, due to pressures in supply, he could procure an ounce for $7,000. The following day, the two men conducted the firearm trade at Mr Austin’s residence.
[6] On 28 March 2023, Mr Austin sent the associate an image of the firearm with the modifications he had made to the weapon. He had cut the rifle down to pistol length and installed a pistol grip and suppressor. It had a 10 round magazine fitted with a semi-automatic firing mechanism. Mr Austin commented to his associate that the firearm was very quiet when fired, which suggested he had sourced ammunition and had actually used the weapon. In early August, Mr Austin sold the firearm to another associate who was arrested with the weapon in his possession while fleeing police.
[7] Between 11 August and 4 September, Mr Austin made 16 offers to supply methamphetamine to five different people. Nine offers were for amounts totalling 11.25g and seven were for unspecified amounts. Of the 16 offers, seven resulted in actual supply, with at least 2.25 g being provided. Communications showed that Mr Austin purchased between 3.5g to 7g every day or second day.
[8]On 5 September, police executed a search warrant at Mr Austin’s address. A
.22 rifle with a round of ammunition in the firing chamber was located. A search of phone data revealed that Mr Austin had attempted to sell the firearm some weeks prior. In a bedroom of the address, police found 12 small cannabis plants at an early stage of growth. Traces of dried cannabis and packaging materials showed the room had been used for previous cultivations. The cultivations appeared to be geared towards personal consumption as a phone search yielded no indication of commercial dealing.
[9] Beside Mr Austin’s bed, police located a point bag containing around 2g of methamphetamine. Point bags, scales, glass pipes and lighters were also found and, when arrested, Mr Austin was found in possession of $433 cash, $400 of which was made up of $50 bills.
District Court sentence
[10] Applying the guideline judgments of Zhang v R7 and Berkland v R,8 Judge Kellar concluded (with the agreement of counsel) that, based on the combined quantity of methamphetamine, Mr Austin’s offending placed him in the lower end of the Band 2 category for methamphetamine dealing that attracts sentences of between two and nine years’ imprisonment. In terms of the role or profile of Mr Austin’s dealing activities, the Judge concluded he fell into the lesser category. He was described as being a persistent street dealer who was, at least in part, funding his own habit, with limited financial gain, with there being no indication of him having any influence on anyone within the supply chain. After referring to one of a number of sentencing authorities referred to him, the Judge adopted a starting point of three years and six months’ imprisonment for the methamphetamine offending.9
[11] The Judge accepted the cannabis cultivation was unsophisticated and involved relatively few plants with no evidence of sales. Six months’ imprisonment was added for that offending. In relation to the firearm charges, the Judge took a starting point of two years’ imprisonment, citing Campbell v R10 and Byles v R.11 The resulting cumulative starting point of six years’ imprisonment was then reduced to four and a half years’ imprisonment after applying the totality principle to ensure the overall sentence was not wholly disproportionate to the overall gravity of the offending.
[12] In relation to personal factors, the Judge noted Mr Austin’s previous convictions that involved drugs and at least one charge of possessing an offensive weapon in respect of which non-custodial sentences were imposed. It was observed that those convictions were indicative of drug addiction and that, while some small uplift may have been appropriate, in the circumstances the Judge did not consider that necessary.
[13] The sentencing Judge traversed the details of a report prepared pursuant to s 27 of the Sentencing Act 2002 and an alcohol and drugs report. It was noted Mr Austin
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
8 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
9 Scott v R [2022] NZHC 2274.
10 Campbell v R [2022] NZCA 579.
11 Byles v R [2013] NZCA 18.
had completed an eight-week Bridge rehabilitation programme but had since relapsed. Mr Austin’s drug and gambling dependency issues that were detailed in the reports, were noted and that, as a result, Mr Austin remained at high risk of offending. A 10 per cent credit was extended to reflect addiction difficulties and a further 20 per cent deduction applied in recognition of Mr Austin’s guilty pleas that were entered at the case review hearing. This resulted in the end sentence of three years and two months’ imprisonment. He was convicted and discharged on the breach of protection order charges.
Approach to appeal
[14] An appeal against sentence will only succeed 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.12 When assessing whether the sentence the subject of the appeal is “manifestly excessive” the focus will be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.13 The court will not intervene if the ultimate sentence is within the available range and is one that can properly be justified on the application of relevant sentencing principles.14
The appeal
[15] Mr Austin relies on two grounds for the purpose of demonstrating the end sentence was manifestly excessive:
(a)the starting point adopted was too high; and
(b)insufficient credit was provided for personal mitigating factors.
[16] The challenge to the starting point adopted by the Judge for the methamphetamine offending focussed on the sentencing Judge’s reliance on the earlier sentencing authority of Scott v R, where the appellant had pleaded guilty to one charge
12 Criminal Procedure Act 2011, s 250(2) and (3).
13 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].
of supplying methamphetamine, a charge of offering to supply the drug, and charges of unlawfully possessing a firearm and ammunition.15 Over the course of a month, the appellant in that case supplied 64.75 g of methamphetamine with offers to supply a further 40g of the drug. The firearm charges involved a cutdown firearm and 97 rounds of .22 ammunition found in the appellant’s vehicle. A starting point of four years’ imprisonment for the methamphetamine charges was uplifted by a further 12 months for the Arms Act charges.
[17] On behalf of Mr Austin, Mr Nolan submitted that Scott was a more serious case, involving greater amounts of methamphetamine that were sold to generate significant financial gain. In contrast, it was submitted Mr Austin’s profit was put towards feeding his addiction. In relation to the firearms charges, Mr Nolan referred to a number of other cases which he submitted demonstrated a lower uplift should have been imposed for those charges.16
[18] Mr Nolan also challenged the uplift of six months for the cannabis offending. It was noted this offending fell within category 1 of the guideline judgment, R v Terewi, which applied to cultivations that involved the growing of a small number of cannabis plants for personal use without any sale. Such offending would ordinarily attract either a monetary penalty or, in more serious cases, a community-based sentence or short prison term.17 Citing a number of decisions of this Court which confirmed that sentences at the lower end of the sentencing hierarchy were appropriate for this type of offending, it was submitted that for an offence which if standing alone would only ordinarily attract a financial penalty, the uplift of six months’ imprisonment in the present case was manifestly excessive.18
15 Scott v R, above n 9.
16 Pona v R [2020] NZHC 3503; Scott v R, above n 9, at [41]; Pryor v Police [2022] NZHC 1011 at [23]; Griffin v R [2020] NZHC 548 at [16]; Mills v R [2016] NZCA 245 at [18]–[22]; Haggie v R [2011] NZCA 221 at [23].
17 R v Terewi [1999] 3 NZLR 62 (CA) at [4].
18 Begbie v Police [2022] NZHC 3107 at [11]; Leaupepe v Police [2016] NZHC 76 at [28]; Marshall v Police [2019] NZHC 2304 at [16].
[19] In relation to the issue of greater credit for the role of Mr Austin’s background in his offending, a number of other authorities were cited in aid of a submission that a credit of some 20 per cent should have been applied.19
Analysis
The starting point
[20] It is indisputable that the case of Scott involved more serious methamphetamine offending. However, the sentencing Judge himself was cognisant of this fact when he noted that case involved “much more” methamphetamine.20 I accept the Crown’s submission that the present offending was broadly comparable insofar as it involved the supply, or offering to supply, 69.5g of methamphetamine over a six month period and that, while Mr Austin’s activities had a lesser level of commerciality, it is notable he was prepared to offer to supply as much as 28g in one transaction. This suggests a certain level of commercial trading.
[21] The Crown referred to Gotty v R,21 which was a case that involved the appellant supplying 2.95g of methamphetamine and offering to supply a total of 38.8g. Mr Gotty was also charged with the supply of an unknown amount of cannabis. For that drug offending a starting point of three years’ imprisonment was adopted. Mr Austin’s drug offending broadly falls somewhere between Scott and Gotty, and the starting point adopted of three years and six months’ imprisonment for his methamphetamine offending is broadly in line with those two cases. However, there were the further uplifts for the cannabis and firearm offending.
[22] In relation to the cannabis cultivation charge, the Crown referred to Broadmore v Police in support of a submission that the six-month uplift was stern but within range.22 In that case, a starting point of 15 months’ imprisonment for the appellant’s first cannabis cultivation offence was combined with an uplift of six months for his second offence when a further nine cannabis plants were found. The plants were for
19 Dunn v Police [2020] NZHC 316 at [25]; Hughes v R [2022] NZHC 2835 at [37]; Byrne v R [2022] NZHC 897 at [49].
20 R v Austin, above n 1, at [21].
21 Gotty v R [2020] NZHC 2035.
22 Broadmore v Police HC Dunedin CRI-2010-412-36, 27 October 2010.
the appellant’s personal consumption, as is accepted was Mr Austin’s motivation. The appellant in Broadmore was on bail at the time the cannabis plants were discovered. But, against that, Mr Austin was found in possession of a greater number of plants.
[23] In relation to the firearms offending, the sentencing Judge added two years’ imprisonment. The Crown placed reliance on the Court of Appeal’s observation in Campbell v R, that possession of a single firearm generally calls for a starting point of between two and three years’ imprisonment.23 Reference was also made to that Court’s approach in Byles v R, which involved the cutting down of a .22 rifle so it could be held with one hand for what could only be nefarious purposes.24 As a result, a starting point of two years’ imprisonment was described as being comfortably within range. It is apparent that the modification of the firearm in the present case was a factor that influenced the Judge’s approach. He observed there was no conceivable legitimate reason for the alteration of the firearm, which made it easier to conceal and to use for criminal purposes.
[24] The sentencing authorities appear to distinguish between standalone sentences for firearms offending and “uplifts” made in conjunction with sentencing for other offending, usually drug-dealing. The Court of Appeal has indicated that uplifts of 12 to 18 months are appropriate for firearms offending associated with drug-dealing.25 It may, therefore, arguably be thought the additional two years’ imprisonment added to the starting point was excessive but that must be measured against the final step taken by the sentencing Judge before settling on the overall starting point. In addressing that issue, the Judge stated:26
[26] In terms of the starting points, I have started, for the methamphetamine offending, with a term of imprisonment of three years and six months, added just six months to that for the cannabis offending and added to that two years’ imprisonment for the firearms offending and one would impose concurrent sentences for the breaches of protection order. That is a total sentence of imprisonment of six years. I need to stand back from that to ensure that the overall sentence is not wholly disproportionate to the overall gravity of the offending. I agree with the Crown that on a totality basis an appropriate starting point reflecting the overall seriousness of the offending is a term of four years and six months’ imprisonment.
23 Campbell v R, above n 10, at [18].
24 Byles v R, above n 11, at [5].
25 Mills v R, above n 16, at [18].
26 R v Austin, above n 1.
[25] Because of that adjustment for totality, I do not consider the overall starting point for all the offending fell outside the range available to the Judge in the exercise of his sentencing discretion. There were a number of aggravating features relating to the possession of the modified semi-automatic firearm which Mr Austin had obviously fired and sourced ammunition for. Furthermore, it is apparent from both that charge and the second Arms Act charge that Mr Austin was dealing in firearms. On the second occasion, the weapon was loaded at the time it was located and seized.
[26] I accept the uplift for the cannabis offending may be considered harsh, but the offending was required to be marked by some penalty which could only be a short term of imprisonment. Given the calibration of the total starting point, which resulted in a term of four years and six months’ imprisonment, I do not consider what may in isolation have been viewed as excessive uplifts for the cannabis and firearms offending to have resulted in the final starting point falling outside the range available for all the charges.
Personal mitigating factors
[27] The second ground of appeal focused on the 10 per cent discount for the causative contribution of Mr Austin’s methamphetamine addiction on his offending. This was referred to by the various report writers and acknowledged by the sentencing Judge. Mr Nolan argued that a discount in the order of 20 per cent ought to have been applied because of Mr Austin’s severe addiction. He cited the case of Hughes v R, where a discount of 20 per cent had been provided for childhood trauma and resulting addiction, combined with positive rehabilitative prospects.27
[28] The s 27 report detailed Mr Austin’s difficult upbringing, which was marked by the acrimonious separation of his parents when he was very young and aggravated by the presence of gang members in his childhood, as well as a transient lifestyle. However, despite his limited education, Mr Austin achieved qualifications as an electrician and chef and has retained the support of family members. The sentencing Judge did not consider there was any real connection between Mr Austin’s background
27 Hughes v R, above n 19, at [37]. The other cases cited in that footnote have credits granted to a similar effect.
and his drug offending. His abuse of methamphetamine started following the development of personal issues in his adult life. It appears involvement in a toxic relationship, a subsequent divorce, and not being able to see his children pushed Mr Austin towards his reliance on methamphetamine. However, it was accepted that Mr Austin’s trafficking of the drug was in part to fund his own addiction.
[29] Mr Austin had previously completed a Salvation Army Bridge Rehabilitation Programme before relapsing into drug use. His addiction is severe. He consumed 0.5g of methamphetamine per day and, at the time of sentencing, had accumulated a
$5,000 debt. The role of addiction in his offending was recognised by the sentencing Judge, as was his willingness to engage in a residential rehabilitation programme, which would be available to him if released into the community. Until Mr Austin’s addiction is addressed, it is apparent he remains at high risk of reoffending.
[30] I accept a greater discount could have been afforded to Mr Austin for the extent to which his offending is rooted in his addiction, but equally, unlike a number of the cases relied upon in support of this ground of appeal, it is not apparent this addiction, and therefore Mr Austin’s dealing activities, are the product of his disadvantaged background. He has in the past demonstrated a capacity to live a constructive life. Notwithstanding his previous relapse and the extent to which his addiction has a grip on his conduct, it is apparent he has potential rehabilitative prospects.
[31] I have closely considered whether some adjustment should be made to this part of the sentence. However, I have concluded that any such alteration would only amount to a minor adjustment that would not render Mr Austin eligible to serve a non- custodial sentence or open the way to attendance at a residential programme. Ultimately, I do not consider the Judge’s decision to only make what is perhaps a modest 10 per cent discount has rendered the final sentence of three years and two months’ imprisonment manifestly excessive. It follows that the sentence appeal must be dismissed.
Result
[32]Appeal dismissed.
Solicitors:
Crown Solicitor, Christchurch
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