Bailey v R

[2021] NZHC 2225

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI 2021-412-000030

[2021] NZHC 2225

BETWEEN

RICKY ADAM BAILEY

Appellant

AND

THE QUEEN

Respondent

Hearing:	27 August 2021 Via VMR
Appearances:	S Saunderson-Warner for Appellant P A Norman for Respondent
Judgment:	31 August 2021

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 31 August 2021 at 2.30 pm.

Registrar/Deputy Registrar Date:

BAILEY v R [2021] NZHC 2225 [31 August 2021]

Introduction

[1]    The appellant, Mr Bailey, was sentenced1 on 17 March 2021 by Judge Large to a term of two years four months’ imprisonment for one charge of supplying a Class A drug namely methamphetamine2, one charge of possessing methamphetamine for supply3 and one charge of possessing cannabis for sale.4

[2]    Mr Bailey appeals his sentence on the basis it was manifestly excessive because the starting point adopted for the methamphetamine charges was too high and the uplift applied for the possession of cannabis for sale charge was also too high.

[3]The respondent submits the sentence imposed by the Judge was within range.

[4]    The appeal was filed out of time and the question of leave must first be considered. No opposition to leave being granted is mounted by the respondent.

Leave to appeal out of time

[5]    The appeal was filed out of time on 5 July 2021. The delay was caused in part by Legal Services assigning Mr Bailey counsel who was not approved to appear on such matters. There was then a delay in finding Mr Bailey an appropriately qualified counsel.

[6]    The respondent accepts these reasons for the failure to file the appeal within time and accepts they suffer no prejudice as a result of these delays.

[7]    I am satisfied in these circumstances that leave to file the appeal out of time should be granted.

Background

[8]    On 12 February 2020 police executed a search warrant at Mr Bailey’s address. Mr Bailey was present with two associates. He directed police to his garage and

1      R v Bailey [2021] NZDC 4971.

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

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

4      Misuse of Drugs Act, ss 6(1)(e) and 6(2); maximum penalty eight years’ imprisonment.

pointed out a quantity of cannabis and methamphetamine. As a result, police located four bags of methamphetamine on the coffee table, total weight 0.931 grams. Also located on the coffee table was a zip-lock bag of good-quality cannabis weighing approximately 6 grams.

[9]    A further search of the garage located a backpack belonging to Mr Bailey. Inside was a total of $3,530 cash, small empty zip-lock “deal bags”, scales and five bags of methamphetamine totalling 2.3 grams. The five bags of methamphetamine all weighed a similar amount and were consistent with a dealing size of 0.5 grams.

[10]   Also inside the bag were six small zip-lock bags of cannabis. They were consistent in size and weight to a deal bag worth approximately $25. A further search of the garage located approximately 2 grams of poor-quality cannabis leaf.

[11]   The total amount of methamphetamine located was 3.231 grams and the total amount of cannabis located was 19 grams.

[12]   On 14 February 2020 a production order was obtained for Mr Bailey’s cellphone number covering the period 13 December 2019 to 13 February 2020. Analysis of text data revealed Mr Bailey was actively supplying and offering to supply methamphetamine to a number of different persons. Between 19 December 2019 and 8 February 2020, he supplied or offered to supply methamphetamine on 18 different occasions. He sold methamphetamine in amounts of 0.25 grams, 0.5 grams, 1 gram and 7 grams. He used common slang terms to refer to the methamphetamine.

[13]   In total, Mr Bailey organised to supply approximately 15.5 grams of methamphetamine over this period. This would have a street value in the vicinity of

$10,000.

District Court decision

[14]   The Judge began with Mr Bailey’s previous convictions. He noted Mr Bailey’s convictions for possessing cannabis in 2009, utensils and methamphetamine in 2012 and conviction and imprisonment for cannabis dealing in 2006.

[15]   The Judge considered the drug and alcohol report and the information that  Mr Bailey had been using methamphetamine to cope with a belief he was going to be diagnosed with multiple sclerosis. The Judge also considered Mr Bailey’s substance dependence and addiction related factors in his upbringing.

[16]   The Judge placed Mr Bailey’s offending in the second band of Zhang v R.5 He found Mr Bailey did not have pressure on him to sell the drugs and instead did it for his own reasons. He took that, and the fact Mr Bailey had a constant flow of sales and offers to supply methamphetamine and viewed this offending as serious.

[17]   The Judge did, however, recognise that Mr Bailey’s offending was in part driven by his own addiction. However, he noted Mr Bailey had shown, whilst on bail, he had the capacity not to need or physically depend on methamphetamine and cannabis.

[18]   The Judge then reviewed the authorities. He found Mr Bailey’s offending more serious than that in Crighton v R6 but less serious than that in Joyce v R.7

[19]   Referring to the amount of methamphetamine found in Mr Bailey’s possession and the number of transactions he was involved in, the Judge adopted a starting point of three years three months’ imprisonment.

[20]   The Judge also imposed an uplift of six months’ imprisonment for the cannabis offending and three months for Mr Bailey’s previous convictions. That brought him to a notional starting point of four years’ imprisonment.

[21]   The Judge then turned to the mitigating factors. He granted a 20 per cent discount for Mr Bailey’s guilty plea and a 10 per cent discount for his alcohol and drug dependency. He considered the restrictive bail conditions Mr Bailey has been subject to and granted another 10 per cent discount.

5      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

6      Crighton v R [2020] NZCA 33.

7      Joyce v R [2020] NZCA 124.

Approach to appeal

[22]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011.

[23]   Section 250(2) of the Act relevantly provides that the Court must allow an appeal if satisfied that:

(a)for any reason there is an error in the sentence imposed; and

(b)a different sentence should be imposed.

[24]The Court must dismiss the appeal in any other case.8

[25]   The appellate court should not intervene where the sentence imposed is within the available range.9 However, the appeal court should substitute its own view if the sentence under appeal is “manifestly excessive” or one that cannot be justified on the application of relevant sentencing principles.10

[26]   The Court of Appeal has repeatedly held that the focus in sentence appeals remains on whether the sentence imposed is within range, rather than the process by which the sentence was reached.11

[27]An appeal court should not engage in mere tinkering.12

Submissions

Appellant’s submissions

[28]   Ms Saunderson-Warner, for Mr Bailey, submitted the starting point adopted by the Judge was excessive. She characterised his offending as that of a street-level dealer

8      Criminal Procedure Act 2011, s 250(3).

9      Tutakangahau v R [2014] NZCA 279 at [36].

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

11     Islam v R [2020] NZCA 140 at [32]; D (CA187/2014) v R [2014] NZCA 373 at [18]; Tutakangahau

v R, above n 9 at [36].

12     Bull v Police [2019] NZHC 1720 at [21]; Ripia v R, above n 10 at [15]; Knedler v Commissioner of Inland revenue [2017] NZHC 2888 at [16]; and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].

who dealt to feed his dependence rather than to accumulate assets. She referred to Tuuta v R,13 Pona v R,14 Tregoweth v R,15 Dunn v Police16 and Manuka v R.17 She submitted the starting point should have been two years three months’ imprisonment.

[29]   Ms Saunderson-Warner submitted the uplift for the cannabis offending was excessive. She suggested the cannabis inside the backpack was the only cannabis that can be linked to dealing, with a maximum street value of just $150. If this had been dealt with in isolation Ms Saunderson-Warner submitted it would have attracted a community-based sentence. She again referred to Manuka v R where an uplift of four months was considered appropriate for more serious cannabis offending.18

[30]   Ms Saunderson-Warner accepted an uplift could be applied for Mr Bailey’s previous convictions but categorised it as “by no means generous”. She submitted the guilty plea discount was warranted and not unduly generous. She submitted further that the five-month discount for Mr Bailey’s addiction and background was low considering the larger credits applied in other cases. She accepted the five-month discount for Mr Bailey’s bail conditions was generous.

Respondent’s submissions

[31]   Ms Norman, for the respondent, submitted the offending fell within band two of Zhang v R, which states a starting point for quantities between 5 to 250 grams is between two to nine years’ imprisonment.19

[32]   Ms Norman undertook a comprehensive review of the authorities concerning the appropriate starting point. She submitted that there appear to be inconsistencies at High Court level and that the Court of Appeal authorities of Zhang,20 Crighton21 and Joyce22 are binding and more instructive than a review of the High Court decisions.

13     Tuuta v R [2019] NZHC 2788.

14     Pona v R [2020] NZHC 3503.

15     Tregoweth v R [2021] NZCA 311.

16     Dunn v Police [2020] NZHC 316.

17     Manuka v R [2020] NZHC 1043.

18     Manuka v R, above n 17.

19     Zhang v R, above n 5.

20     Zhang v R, above n 5.

21     Crighton v R, above n 6.

22     Joyce v R, above n 7.

[33]   Ms Norman submitted that the starting point adopted by the Judge was within range, and that the Judge accurately assessed the quantity involved and the role undertaken by Mr Bailey in characterising Mr Bailey as a “street-level dealer”.

[34]   Ms Norman submitted the uplift for the cannabis offending was within range, albeit at the top of that range. She submitted that, in pleading guilty, Mr Bailey accepted he possessed 19 grams of cannabis for supply.

[35]   Ms Norman further submitted that, if the Court considers the starting point or uplifts were too high, the generous credits afforded to Mr Bailey should be given weight in assessing the totality of the sentence. She submitted the 20 per cent discount for Mr Bailey’s guilty plea was generous given the lateness of his plea, particularly in light of the strength of the evidence against him.

[36]   Similarly, Ms Norman submitted the five-month discount for Mr Bailey’s personal circumstances was generous. She accepted discounts of 15 per cent are commonly awarded but submitted Mr Bailey’s personal circumstances did not establish a causative or analogous history of deprivation nor chronic addiction.

[37]   Finally she submitted that the discount for the length of time Mr Bailey was subject to conditions of bail was generous.

Discussion

Starting Point

[38]   The tariff case for methamphetamine offending is Zhang v R.23 Both counsel agree the relevant band in this case is band two. A starting point of two to nine years’ imprisonment will be appropriate where the dealing involves between 5 and 250 grams of methamphetamine.

[39]   Quantity is relevant because it provides a reasonable proxy for the social harm done by the drug and the illicit gains made from its importation and sale.

23     Zhang v R, above n 5.

[40]   Within that quantity band the Court must have regard to culpability, in particular the offender’s role within the dealing operation. Zhang provides a list of factors relevant to categorising an offender’s role as “lesser”, “significant” or “leading”.

[41]   I consider the following relevant factors apply here in assessing Mr Bailey’s role:

(a)operational or management function in own operation (significant);

(b)some expectation of profit (significant);

(c)motivated by own usage (lesser); and

(d)no influence on those above in supply chain (lesser).

[42]   I agree with the Judge that the constant flow in sales and offers to supply methamphetamine is a serious factor. In essence, Mr Bailey was a self-motivated and small-scale street dealer who made a minor profit from his enterprise. Although he was a user of methamphetamine to “stay awake”, I do not consider he was dependent or addicted to methamphetamine based on his own statements that he could stop when required. His statements to this effect are reinforced by the fact that he did not experience any withdrawal symptoms after waking up in jail. Instead he was using methamphetamine for his own cogent, albeit illogical, reasons.

[43]   Considering all these factors, I conclude Mr Bailey walked the line between a significant and lesser role.

Court of Appeal cases

[44]   In Joyce v R, the offender’s vehicle was stopped by police and 28.35 grams of methamphetamine was discovered.24 They discovered other indications of commercial drug dealing activity, including $12,885 cash and a tick book. Cellphone

24     Joyce v R, above n 7.

messages indicated the offender had supplied or offered to supply a total of 3.76 grams of methamphetamine. The Court of Appeal held that, rather like Mr Bailey, the offender managed and ran his own small-scale drug dealing operation. His role was described broadly as that of a street-level dealer. Also, like Mr Bailey, the offender had his own issues with methamphetamine. His offending did not fit neatly into either the significant or lesser category because it involved elements of both. The Court of Appeal adopted a starting point of four years’ imprisonment to encompass the methamphetamine charges and also a possession of cannabis charge. They imposed a separate uplift of 18 months’ imprisonment for the fact the offender was also found with firearms.

[45]   I consider Joyce reasonably analogous, although the offending there involved greater possession of methamphetamine (32.11 grams versus 18.731 grams) and cash ($12,885 versus $3,530) (though less proven supply). Another distinguishing factor was the firearms element, which was accounted for by the significant 37.5 per cent uplift.

[46]   At first glance, the Judge’s reduction to three years three months from four years appropriately accounts for the difference in quantity across similar roles and was arguably generous considering the greater role addiction and dependence played in Joyce.

[47]   The second Court of Appeal case referred to, Crighton v R, did not involve comparable offending.25 The offender there offered to supply 3.75 grams almost wholly to feed her own addiction. Both quantity and culpability were far less than in Mr Bailey’s case.

[48]   The third relevant Court of Appeal case referred to is Tregoweth v R.26 In that case the offender was arrested by police and 2.8 grams of methamphetamine was discovered in his pocket. He was taken to prison and a further 3 grams was discovered during a strip search. The following day a further 37.3 grams was discovered on his person. The total was 43.3 grams.

25     Crighton v R, above n 6.

26     Tregoweth v R, above n 15.

[49]   The sole issue in that appeal was whether the Judge was entitled to impose an uplift for the fact the offender had methamphetamine in his possession in prison. The Court of Appeal was satisfied this proposition was wrong in principle as the offender had not consciously sought to smuggle. There was no comment on the starting point imposed in the District Court, which appeared to have been agreed by Crown and defence, of two and a half years’ imprisonment. That low starting point recognised the offender’s addiction.

High Court cases

[50]I turn now to the High Court cases provided by Ms Saunderson-Warner.

[51]   In Tuuta v R, the offender was discovered with 16.3 grams of methamphetamine and $4,320 cash.27 He also had a shotgun. A starting point of two to two and a half years’ imprisonment was considered appropriate (excluding an uplift for the firearm). Gault J found, and the Crown conceded, that the offending was firmly within the “lesser” category (including comment that it was at the bottom of that category). No such concession has been made here and I have concluded Mr Bailey’s role was between significant and lesser. This decision predated the Court of Appeal decision in Joyce.

[52]   In Dunn v Police, a 30-month starting point was not disturbed on appeal.28 Seemingly no reasons were given as to how this starting point was reached. The offender there supplied more methamphetamine (24.9 grams) but only did so to provide for her own drug usage. Addiction therefore played a far greater role than it does here and indeed a further discount was warranted. This decision also predated the Court of Appeal decision in Joyce.

[53]   Manuka v R is readily distinguishable as it involved only 9 grams of methamphetamine.29 However, the role was similar as both the offender  there and Mr Bailey offended to fund their usage as opposed to dependence or addiction. A

27     Tuuta v R, above n 13.

28     Dunn v Police, above n 16.

29     Manuka v R, above n 17.

starting point of two years four months’ imprisonment was considered appropriate there.

[54]   The respondent submitted Pona v R ought not to be followed and I agree.30 The starting point there appears low having regard to the cases, and few reasons were given other than a statement that the offender was a “low level dealer”.

[55]   I consider Mr Bailey’s role most similar to that of the offenders in Joyce and Manuka, meaning a starting point between them (reflecting the differing quantities involved) was appropriate. That is what the Judge adopted in Mr Bailey’s case with the starting point of three years and three months. Having reviewed the authorities, I consider that was within the appropriate range available to the Judge.

Uplift for the cannabis offending

[56]   I accept Ms Saunderson-Warner’s submission that the uplift for the cannabis offending was excessive, especially having regard to the four-month uplift for more serious offending in Manuka.

Discounts Guilty pleas

[57]   The Judge gave Mr Bailey a discount of 20 per cent for his guilty pleas. That is on the generous side in circumstances where the charges were not amended. Two other charges were dismissed because there were apparent evidential issues in relation to those charges. It was open to Mr Bailey to plead to the existing charges at an earlier date. Given this I consider the discount was appropriate.

Personal circumstances

[58]   Ms Saunderson-Warner submitted the  10  per  cent  discount  credited  to  Mr Bailey because of his difficult upbringing and his substance dependency was

30     Pona v R, above n 14.

miserly.    She contrasted it with much higher awards where deprivation and drug dependency were proven and attracted as much as 30 per cent.

[59]   In terms of the deprivation in upbringing, she relied on a letter written by Mr Bailey’s parents-in-law, Daryl and Rebecca Kirby. They have known Mr Bailey since he was 14 and described his upbringing as “terrible”. The only detail they give to describe what they mean by “terrible” is that he would often run away from his parents and be “tired” and “hungry”.

[60]   By contrast, Mr Bailey himself told the author of the drug and alcohol report tendered to the Court that although his parents had issues with alcohol “growing up in the family home was otherwise generally safe and nurturing.”

[61]   I prefer the evidence of the independent report writer to that of the Kirbys. Although no doubt sincere, the information they provide is scant and no basis for the Court to find Mr Bailey suffered social or familial deprivation such that it impaired his choices or established diminished moral culpability for his offending.

[62]   As far as Mr Bailey’s drug dependency is concerned, the report writer concluded Mr Bailey has a propensity to use alcohol, cannabis and methamphetamine “sometimes with regularity, excess, and poor outcomes”. Significantly, the report writer also observed that subsequent to the offending Mr Bailey was able to stop the methamphetamine and cannabis use and maintained his alcohol use to that deemed to be at generally safe levels.

[63]   Mr Bailey is a long-term user of cannabis and despite this, according to his partner and in-laws, has managed to be a contributing member of society and a good partner and father.

[64]   In light of these factors I do not consider that the Judge’s credit of 10 per cent for these factors was miserly. It seems within the available range open to the Judge.

Discount for bail

[65]   The 10 per cent credit for just over one year on straight bail with only a night- time curfew seems generous. Such conditions do not sit at the high end of restriction on liberty. Credit is rarely given at sentence for complying with bail simpliciter and I consider this to be another factor where the Judge was generous in the discount he gave.

[66]   I accept Ms Norman’s submission that on a totality basis the Judge’s excessive uplift for the cannabis offending is entirely set off by the discounts he later gave for Mr Bailey’s personal factors and for his time on bail.

Conclusion

[67]   I agree with Ms Norman that the discounts granted by the Judge more than overcame any error in the uplifts and therefore the end sentence of two years four months’ imprisonment was not manifestly excessive.

Additional matter

[68]   In addition, neither counsel has addressed the fact that the sentencing methodology set out by the Court of Appeal in Moses v R has not been followed.31 Had it been followed, Mr Bailey’s sentence would have been two years five months’ months rather than two years four months’ imprisonment.

[69]   The Judge approached sentencing by adding the starting point, the uplift for the cannabis offending and the uplift for Mr Bailey’s previous convictions to form a notional starting point of four years’ imprisonment.

[70]   However, under Moses the notional starting point only includes the aggravating and mitigating factors of the offending. It is then uplifted or discounted by the sum of the aggravating and mitigating factors of the offender.

31     Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.

[71]   Here the aggravating factor of the offending was the additional cannabis charge justifying an uplift. After that was accounted for the notional starting point was three years and nine months. Following that, the sum of the aggravating and mitigating factors of the offender ought to have been calculated. I do so in the following table:

Description
Personal aggravating factors
Uplift for previous convictions	add 3 months (6.6%)
Personal mitigating factors
Guilty plea	less 9 months (20%)
Personal factors	less 5 months (11.1%)
Bail	less 5 months (11.1%)
Sum	less 16 months (35.5%)

[72]   Reducing the notional starting point of three years and nine months (45 months) by 16 months leads to an end sentence of two years five months, one month more than the sentence imposed by the Judge.

[73]   In such circumstances it cannot be said the Judge erred in the overall sentence he imposed, and it is not manifestly excessive.

Result

[74]The application for leave to appeal out of time is granted.

[75]The appeal is dismissed.

Doogue J

Solicitors:

Crown Solicitor, Dunedin CC:

S Saunderson-Warner, Dunedin