Bateson v The King
[2023] NZHC 915
•24 April 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2023-463-18
[2023] NZHC 915
BETWEEN MARK BATESON
Appellant
AND
THE KING
Respondent
Hearing: 24 April 2023 Appearances:
N Dutch for Appellant
R Jenson for Respondent
Judgment:
24 April 2023
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 14 March 2023 at 2.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Rotorua
BATESON v R [2023] NZHC 915 [24 April 2023]
[1] Mr Bateson pleaded guilty to two representative charges of supplying methamphetamine as well as charges of selling, offering to supply and being in possession of cannabis for supply.
[2] On 22 February 2023 Judge L M Bidois sentenced Mr Bateson to 12 months home detention.1 Mr Bateson appeals against sentence on the basis that the Judge made two errors in constructing the sentence and these resulted in an end sentence that was manifestly excessive.
The offending
[3] The charges were laid after the police terminated an operation during which they analysed electronic communications between Mr Bateson and other persons on his cellphone.
[4] The communications revealed that between 7 July and 21 September 2022 Mr Bateson sold small quantities of methamphetamine to other persons on 17 occasions. During approximately the same period he also offered to sell methamphetamine on five occasions. In addition, on 25 and 26 July 2022 Mr Bateson sold cannabis on two occasions. On the first occasion he sold half an ounce (14 grams), whilst on the second occasion he sold an ounce (28 grams). On 25 August 2022 Mr Bateson offered to sell an unspecified quantity of cannabis to a third party.
[5] The police executed a search warrant on Mr Bateson’s residential address at the termination of the operation. He was present at the address when the search was carried out.
[6] In Mr Bateson’s bedroom the police found approximately 40 grams of dried cannabis head material divided into two snaplock plastic bags. They also found numerous plastic zip lock bags of the type commonly used to package small quantities of methamphetamine. In addition, the police found three sets of operating digital scales and a “tick list” that referred to 13 separate drugs sales. Also in his bedroom were three small plastic containers of a type commonly used to store large quantities
1 New Zealand Police v Bateson [2022] NZDC 3325.
of methamphetamine together with a scooping device. This could be used to transfer quantities of methamphetamine from a container to a ziplock bag. A crystalline substance later found to be methamphetamine residue was visible on the three containers.
[7] When the police searched the garage of the address they found two grams of dried cannabis head material, two sets of operating digital scales and numerous new zip lock bags of a type used to sell small quantities of methamphetamine. The police also found a variety of glass pipes of a type commonly used to consume both methamphetamine and cannabis in Mr Bateson’s bedroom and the garage at the address. A further tick list detailing 14 sales of drugs was also located in a Mitsubishi motor vehicle parked in the driveway of the address.
[8] In total, the police calculated that Mr Bateson had sold a total of 4.4 grams of methamphetamine on 44 separate occasions. The approximately value of these sales was $,4,000. When the police spoke to Mr Bateson,s he told them he was a long-term user of methamphetamine, having been consuming on a regular basis it for at least ten years.
The sentence
[9] The Judge noted that the methamphetamine offending fell within Band 1 identified in Zhang v R.2 He took a starting point on these charges of two years imprisonment. He then added an uplift of 12 months to reflect the charges relating to the possession and sale of cannabis.
[10] From the resulting sentence of three years imprisonment the Judge applied a discount of one-third to reflect early guilty pleas and other mitigating factors. These included Mr Bateson’s long term addiction to methamphetamine and factors identified in a report tendered under s 27 of the Sentencing Act 2002. The Judge then converted the end sentence of two years imprisonment to one of 12 months home detention.
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 608.
The appeal
[11] Mr Dutch does not challenge the starting point the Judge adopted for the methamphetamine charges. However, he challenges the approach the Judge took in two other respects. He contends:
(a)The Judge applied an excessive uplift to reflect the cannabis offending.
(b)The Judge applied an inadequate discount to reflect mitigating factors other than the guilty pleas.
Uplift to reflect the cannabis offending
[12] The cannabis offending obviously involved a degree of commerciality, although there were few transactions undertaken and the quantities of cannabis involved were not particularly significant. On a standalone basis the charges would probably justify a starting point of 12 to 18 months imprisonment. Having regard to totality principles Mr Manera acknowledges for the Crown that an uplift of 12 months was excessive. Like Mr Dutch, he suggests an uplift of around six months.
[13] I agree. I consider an uplift of no more than six months was warranted to reflect the cannabis offending having regard to totality principles.
Level of discount
[14] It is common ground that the Judge would have applied a discount of 25 per cent to reflect early guilty pleas. This meant he applied a further discount of 8.33 per cent to reflect other mitigating factors including Mr Bateson’s acknowledged addiction to methamphetamine and factors identified in the cultural report. Mr Dutch contends that these factors warranted an additional discount of around 25 per cent.
[15]The Judge referred to the s 27 report as follows:3
[10] On the probation report I would not have granted you home detention. I was not aware of the Waiariki Whānau Mentoring efforts that you put in. I am prepared to grant you home detention. I have taken into account the report
3 New Zealand Police v Bateson, above n 1.
that has been provided in terms of s 27. You were different form a lot of other drug users. You had a good upbringing. You have still got your parents’ support. You are in good physical health. You have got some physical injuries. You self-reported your substance abuse and that is accepted, some gambling abuse and of course you only started using methamphetamine when you were 25 so you were an adult. That was a choice you made, unlike many others who are forced into it to bury their past and deal with trauma or that is what they were exposed to.
[16] Mr Bateson obviously could not seek a discount for deprivation in the early years of his life but there was clear evidence of both addiction that underpinned the offending and rehabilitative efforts he has undertaken. Mr Manera concedes the Judge ought to have applied a discount of more than 8.33 per cent to reflect mitigating factors other than the guilty pleas. However, he submits that the end sentence of 12 months home detention was within the available range. He also suggests that any adjustment of the sentence would amount to tinkering.
[17] I consider an appropriate level of discount for the additional mitigating factors was around 15 per cent. This means that Mr Bateson ought to have received a total discount of 40 per cent rather than 33.33 per cent as applied by the Judge. When this is applied to a sentence of 30 months imprisonment it produces an end sentence of 18 months imprisonment. This would result in a corresponding reduction of the sentence of home detention to one of nine months. I do not regard a 25 per cent reduction as constituting tinkering.
Result
[18] The appeal is accordingly allowed. The sentence of 12 months home detention is set aside. In its place I impose a sentence of nine months home detention subject to the same conditions as those imposed by the Judge.
Lang J