Blackburn v The the King
[2022] NZHC 2696
•18 October 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-485-000046
[2022] NZHC 2696
BETWEEN RICHARD JAMES BLACKBURN
Appellant
AND
THE KING
Respondent
Hearing: 18 October 2022 Appearances:
S J Gill for the Appellant
M Paish for the Respondent
Judgment:
18 October 2022
JUDGMENT OF GENDALL J
Introduction
[1] On 11 July 2022, the appellant, Mr Richard Blackburn, was sentenced by Judge Kelly in the Wellington District Court to two years and eight months’ imprisonment in respect of the following Crown and Police charges:1
Crown charges
(a)offering to supply a Class A controlled drug, namely methamphetamine (representative charge);2
1 R v Blackburn [2022] NZDC 13313.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2) — maximum penalty life imprisonment.
BLACKBURN v R [2022] NZHC 2696 [18 October 2022]
(b)conspiracy to deal a Class A controlled drug, namely methamphetamine (representative charge);3
(c)offering to supply a Class B controlled drug, namely GBL;4
(d)unlawful possession of a firearm;5
(e)possession of a Class A controlled drug, namely methamphetamine, for the purpose of supply;6
(f)possession of a Class B controlled drug;7
(g)possession of a Class C controlled drug, namely cannabis;8
(h)possession of utensils;9
(i)unlawful possession of ammunition;10
(j)possession of a Class A controlled drug, namely methamphetamine, for the purpose of supply (representative charge);11
Police charges
(k)unlawfully in an enclosed yard;12
(l)dangerous driving (x2);13
3 Section 6(2A)(a) — maximum penalty 14 years’ imprisonment.
4 Section 6(1)(c) and (2)(b) — 14 years’ imprisonment
5 Arms Act 1983, s 45(1) — maximum penalty four years’ imprisonment.
6 Misuse of Drugs Act, s 6(1)(f) and 2(a) a— maximum penalty life imprisonment.
7 Section 7(1)(a) and (2) — maximum penalty six months’ imprisonment.
8 Section 7(1)(a) and (2) — maximum penalty three months’ imprisonment.
9 Section 13(1)(a) and (3) — maximum penalty one year imprisonment.
10 Arms Act, s 45(1) — maximum penalty four years’ imprisonment.
11 Misuse of Drugs Act, s 6(1)(c) and (2)(a) — maximum penalty life imprisonment.
12 Summary Offences Act 1981, s 29(1)(b) — maximum penalty three months’ imprisonment.
13 Land Transport Act 1998, s 35(1)(b) — maximum penalty three months’ imprisonment with a mandatory disqualification of six months or more.
(m)driving whilst forbidden;14
(n)aggravated failing to stop (x2);15
(o)driving whilst suspended;16
(p)possession of an offensive weapon;17
(q)possession of a Class B controlled drug;18
(r)receiving property over $1000 (x3);19 and
(s)receiving property under $500.20
[2] The appellant pleaded guilty to the charges following a sentence indication given on 14 March 2022. The background to the offending is well summarised at [5]–
[28] of the sentencing decision.
[3] The final sentence imposed differed from the sentence indication given in three material ways. First, the discount for addiction issues and rehabilitative efforts was reduced from 30 per cent to 20 per cent. Secondly, however, the Judge provided a further 15 per cent discount to those indicated. Thirdly, the reduction for time spent on restrictive EM bail was increased from four months to five months.
[4] The appellant now appeals this sentence. He says the final sentence imposed of two years and eight months’ imprisonment was manifestly excessive and inappropriate in all the circumstances. Though the appellant pleaded guilty on the basis of the sentence indication he does not wish to reconsider his guilty plea.
14 Section 52(1)(c) — maximum penalty — fine not exceeding $20,000.
15 Sections 52A(1)(a)(ii), (3), (6) and 114(2) — maximum penalty six months’ disqualification (cumulative on other disqualification ordered by the Court).
16 Section 52(1)(c) — maximum penalty fine not exceeding $20,000.
17 Crimes Act 1961, s 202A(4)(a) — maximum penalty three years’ imprisonment.
18 Misuse of Drugs Act, s 7(1)(a) and (2) — maximum penalty six months’ imprisonment.
19 Crimes Act, ss 246 and 247A — maximum penalty seven years’ imprisonment.
20 Sections 246 and 247(c) — maximum penalty three months’ imprisonment.
Sentence indication
[5] On 14 March 2022, the Judge in the District Court gave the appellant the sentence indication referred to above in respect of all charges.
[6] In that sentence indication, the Judge adopted a starting point of six years’ imprisonment for the methamphetamine offending, with an uplift of six months for the firearms and ammunition charges and an uplift of one year to account for the balance of the police charges. This lead to a global starting point of seven years and six months’ (90 months) imprisonment. She then applied a further two month uplift for offending while on bail simpliciter and a reduction of four months for time spent on restrictive electronically monitored bail (EM bail). By way of discounts, the Judge proposed a further reduction of 30 per cent for addiction issues and rehabilitative efforts, and a 25 per cent discount if guilty pleas were entered.
[7] The end sentence indicated was 37 months’ imprisonment, but the Judge noted this was subject to further reports. The appellant accepted the sentence indication and pleaded guilty to all charges.
[8] Following the sentence indication, the appellant instructed Cultural Reports NZ Ltd to prepare a s 27 cultural report. This report was filed in court prior to the sentencing.
Sentencing
[9] At sentencing, the Judge retained the starting point and uplifts described above. She also provided a 25 per cent discount for guilty pleas as indicated. However, the discount for addiction issues was reduced from 30 per cent to 20 per cent. The Judge also provided an additional 15 per cent discount for s 27 report matters and increased the reduction for time spent on EM bail from four months to five months.
[10] The end sentence imposed thus amounted to 32 months’ imprisonment (two years and eight months’ imprisonment).
Submissions
Appellant's submissions
[11] The appellant appeals this sentence on the ground that the sentence was manifestly excessive. The appellant says it was unfair for the Judge in sentencing him to reduce the discount for drug addiction and rehabilitation efforts from 30 per cent to 20 per cent, as the appellant had already pleaded guilty to the charges on the basis of the sentencing indication given. Accordingly, it is contended that the Judge erred in restructuring the ultimate sentence in this way.
[12] The appellant contends the Judge should have provided the 30 per cent discount as indicated as well as an additional 15 per cent discount in respect of the s 27 report. This is a total credit of 70 per cent. Therefore the end sentence, the appellant argues, should have been 22 months’ imprisonment, which he says should then have been commuted to one of home detention.
[13] The appellant also submits the Judge should have informed the appellant that she was proposing to restructure the sentence and given him the opportunity to reconsider his guilty plea in light of that.
Respondent's submissions
[14] The respondent opposes the appeal. Ms Paish for the Crown says that, while the Judge took a somewhat unorthodox approach at sentencing, it did not render the end sentence manifestly excessive. The respondent contends the reduction in respect of the credit for addiction and rehabilitative efforts was counterbalanced by the allowance imposed in respect of the s 27 factors.
The sentencing indication
[15] Under s 61 of the Criminal Procedure Act 2011 (the CPA) the Court may give the defendant a sentence indication at their request. Section 116 of the CPA provides that a sentencing indication given under s 61 is binding on the Judge who gave it unless information becomes available to the Court after the sentence indication but before the
sentencing, and the Judge is satisfied the information “materially affects the basis on which it was given”.
Approach to appeal
[16] Under s 250 of the CPA, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.21 The Court must dismiss the appeal in any other case.22
[17] The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.23 As the Court of Appeal described the test in R v Peters:24
[13] As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component…
[18] In Tutakangahau v R, the Court of Appeal held that s 250 was not intended to change the previous “error principle” approach to appeals against sentence.25 The error principle was explained by the Court of Appeal in R v Shipton in the following way:26
The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.
[19] The Court in Tutakangahau considered it may be helpful to consider the issue in terms of whether the error is material.27 While s 250(2) makes no express reference
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
22 Criminal Procedure Act 2011, s 250(3).
23 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 21, at [36].
24 R v Peters CA12/03, 14 May 2003.
25 At [26]–[31].
26 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
27 Tutakangahau, above n 21, at [30].
to “manifestly excessive”, in Tutakangahau v R the Court of Appeal said the concept of “manifestly excessive” was “simply a means of examining the significance of the error to decide whether a different sentence should be imposed”,28 a claim which “is inevitably premised on the contention of a prior error” such as a starting point which is too high, incorrect discounts being given, or a lack of parity with co-offenders.29
[20] An appellate court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is manifestly excessive on the basis of some material error.30 An appellate Court will not intervene unless a sentence was outside the range available to the sentencing Judge.31
[21] Thus, for the appeal to be successful in this case, it must be shown that the end sentence of two years and eight months’ imprisonment was “manifestly excessive”.
[22] If an appeal is allowed, the appeal court must either set aside the sentence and impose another sentence that it considers appropriate, vary the sentence, or remit the sentence to the court that imposed it, with or without further directions.32
Discussion
[23] In McMillan v R, the Court of Appeal recently provided some guidance in respect of s 116, as follows:33
[121] However, the terms of s 116(2) free the sentencing judge from that constraint in certain circumstances. If the judge is acquainted with fresh information that comes within s 116(2), then subject to following an adequate process that is fair to both sides, a sentence may be imposed that is inconsistent with the sentence indication.
[122] In cases where a judge is minded to increase a sentence in reliance on further information becoming available since giving a sentence indication that has been accepted, there is clearly an obligation to give adequate opportunity to counsel to consider the issue, and the defendant has to be given an opportunity to withdraw the guilty pleas.34 That obligation arises even if the
28 At [32].
29 At [32].
30 Kumar v R [2015] NZCA 460 at [81].
31 Tutakangahau, above n 21, at [36].
32 Sentencing Act 2002, s 251.
33 McMillan v R [2022] NZCA 128.
34 Herlund v R [2021] NZCA 71 at [37].
end sentence is not increased, but the judge proposes to alter the way the sentence is constructed.35
[24] Regarding these stated obligations, where the Judge proposes to alter the way a sentence is constructed to ensure that counsel is given adequate opportunity to consider the issue, and the defendant given an opportunity to withdraw the guilty pleas, the Court also cited its earlier comments from 2021 made in Williams v R, as follows:
[15] The sentence indication was given pursuant to s 61 of the Criminal Procedure Act. It was binding on the Judge unless information became available to her after the sentence indication was given but before sentencing, and she was satisfied that that information materially affected the basis on which the sentence indication was given.36
[16] No further information became available to the Judge but she departed from the sentence indication by restructuring the sentence imposed. The sentence imposed for the indecency offending was reduced from that indicated in the sentence indication and the sentence imposed for the charge of attempting to dissuade a witness from giving evidence was materially increased. Nevertheless, the end sentence remained the same. Notwithstanding this, we consider that the Judge should have advised Mr Williams that she was proposing to restructure the sentence she intended to impose, and she should have given Mr Williams the opportunity to reconsider his plea.
[17] Where a Judge fails to sentence in accordance with a sentence indication, the conviction should generally be quashed to allow the defendant the opportunity to exercise the right to change his or her plea, albeit that this is not a statutory requirement.37 Before us, [counsel for the defendant] did not suggest that his client wished to vacate his plea and, given that the end sentence remained the same, we have treated the appeal as a sentence appeal rather than appeal against conviction.
[25] In that case, the Court of Appeal considered the sentence imposed by the Judge to be manifestly excessive and reduced the sentence of two years and 10 months’ imprisonment to one year and nine months’ imprisonment, with leave to apply to commute the sentence to one of home detention.38The reason the sentence was reduced by the Court of Appeal, however, was not because of the failure by the Judge to advise the defendant that she was proposing to restructure the sentence, but because the sentence was out of line with the authorities.
35 Williams v R [2021] NZCA 54, (2021) 29 CRNZ 783 at [15]–[17].
36 Criminal Procedure Act, s 116(2).
37 See for example Te Namu v Police [2013] NZHC 3443; and Te Tau v Police [2015] NZHC 1716. See generally R v Gemmell [2000] 1 NZLR 695 (CA).
38 At [30].
[26] In Williams v R, however, there was no new information to justify the restructuring at sentencing. And I note that the end sentence imposed did not ultimately differ from that indicated, arguably rendering such a restructure unnecessary. Here, in contrast, it is accepted there was further information filed in the District Court between the sentence indication and the sentencing, being the appellant’s s 27 report. Thus, the first requirement for departing from a sentence indication was fulfilled. The Judge, having received new information after providing the sentence indication, it seems decided on the basis of that information that it was appropriate to restructure the sentence to provide Mr Blackburn more by way of overall discount.
[27] However, here Mr Gill for the appellant maintains there was no indication that Judge Kelly was satisfied the information “materially affected the basis on which [the sentence indication] was given”, in terms of the second requirement justifying departure from the earlier sentence indication. Admittedly, the Judge did not make this explicit, nor does it seem she provided the appellant or his counsel with the opportunity to reconsider the guilty pleas. The Judge ought to have done so.
[28] I do note at this point that the appellant does not wish to treat this appeal as one against his conviction. The appellant does not wish to vacate his plea. Rather, the present appeal is sought to be treated solely as an appeal against sentence. Therefore, the question for me is simply whether the final sentence imposed was manifestly excessive in all the circumstances. And I remind myself that my task in assessing the present sentence, sentencing being by its nature an exercise of discretion, is not a matter of ensuring that a particular process was followed but rather that the end sentence reached was one that was reasonably open to the Judge.
[29] Having received the additional information in the form of the s 27 report, Judge Kelly clearly considered it appropriate to grant a 15 per cent discount to recognise and acknowledge the matters contained in the report, and their causative effect on the appellant’s offending.39 There is no challenge from any quarter about the size of this discount with respect to this information. I do accept the Crown’s
39 R v Blackburn, above n 1, at [51].
submission that such a discount was generous, given the significant overlap with the factors identified in the drug report as causative of the offending, which itself resulted in the 30 per cent discount with respect to those matters in the sentence indication.
[30] I accept there is significant overlap between the addiction issues and rehabilitative efforts (for which a discount had been indicated) and the factors identified in the s 27 report (which was not before the Judge at the time of the sentence indication). The Judge it seems looked to account for this overlap by reducing the first discount when she received the additional information and she provided an additional discount in respect of it. I accept the Crown’s submission that, given this overlap, the reduction in respect of the credit for addiction and rehabilitative efforts was effectively
— and adequately — counterbalanced by the allowance imposed in respect of the largely similar s 27 factors.
[31] The effect of this restructure, as noted, was also to increase the overall discounts by some five per cent, resulting in a lower overall sentence than would otherwise have been imposed. I consider that while this might be seen as an unorthodox approach, it was nevertheless one that was reasonably open to the Judge, having received new information subsequent to the sentence indication which she seemed to consider materially affected the situation.
[32] I am reinforced in my conclusion that the end sentence imposed was reasonably open to Judge Kelly when I consider what the Judge might alternatively have chosen to do. In this respect, I note particularly the Judge could have reached the same end sentence she ultimately imposed had she simply opted to provide an additional five per cent discount for the factors identified in the s 27 report. It is clear the Judge preferred a different approach, namely reducing the discount for addiction issues and rehabilitative efforts and providing a larger discount for the s 27 report than under the alternative approach suggested above. Nevertheless, while the approach the Judge took after receiving the s 27 report was not necessary, neither was it somehow prohibited.
[33] As a final matter, I confirm that I see no issue in the increased reduction for time spent on restrictive EM bail, particularly in light of the time that had passed between the sentence indication and sentencing.
[34] The appellant submits that the appropriate sentence would have been home detention. Even if I were inclined to agree, which I am not necessarily, be that as it may the sentence the Judge gave being ultimately a relatively short period of imprisonment was one that was available to the Judge in all the circumstances here. I note too in this respect the numerous and disparate charges on which the appellant was sentenced, and also the fact that the methamphetamine charges alone carried a starting point adopted by the Judge of six years’ imprisonment, uplifted by several additional discrete amounts then applied to the starting point as well. While I acknowledge the appellant’s efforts in rehabilitation and his attempts to remain drug-free during his remand period on EM bail, nevertheless a sentence of imprisonment was clearly a sentence that was open to the Judge to impose.
Conclusion
[35] The question in this case is whether the Judge’s departure at sentencing from the sentence indication she had given resulted in a final sentence that was manifestly excessive in the circumstances. The answer to that question is no.
[36] I am satisfied that final sentence imposed in this case of two years and eight months’ imprisonment was reasonably open to the Judge and it was not manifestly excessive here. In this respect I note the final sentence was in fact lower than that indicated in the sentence indication, given in relation to similar factors. It seems the Judge, upon receiving new information in the form of the s 27 report, saw fit to restructure the sentence accordingly to account for the additional report. Arguably, Judge Kelly should have informed counsel and the appellant she was proposing to restructure the sentence in the way proposed, and she should have allowed the appellant the opportunity to reconsider his pleas. However, I am satisfied in this case the additional discount provided effectively and adequately counterbalanced the reduction in the discount for addiction issues and rehabilitative efforts. In my view
the final sentence imposed was not manifestly excessive in all the circumstances prevailing here.
Result
[37]This appeal is dismissed.
Gendall J
Solicitors:
Steve Gill Law for the Appellant
Luke Cunningham & Clere for the Respondent
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