Blake v Police

[2015] NZHC 606

IN THE HIGH COURTOF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-48 [2015] NZHC 606

BETWEEN

WAYNE BLAKE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	30 March 2015
Counsel:	M A Edgar for Appellant K J Cooper for Respondent
Judgment:	30 March 2015

JUDGMENT OF BREWER J

Solicitors/Counsel:          Mark Edgar (Auckland) for Appellant

Crown Law (Wellington) for Respondent

BLAKE v POLICE [2015] NZHC 606 [30 March 2015]

Introduction

[1]      Mr Blake appeals against the sentence handed down against him by Judge K Glubb in the District Court at Waitakere on 14 November 2014.   Mr Blake had pleaded guilty to a charge of manufacturing methamphetamine and also to charges involving the unlawful possession of a restricted weapon and a firearm.  There were associated charges which I do not need to mention.

[2]      The sentence handed down by the Judge was in accordance with a sentence indication he had given on 9 September 2014.  The end sentence was two years and six months’ imprisonment.

Issues

[3]      There are two issues that have to be determined in this appeal.  The first is whether the Judge gave adequate credit for co-operation by Mr Blake with the Police.   The second issue is whether the Judge was right to impose a minimum period of imprisonment of 50 percent.

Did the Judge give adequate credit for co-operation?

[4]      I note that the Judge had already given a credit of 40 percent of the sentence for Mr Blake’s plea of guilty and other matters personal to him.  At the sentencing, the  Judge  was  provided,  in  a  confidential  manner,  with  information  setting  out Mr Blake’s co-operation with the Police.  Neither Mr Edgar nor Mr Blake saw the letter which was given to the Judge.  I have been given a copy by the Crown and have had the opportunity of reading it.  I have returned the letter to Crown counsel.

[5]      The Judge’s response to the letter was to give Mr Blake a further discount of

10 percent, taking the total discount of sentence for these factors to 50 percent.

[6]      Mr  Edgar  submits  that  the  Judge  should  have  been  more  generous  than allowing an additional 10 percent discount.  In Mr Edgar’s submission, it was open to the Judge to go as high as 20 percent.

[7]      I am guided by the decision of the Court of Appeal in R v Hadfield.1   I also had the opportunity to consider this area last year in the case of Wen v Police.2

[8]      A discount for co-operation with the Police is calculated by considering the nature of the co-operation and how valuable it was in terms of assisting with the detection of criminal offending or preventing it from occurring.   Often such co- operation extends to  giving evidence against very dangerous people.   That was considered by the Court of Appeal in the Hadfield case.  However, it is important to note that the Court of Appeal considers that an overall discount of 60 percent for all discount factors is about the maximum.  In the Wen case, I considered that an overall discount of 50 percent for personal factors was as high as the Judge could reasonably go.  I have the same conclusion in this case.

[9]      The  Judge  was  quite  generous  in  his  awarding  15  percent  discount  for remorse and other mitigating factors.   It might have been that had he been less generous, he would have felt it open to him to give a greater discount for co- operation.  But it is the global discount which is important.  The Judge had to stand back and look at Mr Blake in the round and his conclusion that all factors personal to Mr Blake justified halving the sentence cannot be taken issue with. Accordingly, this ground of appeal does not succeed.

Was  the  Judge  right  to  impose  a  minimum  period  of  imprisonment  of

50 percent?

[10]     The point at the outset is that a minimum period of imprisonment was not part of the indicated sentence and neither was it a matter raised at the sentencing hearing.  Neither counsel made submissions on it.  Accordingly, the Judge erred in setting a minimum period of imprisonment and my task is to consider the matter afresh.

[11]     I have come to the conclusion that there should not be a minimum period of

imprisonment  attaching  to  the  end  sentence  of  two  years  and  six  months’

imprisonment.  First, the factors of deterrence and denunciation which so often result

1      R v Hadfield CA337/06, 14 December 2006.

2      Wen v Police [2014] NZHC 2085.

in minimum periods of imprisonment being imposed in drug-dealing cases do not apply cogently in this case.   The scale of manufacturing methamphetamine was small.   It was largely to feed Mr Blake’s addiction.   There was a limited commerciality, as the Judge found, although Mr Edgar’s submission is that too much emphasis was placed on this by the Judge.  Further, against a long-term history of addiction  and  drugs-related  offending,  Mr  Blake  was  finally  addressing  his problems.  He had successfully passed a Salvation Army drugs addiction programme and showed the Judge the certificate of achievement.  He was still drugs free at the time of sentencing, and I am told from the bar that he remains so.   Finally, and although with a degree of self-interest, Mr Blake had materially assisted the Police in a drugs-related area.

[12]     All those factors seem to me to go against the need for there to be a minimum period of imprisonment.   I think that given Mr Blake’s age and stage in life, the Parole Board is the appropriate body to decide when Mr Blake should be released into society.

Decision

[13]     The  appeal  is  allowed.     The  imposition  of  the  minimum  period  of imprisonment is quashed. The sentence otherwise stands.

Brewer J