Brown v The the King
[2022] NZCA 586
•30 November 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA289/2022 [2022] NZCA 586 |
| BETWEEN | LEONARD JOSEPH BROWN |
| AND | THE KING |
| Hearing: | 27 October 2022 |
Court: | Brown, Mallon and Downs JJ |
Counsel: | D J Dufty for Appellant |
Judgment: | 30 November 2022 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Downs J)
Introduction
Leonard Brown pleaded guilty shortly before trial to a charge of supplying methamphetamine; a charge of conspiring to supply methamphetamine; and a final charge of possessing that drug for supply. The District Court imposed a sentence of five years and three months’ imprisonment.[1] Mr Brown appeals. An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed[2] or, in short, if the sentence is manifestly excessive.[3]
Background
[1]R v Tahana [2022] NZDC 9656 [Sentencing notes].
[2]Criminal Procedure Act 2011, s 250.
[3]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
Mr Brown’s offending was detected after police obtained a surveillance device warrant on 19 November 2019. Between then and 13 December 2019, Mr Brown arranged to buy 20 ounces of methamphetamine from co-defendants, then sell the drug to lower-level dealers and other users. In this context, Mr Brown twice supplied 10 ounces of methamphetamine (a total of 560 grams). This was the basis for the representative charge of supplying methamphetamine. On the second occasion, Mr Brown and a co-defendant discussed her retrieval of $50,000 in cash — the purchase price for 10 ounces of methamphetamine. Closed‑circuit television footage from Mr Brown’s home captured the transaction.
On 13 December 2019, co-defendants agreed to supply Mr Brown an unspecified quantity of methamphetamine. This gave rise to the conspiracy charge. Mr Brown collected $55,000 in cash. He was arrested the same day, as were the other defendants. Police found $55,705 in cash in Mr Brown’s car, together with scales, and found a further $1,775 and eight grams of methamphetamine on Mr Brown’s person. The latter discovery gave rise to the possession for supply charge. Police found 396 grams of methamphetamine in the co‑defendants’ car.
On 11 March 2022, Mr Brown pleaded guilty. His trial was to begin 21 March 2022.
Judge Down concluded Mr Brown played a significant role in the supply chain, as he had “an operational or management function”, “subordinates” and was “motivated by financial or other advantage”.[4] The Judge adopted a global starting point of nine years’ imprisonment and added six months for Mr Brown’s history of drug offending.[5]
[4]Sentencing notes, above n 1, at [17]
[5]At [24].
The Judge deducted 20 per cent for Mr Brown’s guilty pleas and five per cent for his personal circumstances, as revealed by a cultural report provided under s 27 of the Sentencing Act 2002. The Judge deducted another five per cent for Mr Brown’s “health struggles”, which he accepted would make a sentence of imprisonment more difficult for Mr Brown.[6] Finally, the Judge deducted a total of 15 per cent for time on restrictive bail and rehabilitation.[7] Mr Brown was on electronically monitored bail (EM bail) for approximately 19 months. He spent time at two rehabilitation centres and successfully completed various courses.
Argument and analysis
[6]Sentencing notes, above n 1, at [25] and [30].
[7]At [26].
Mr Brown does not contest the starting point, six-month uplift, or guilty plea discount. Rather, he contends the remaining discounts were inadequate. On his behalf, Mr Dufty argues the Judge should have deducted 15 per cent for personal circumstances, and a further 20 per cent for rehabilitation.
In relation to the former, Mr Dufty emphasises Mr Brown’s cultural report. It contains a depressingly familiar tale that records, among other things, childhood violence and trauma; early exposure to gangs; early abuse of alcohol and drugs; and later methamphetamine use as a “user-dealer”.
Case law in this context is not prescriptive about the level of discount and emphasises the importance of fact-specific inquiry.[8] That said, case law involving the commercial supply of methamphetamine by a user of that drug has cautioned against the provision of discount when rational choice has not been compromised.[9] For example, in Whiteford v R this Court held the appellant’s methamphetamine addiction did not mitigate his dealings in that drug as these comprised “a commercial operation motivated by profit”.[10]
[8]Whittaker v R [2020] NZCA 241 at [51].
[9]See, for example, Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [147]; Smith v R [2020] NZCA 221 at [21]; and Whiteford v R [2020] NZCA 130.
[10]Whiteford v R, above n 9, at [27].
We make three points.
First, the overall discount for personal mitigating features was 10 per cent, as the Judge gave another five per cent for Mr Brown’s health. As we explain, this was benevolent. Mr Brown produced a small selection of his medical records to the District Court. These implied he may have a heart problem, and since 2008, Post‑Traumatic Stress Disorder. However, Mr Brown did not adduce medical evidence from an expert witness regarding either condition. Moreover, Mr Brown adduced no evidence that either putative condition would make his incarceration more difficult. Mr Dufty argued Mr Brown’s heart condition requires he not be self-isolated within prison, and this is increasingly frequent given the Covid-19 pandemic. Absent evidence, the submission is speculative. In any event, we do not consider it would justify a discrete discount.
Second, a discount of 10 per cent for personal mitigating features, including deprivation, is consistent with recent case law.[11]
[11]See, for example, Aramoana v R [2021] NZCA 558 at [14], where a 10 per cent discount was appropriate. In Kreegher v R [2021] NZCA 22, a five per cent discount was increased to 10 per cent. In Minogue v R [2020] NZCA 515, a five per cent discount was increased to 15 per cent.
Third, like Whiteford, Mr Brown’s commercial dealings in large quantities of methamphetamine — 568 grams — precluded a discount based on use of, or apparent dependency on, that drug.[12] This case does not involve small-scale or low-level drug‑dealing to feed an addiction. We did not understand Mr Dufty to argue otherwise.
[12]Mr Brown supplied 560 grams. He possessed a further eight grams for supply.
It follows we are not persuaded the Judge erred in relation to the discounts for Mr Brown’s personal mitigating features, including his background and methamphetamine use.
In relation to rehabilitation, Mr Dufty emphasises that Mr Brown used his time on EM bail productively. As observed, he attended two rehabilitation centres and successfully completed various courses. A report from one centre describes Mr Brown positively, and as taking “responsibility [for] his actions”. Mr Dufty therefore contends the Judge should have deducted an additional 20 per cent for rehabilitation.
As with discounts for personal mitigating features, those for rehabilitation turn very much on circumstance. Two cases are illustrative.
In Wirihana v R, the defendant pleaded guilty to two charges of possession of methamphetamine for supply.[13] The first involved 15.5 grams; the second, 336 grams. Mr Wirihana “made no money” out of the offending; he merely stored the drugs for others.[14] Mr Wirihana also consumed methamphetamine “to remain awake so he could work two jobs” and was not an addict.[15]
[13]Wirihana v R [2020] NZCA 151.
[14]At [10].
[15]At [8].
By the time of his appeal, Mr Wirihana had been on bail for 15 months, ceased using methamphetamine, and maintained full-time employment. Letters of support conveyed “a consistent theme of remorse” on the part of Mr Wirihana for his offending.[16] Mr Wirihana’s probation officer considered he posed “a low likelihood of reoffending”.[17] Mr Wirihana was considered to have “taken steps to address the causes of his offending and he [was] willing to take more”.[18] He had “a stable and supportive family life” and was described as “a valued and contributing member of society”.[19]
[16]At [22].
[17]At [23].
[18]At [27].
[19]At [27].
This Court concluded Mr Wirihana’s “actual” rehabilitation, in conjunction with his guilty pleas, warranted a global discount of 50 per cent, in turn allowing a sentence of home detention. The Court described the case as “unique”.[20]
[20]At [32]–[33].
In Whiteford, which we mentioned earlier, the appellant dealt methamphetamine over five months as “an independent drug dealer” at street level.[21] Mr Whiteford was “an addict” who had completed a rehabilitative programme on remand.[22] A report by a psychiatrist considered the defendant “abstinent from methamphetamine and alcohol”.[23] This Court declined any allowance for this mix, noting it was not a case in which deterrence “can be discounted because treatment will address the risk of reoffending”.[24]
[21]Whiteford v R, above n 9, at [18(a)].
[22]At [26].
[23]At [26].
[24]At [27].
We make three points in relation to rehabilitation. First, because Mr Brown’s gains were made while he was on EM bail, the Judge was right to approach the associated discounts holistically. Second, Mr Brown’s case is closer, overall, to Whiteford than Wirihana. Third, a global deduction of 15 per cent appropriately recognised Mr Brown’s rehabilitative efforts in the context of significant, commercial drug-dealing. It follows we are not satisfied of error in relation to this aspect either.
The sentence is not manifestly excessive.
Result
The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent.
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