Corless v The Queen

[2020] NZHC 3208

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-426

[2020] NZHC 3208

BETWEEN

SCOTT JAMES CORLESS

Appellant

AND

THE QUEEN

Respondent

Hearing:	7 December 2020
Appearances:	B Sellars QC and H J Bell for the appellant R W Belcher for the respondent
Judgment:	7 December 2020

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

B Sellars QC, Auckland Meredith Connell, Auckland

CORLESS v R [2020] NZHC 3208 [7 December 2020]

[1]                   Scott James Corless appeals his sentence of two years and three months’ imprisonment, imposed by Judge E P Paul in the District Court at Auckland on        5 October 2020,1 on Mr Corless’ guilty pleas to two charges of possession of methamphetamine for supply.2

Background

[2]                   On 17 September 2019, police – exercising a warrant to return Mr Corless to custody, after he failed drug tests while on parole from a 11-year sentence for “manufacture of [methamphetamine] on a large scale”3 – located him with three others at his third-floor apartment in Auckland’s Glen Eden.

[3]                   According to the summary of facts, while they sought entry, items were seen thrown from the apartment’s balcony to that of a neighbour. After entering and arresting Mr Corless, police found 185.3g of methamphetamine in plastic containers, and drug-dealing paraphernalia (glass pipes and plastic ziplock bags) on the neighbouring balcony. Two new sets of digital scales and another 12.1g of methamphetamine in a plastic container were found concealed next to another of the apartment’s occupants, Kara Rudolph, standing on the balcony. A box for one of the scales was located next to Mr Corless. Substantial quantities of crystalline and diluted forms of phosphorus acid, a precursor substance used in the manufacture of methamphetamine, were found in a car registered to Mr Rudolph parked in the apartment complex’s carpark. Mr Corless had 336 milligrams of MDMA and

$1,131.20 in cash, and Mr Rudolph $3,510 in cash and other drug-dealing paraphernalia (plastic ziplock bags and cut straws), on their persons.

Decision under appeal

[4]                   Sentencing proceeded on a purity-adjusted quantity of 105.39g of methamphetamine in Mr Corless’ possession for supply. The Judge held that quantity “significant”, but Mr Corless’ role in his possession of it “less clear on all the evidence”.4 Even allowing for purchase to feed Mr Corless’ addiction, the presence of

1      R v Corless [2020] NZDC 20489.

2      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). Maximum period of imprisonment: life.

3      R v Corless [2014] NZHC 1211 at [23].

4      R v Corless, above n 1, at [7].

drug-dealing paraphernalia only allowed for an assessment of “less [than significant] involvement”, attracting a starting point of four-and-a-half years’ imprisonment.5

[5]                   The Judge uplifted that starting point to five years for offending while on parole for drug offending, and discounted it by 25 per cent for his guilty pleas, and a further 15 per cent for his addiction (while rejecting a higher figure, given Mr Corless’ “age and the opportunities [he] had to address [his] addiction”.6 Mr Corless is 59 years old.

[6]                   The Judge also acknowledged Mr Corless’ background as ‘normalising’ drug and alcohol use, but “there must come some point [he needs] to take responsibility for [his] drug use”.7 He was not prepared to give any further discount for Mr Corless’ expression of remorse or health issues, as insufficiently “significant”.8

[7]                   Allowing a 45 per cent discount, the Judge calculated an end sentence of two years and nine months’ imprisonment,9 which he further discounted by six months to “not double count for the period that [he had] been recalled in the absence of time served on remand”.10 The result effectively is a 55 per cent discount from the Judge’s five-year starting point.

[8]                   On appeal, Mr Corless’ counsel, Belinda Sellars QC, argues the Judge’s erring assessment of Mr Corless’ involvement resulted in too high a starting point, and he failed adequately to discount for Mr Corless’ addiction and other personal factors, and for time spent in custody on recall.

Approach to appeals against sentence

[9]                   I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.11 In any other case, I must dismiss the appeal.12 The approach previously taken by courts on sentencing appeals continues to

5 At [8].

6 At [9].

7 At [10].

8 At [11].

9 At [12].

10     At [12]–[13].

11     Criminal Procedure Act 2011, s 250(2).

12     Section 250(3).

apply;13 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.14 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.15

Discussion

—starting point

[10]               I first address the Judge’s four-and-a-half year start point. It is uncontroversial the material factors here are quantity and role.16 There is no dispute the quantity of methamphetamine here engages a five-year start point.17 Ms Sellars contends the Crown has not discharged its obligation to establish Mr Corless’ role at the level contended beyond reasonable doubt.18 She says the circumstantial facts – of his possibly only temporary co-location with the drugs, paraphernalia, and money, and his admitted acquisition for addicted use – do not support any commercial involvement.

[11]               However, the analysis must begin with the statutory presumption Mr Corless’ possession of methamphetamine in excess of 5 grams is for supply.19 It is for him to prove to the contrary. His precise role in that supply may be indeterminate, but it is not nothing. The circumstantial facts also must be given some weight. It is implausible the additional materials all were brought onto the premises exclusively in the course of or for the purpose of supplying Mr Corless. They elevate his role above the ‘lesser’ role his addiction alone may have indicated.

[12]               I am not prepared to engage in a ‘cut-throat’ analysis of Mr Rudolph’s possible involvement to exclude that of Mr Corless. The Judge’s discount is sufficient to allow for the prospect of Mr Corless’ lesser involvement, while not avoiding the prospect of a return to his previous significant ways. And I keep in mind supply of

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

14     At [33] and [35].

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

16     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10](b) and (d).

17 At [125].

18     Sentencing Act 2002, s 24(2)(c).

19     Misuse of Drugs Act 1975, ss 2(1A) and 6(6) and Schedule 5.

methamphetamine inherently is serious offending, with corresponding community impact.

[13]The Judge did not err in his selection of a four-and-a-half year starting point.

—discounts

[14]I turn to the contested discounts afforded by the Judge.

[15]So far as the Judge’s 15 per cent addiction discount is concerned:20

[A]  ddiction may logically give rise to a discount of up to 30 per cent of the sentence depending on the extent to which it mitigates moral culpability for the offending”.

To explain further, “it is impaired capacity to make decisions that mitigates culpability and such impairment is unlikely to cause commercial  dealing”. The question is if  Mr Corless’ addiction impaired his capacity to make the commercial decisions implied by his offending.21

[16]               The Judge’s discount finds a culpability balance between Mr Corless’ addiction-induced impaired capacity and his presumed commercial dealing. As a mid- point, it is consistent with, even generous in comparison to, other appellate allowances in methamphetamine sentencing.22

[17]               I infer the Judge’s “45 per cent” incorporates a 5 per cent discount for factors identified in Mr Corless’ s 27 report, rather than to conclude the Judge’s arithmetic erred. The report is more explanatory of the possible causes of Mr Corless’ addiction than directly of his offending. Caution must be exercised, to avoid duplicating the Judge’s addiction discount.

[18]               Discounts for personal circumstances are available in drug cases in appropriate circumstances: for example, where contributing to the offending in some material way;

20     Zhang v R, above n 16, at [149].

21     Royal v R [2020] NZCA 129 at [24], citing Zhang, above n 16, at [147].

22     Roulston v R [2020] NZCA 255 at [42] (10 per cent); Joyce v R [2020] NZCA 124 at [32] (10 per cent).

or else on purely compassionate grounds.23 This is true notwithstanding deterrence carries more weight in drug offending than offenders’ personal circumstances.24

[19]               Save so far as it resounds in his addiction, I have some difficulty in seeing the causative nature of Mr Corless’ difficult youth in his now-mature offending. I cannot disregard the present offending arose soon after expiry of the six-year non-parole period of his prior sentence, and then while on parole. Deterrence is to be given its due. The Judge’s additional allowance in those circumstances is benevolent.

—credit for time spent on recall

[20]               Mr Corless spent some 12 months in custody on recall, prior to his present sentencing. Unlike pre-sentence custody, time spent on recall is not taken into account in calculating a sentence expiry date, and therefore a discount should be applied to reflect that additional time in custody as a result of the offending for which the offender is being sentenced.25

[21]               But that is not the position here. Mr Corless was recalled for separate breach of parole conditions, only in the course of arrest for which the present offending was detected. He was being recalled to serve an additional portion of his former substantial sentence, irrespective of the present offending. While his retention in custody may have been longer because of the present offending, it is not all to be credited to his present sentence, even if like-for-like credit is to be applied.

[22]               Rather, mutely acknowledging the “rival lines of authority”, the Judge’s six- month discount also finds a mid-point to balance applicable double punishment with condemnation of offending while on parole.26

[23]The Judge did not err. The end sentence is not manifestly excessive.

23     Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [14].

24 At [12].

25     Thomas v R [2020] NZCA 257 at [16].

26     Silitoto v R [2016] NZCA 328 at [38]–[39].

Result

[24]The appeal is dismissed.

—Jagose J