Cullen v R
[2022] NZCA 308
•12 July 2022 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA673/2021 [2022] NZCA 308 |
| BETWEEN | QUENTIN JEREMIAH CULLEN |
| AND | THE QUEEN |
| Hearing: | 15 February 2022 |
Court: | Kós P, Peters and Palmer JJ |
Counsel: | M J Taylor-Cyphers for Appellant |
Judgment: | 12 July 2022 at 9 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of eight years’ imprisonment is quashed and a sentence of six years, six months’ imprisonment substituted.
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REASONS OF THE COURT
(Given by Peters J)
The appellant, Mr Cullen, appeals against his sentence of eight years’ imprisonment imposed by Judge Paul on 17 July 2020.[1] The sentence was in respect of two charges of possession of methamphetamine for supply, and one charge each of possession of MDMA (or ecstasy) for supply, offering to supply methamphetamine, and conspiracy to supply methamphetamine.
Extension of time
[1]R v Cullen [2020] NZDC 13985.
Mr Cullen’s appeal is brought approximately 15 months out of time. It appears that Mr Cullen’s notice of application for leave to appeal of 22 October 2021 was prompted by his learning of the much lesser sentence imposed on Ms Renee Grace, his co-offender and partner at the time of the offending.[2] There was little to distinguish Ms Grace’s offending from Mr Cullen’s, yet her end sentence was substantially less at five years, two months’ imprisonment.
[2]R v Grace [2021] NZDC 18200.
In any event, the Crown does not object to us granting the necessary extension of time, and we do so.
Sentencing
Prior to sentencing, Judge Glubb had given Mr Cullen, Ms Grace, and another co-offender, Mr McCrae, a sentence indication.
Judge Glubb’s indication for Mr Cullen was a starting point of nine and a half years, plus an uplift of six months for Mr Cullen’s prior relevant convictions. This brought Mr Cullen’s overall starting point to 10 years’ imprisonment. The Judge said that any mitigating factors personal to Mr Cullen would have to await sentencing itself, but that he would grant Mr Cullen a 15 per cent reduction for guilty pleas if he accepted the indication.
At sentencing, Judge Paul retained Judge Glubb’s starting point, uplift, and 15 per cent reduction for guilty pleas. The Judge also deducted five per cent for Mr Cullen’s efforts to rehabilitate. This brought the end sentence to eight years’ imprisonment.
Mr Cullen’s counsel at sentence, Ms (now Judge) Pecotic, also sought reductions for matters raised in two reports provided pursuant to s 27 of the Sentencing Act 2002, and to reflect that Mr Cullen’s offending was the result of his addiction to methamphetamine.
The Judge declined reductions for these matters. On appeal, counsel for Mr Cullen, Ms Taylor-Cyphers, submits that the Judge erred in doing so and that discounts of 10 per cent for each should be allowed. Ms Taylor-Cyphers also submits that Mr Cullen ought to have received at least a 17 per cent discount for his guilty pleas. She also submits that some account should be taken of the disparity between Ms Grace’s end sentence and Mr Cullen’s. The view we take of this appeal makes it unnecessary to address that aspect of Ms Taylor-Cyphers’ submissions in any detail.
Crown counsel submits that the Judge was correct to decline any reduction in the sentence for addiction and personal circumstances, and that no increase in the discount for guilty pleas is warranted.
Background
The charges against Mr Cullen and Ms Grace followed the execution of a search warrant at their address in January 2018. In the course of the search police located more than 540 grams of methamphetamine, much of which was bagged in commercial quantities, ready for supply.
This quantity of methamphetamine placed Mr Cullen, and Ms Grace for that matter, in band four of the sentencing bands that this Court identified in Zhang v R, suggesting a starting point of 10 years or more.[3] Thus there could be, and there is, no dispute as to the starting point the Judge adopted.
[3]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [19].
In the course of the search, the police also located more than 160 MDMA pills, and a search of Mr Cullen’s cellphone yielded evidence of offers, and conspiracy, to supply methamphetamine. The Crown submits that the nature of the offers suggest that Mr Cullen and Ms Grace would have disposed of the methamphetamine in their possession for more than $100,000.
Mitigating factors
In Zhang, this Court identified considerations which might impair an offender’s otherwise rational choice to offend and thus diminish their moral culpability, this in turn justifying a reduction in sentence.[4] Addiction causative of offending is one such consideration, and social, cultural, or economic deprivation that has a demonstrative nexus with the offending is another.
[4]At [10], [92] and [159].
Although this Court considered commercial dealing of methamphetamine is likely to be inconsistent with impairment of the ability to exercise rational choice, it did not exclude that possibility.[5] Since then, reductions in sentence have been granted for the reasons to which we have just referred, even though the quantities of methamphetamine involved have been on a commercial scale.[6]
Reports
[5]At [147].
[6]To’a v R [2020] NZCA 187; Martin v R [2020] NZCA 318; Clark v R [2020] NZCA 641; and Wratt v R [2021] NZCA 128.
At sentencing the Judge had reports from Ms S Visser, a clinical psychologist, from Ms A Nielsen, a lawyer, and a PAC report from the Department of Corrections. Ms Visser interviewed Mr Cullen and his mother. The other two reports were based solely on interviews with Mr Cullen.
The relevant content of the reports may be summarised as follows.
Mr Cullen left home when he was 11 or 12 to escape a physically violent father, a matter confirmed by Mr Cullen’s mother. He then lived with the family of a friend until 15 or 16, but also spent time in boys’ homes from which he tended to abscond.
Mr Cullen reports that he was introduced to alcohol at about 11 or 12 years of age, and to drugs at 16 — starting with cannabis, and progressing to MDMA and methamphetamine. Mr Cullen’s mother confirmed Mr Cullen’s history of substance addiction.
Mr Cullen left school without formal qualifications, having been expelled for fighting, drinking, and using cannabis. Mr Cullen has, however, been employed for long periods. These include approximately 10 years as a builder, seven years in another business, and, prior to this offending, labouring. He had also started his own property maintenance business prior to the relapse referred to in the next paragraph.
Mr Cullen, and again this is confirmed by his mother, reports a longstanding addiction to methamphetamine, although he was drug free for 15 months after his release on a sentence imposed in 2011. Mr Cullen reported that he relapsed after meeting Ms Grace and, he says, at her instigation.
Mr Cullen has been a regular offender since 1993 when he was aged 16. He has convictions for dishonesty and driving offences, possession of firearms and offensive weapons, and for drug offending, and has served terms of imprisonment for the supply of methamphetamine and possession of utensils.
Mr Cullen was remanded in custody on arrest for the current charges. Since then he has attended rehabilitation programmes, not entirely successfully but with an evident degree of commitment. Hence the Judge’s five per cent discount.
Judge’s reasons
The Judge declined to give any discount for addiction and matters in Mr Cullen’s background because he was not satisfied that the necessary causal connection with the offending was made out. It is clear from the Judge’s notes that he was influenced by the commercial nature of the offending.
Discussion
Addiction
Zhang anticipates corroborating evidence of the fact of addiction and its effect.[7] In this case, there is sufficient evidence of addiction. Aside from Mr Cullen’s self-report, Mr Cullen’s mother has confirmed his addiction; there is further corroboration in Mr Cullen’s criminal history; in the various pipes and other substances located during the police search; and, as Ms Taylor-Cyphers submits, in Mr Cullen’s engagement with rehabilitative programmes.
[7]At [148].
As to a causal connection, we agree with the Judge that Mr Cullen and Ms Grace would not have had that quantity of methamphetamine in their possession solely to pay for their own habits. However, that is not required. It is sufficient if addiction was “a” cause.[8] We are satisfied that Mr Cullen would have been acting in part to feed his addiction and in part for financial reward. One matter to which Mr Cullen referred in his discussion with Corrections was his inability ever to earn quite enough to meet his familial expenses as well as the costs of his addiction.
[8]Carr v R [2020] NZCA 357 at [64].
We have already referred to other instances in which this Court has allowed a discount for addiction, despite the offender possessing or importing relatively substantial quantities of methamphetamine. To take an example, in Clark v R the District Court had allowed Mr Clark a discount of 15 per cent to reflect the partial influence of his addiction on his offending.[9] Although this Court declined to increase the discount, it did not indicate it thought it excessive. In other cases, referred to below, this Court has given a combined discount, to reflect addiction and another mitigating factor or factors.
Personal circumstances
[9]Clark v R, above n 6, at [22].
We are also persuaded that some reduction is required for the effects on Mr Cullen of the matters referred to in [17] and [18] above. We accept that those matters have affected the course of Mr Cullen’s life, and in particular his propensity to offend. The only significant periods we have been able to identify in which Mr Cullen ceased to offend are when he has been in custody. That said, Mr Cullen has not been overwhelmed by his disadvantages. This is apparent from his maintaining employment for lengthy periods. Mr Cullen’s addiction has been a greater source of his offending.
Having concluded the necessary causal connections exist, the next issue is what reduction is required. We have decided on a reduction of 15 per cent to reflect both the contributing effect of Mr Cullen’s addiction and the matters which have contributed to Mr Cullen’s longstanding propensity to offend. A combined discount is apposite in this case, as it is difficult to separate the effect of the two factors. This was also the position in Wratt v R, in which the discount of 10.5 per cent reflected both addiction and ADHD, and Roulston v R, in which this Court’s discount of 10 per cent reflected addiction and personal circumstances.[10] We note also that Judge Bergseng did likewise in sentencing Ms Grace, allowing her a reduction of 15 per cent for the combined effects of addiction, personal circumstances and a health issue.[11]
Guilty pleas
[10]Wratt v R, above n 6, at [13]; and Roulston v R [2020] NZCA 255 at [42].
[11]R v Grace, above n 2, at [29].
Ms Taylor-Cyphers’ submissions proceeded on the basis that Ms Grace received a discount of 15 per cent for her guilty pleas. This is incorrect. Ms Grace received a discount of 10 per cent.[12] We decline as unjustified Ms Taylor-Cyphers’ invitation to increase the discount for MrCullen’s guilty pleas from 15 per cent to 17 per cent.
Parity
[12]At [31].
The additional discounts we have allowed Mr Cullen make it unnecessary to address Ms Taylor-Cyphers’ further submissions regarding the apparent disparity between Ms Grace’s end sentence and Mr Cullen’s.
Result
The application for an extension of time to appeal is granted.
The appeal against sentence is allowed.
We quash the concurrent sentences of eight years’ imprisonment imposed on the offences listed in [1] above, and substitute concurrent sentences of six years, six months’ imprisonment.
Solicitors:
Crown Solicitor, Auckland for Respondent
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