Dalwood v The the King

[2022] NZHC 2683

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-34

CRI-2022-412-35 [2022] NZHC 2683

BETWEEN

JASON CHARLES DALWOOD

Appellant

AND

THE KING

Respondent

Hearing:	17 October 2022
Appearances:	S A Saunderson-Warner for Appellant R D Smith for Respondent
Judgment:	17 October 2022

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 17 October 2022 at 3.00 pm

Registrar/Deputy Registrar Date:

DALWOOD v R [2022] NZHC 2683 [17 October 2022]

Introduction

[1]    The appellant, Jason Charles Dalwood, appeals against a sentence of two years three months’ imprisonment imposed in the District Court on 1 June 2022 having pleaded guilty to two charges of offering to supply methamphetamine1 and two charges of breaching intensive supervision.2

[2]Mr Dalwood submits the sentence imposed was manifestly excessive because:

(a)the starting point adopted for the charges of offering to supply methamphetamine was too high; and

(b)the uplift for the fact of offending while subject to a sentence of intensive supervision and the charges of breaching intensive supervision was too high.

[3]    The respondent submits that both the starting point and uplifts were within the available range and that the Judge made no error.

Approach on appeal

[4]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 A Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2): maximum penalty life imprisonment.

2      Sentencing Act 2002, s 70(A)(a): maximum penalty six months’ imprisonment or $1500 fine.

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

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

The facts of the offending

[5]    Mr Dalwood pleaded guilty on the basis of a summary of facts that stated that during October 2021 he had offered to supply methamphetamine to about 16 people. Those offers included points, quarter grams, half grams and whole grams of methamphetamine.   During  the  period  1  October  2021  to  31  October  2021    Mr Dalwood offered to supply 28.9 grams of methamphetamine, with a street value (between) $23,000 and $29,000.

[6]    On 1 November 2021 Mr Dalwood was a passenger in a motor vehicle on Tahuna Road. As police approached the vehicle Mr Dalwood attempted to conceal something down his trousers. A search was invoked and police found a methamphetamine pipe down Mr Dalwood’s trousers.

[7]    During a search of the car, approximately 2.5 grams of methamphetamine was located within 11 quarter gram bags, known as “Qs”. Police also located digital scales, new empty plastic bags and Mr Dalwood’s cell phone. Upon analysis of the cell phone, evidence of Mr Dalwood dealing methamphetamine was located.

[8]    On 18 March Mr Dalwood was spoken to by police and his vehicle was again searched. During the search police located methamphetamine paraphernalia, along with  Mr  Dalwood’s   cell   phone.  Further   investigation  revealed   that   between 5 March 2022 to 18 March 2022 Mr Dalwood continued to offer methamphetamine. Over this period, he offered to supply 30 associates with methamphetamine in the form of $100 bags, quarter grams, half grams, full grams and 7 gram (quarter packs) amounts. A total of 58.55 grams of methamphetamine was offered for supply over that second period of offending.

[9]    Overall therefore, across the two offence periods, Mr Dalwood offered to supply a total of 87.45 grams of methamphetamine.

The District Court decision

[10]   In sentencing in the District Court, the Judge noted there were two distinct periods of offending involving offers to supply methamphetamine. The Judge

considered the continuation of offending after initial police involvement to be a “significant aggravating factor”. The Judge also noted that Mr Dalwood was on intensive supervision at the time of the offending.

[11]   The Judge accepted that Mr Dalwood was addicted to methamphetamine at the time of the offending and was dealing to support his own habit.

[12]   While the Crown submitted there were indicia of commerciality, the Judge found that the allegation of commerciality was not capable of proof before him and put little weight on that assertion.

[13]   The Judge described the offending as “more than minor” and while the Judge appeared to acknowledge that offending involving offers to supply, as opposed to actual supply, can have a different assessment of culpability, he did note that offending and actual supplying are treated in the same way.

[14]   The Judge found that Mr Dalwood was on the cusp of the lesser and significant categories, describing Mr Dalwood’s role as “medium-to-low”. The Judge found that Mr Dalwood was his “own man” but must have had some appreciation of the hierarchy of the supply chain, albeit he was at the “lower level”.

[15]   The Judge adopted a starting point of four years’ imprisonment by reference to the decisions of Joyce v R,6 which involved possession of 28.35 grams and supplies of

3.76 grams together with $12,885 in cash and a starting point of four years, and Whiteford v R,7 which involved offers in quantities totalling 53 grams and a starting point of five years.

[16]   The Judge then uplifted the starting point by three months to reflect the fact that Mr Dalwood was offending while subject to a sentence of intensive supervision, and a further three months to reflect Mr Dalwood’s guilty pleas to two charges of breaching that sentence.

6      Joyce v R [2020] NZCA 124.

7      Whiteford v R [2020] NZCA 130.

[17]   The Judge then allowed credits totally 50 per cent, being 25 per cent for     Mr Dalwood’s guilty plea, 15 per cent for addiction (incorporating causative background factors), and 10 per cent for Mr Dalwood’s “aspiration” to undertake rehabilitation.

[18]This led to an end sentence of 27 months’ imprisonment.

[19]   Speaking to home detention, unavailable though it was due to the sentence’s length, the Judge raised concerns around Mr Dalwood’s historical non-compliance with community-based sentences and the need to satisfy sentencing principles around deterrence, denunciation, and protection of the community. Furthermore, the Judge noted that it was difficult for police to monitor adherence with a condition not to take illegal drugs.

Appellant’s submissions

[20]   Ms Saunderson-Warner submitted that the Judge erred in adopting a starting point of four years’ imprisonment. She submitted the Judge’s approach to sentencing did not adequately reflect that the charges were charges of offering (rather than supply), or that Mr Dalwood’s offending was motivated by addiction.

[21]   Ms Saunderson-Warner submitted that because the charges were offering to supply methamphetamine as opposed to actual supplying, there is an inherent difficulty in placing much weight on the quantity of methamphetamine offered. She provided the analogy that an offer to sell a car to 10 people does not mean that there are 10 cars to sell. She submitted that care needs to be taken not to overemphasise the total quantity of methamphetamine and the culpability needs to be assessed with greater reference to other factors, including the role the appellant is playing.

[22]Ms Saunderson-Warner emphasised the following key points:

(a)there were no indications that Mr Dalwood was turning a profit from his offending;

(b)it was well recognised that Mr Dalwood had a serious addiction to methamphetamine, and it was logical to conclude that the lack of indication of profit indicates the sales were to fund his own addiction;

(c)rather than being a substantial aggravating factor as the Judge characterised, the offending over the second period was a classic example of the power of addiction and the addict’s compulsion to pursue funding for drugs “as if it were important for survival” and this was to be starkly contrasted with the moral culpability of an offender who seeks to supply methamphetamine for the cynical purpose of deriving profit; and

(d)there were no indications Mr Dalwood was part of a wider drug-dealing network, he did not have an operational or management function, he was not involved in directing others in supply and was not motivated primarily by financial advantage.

[23]   Ms Saunderson-Warner referred the Court to the case of Tregoweth v R.8 In that case the Court of Appeal was considering an appeal against sentence where the appellant had been initially located with 2.8 grams of methamphetamine, a further    3 grams located when he was strip-searched, and finally an additional 37.3 grams was found on him the following day when he was in his prison cell. This meant that in total the appellant was in possession of 43.1 grams of methamphetamine when he was arrested.

[24]   Ms Saunderson-Warner submitted this case demonstrates that, even where relatively substantial quantities of methamphetamine are involved, lower starting points are adopted in cases where it is accepted that the offending was motivated by addiction rather than by profit.

[25]   Ms Saunderson-Warner also relied on Dunn v Police.9 In that case the appellant was convicted of 22 charges of possession of methamphetamine for supply

8      Tregoweth v R [2021] NZCA 311.

9      Dunn v Police [2020] NZHC 316.

— one for each text that she sent agreeing to supplying methamphetamine. In total the appellant agreed to supply 24.7 grams of methamphetamine.

[26]   Ms Saunderson-Warner said the nature of the offending in that case was similar to that in this case. In that case the sentencing Judge had adopted a starting point of 30 months’ (two and a half years’) imprisonment. On appeal neither party contested that starting point. Gordon J considered that insufficient credit had been allowed for the appellant’s addiction and allowed the appeal, reducing the sentence by four months’ imprisonment.

[27]   Finally on the starting point, Ms Saunderson-Warner submitted that the culpability was similar between the appellant in Dunn and Mr Dalwood in the present case. Both involved offenders who agreed or offered to supply not insubstantial quantifies of methamphetamine, but for reasons where the motivation for the supply was to support his or her own addiction. Counsel submitted that this would support a starting point in the vicinity of three years’ imprisonment in this case.

Submissions for the respondent

[28]   Mr Smith, for the Crown, drew the Court’s attention to the fact that the Misuse of Drugs Act makes no distinction between charges of supplying or offering to supply a Class A controlled drug, in that both are an offence against s 6(1)(c) of the Misuse of Drugs Act and both carry a maximum penalty of life imprisonment.10

[29]   In addition, s 6(4) of the Misuse of Drugs Act provides a presumption of imprisonment in cases of manufacture, importation, supply, offering to supply and possession for supply of a Class A controlled drug.

[30]   Mr Smith relied on Malolo v R where the Court of Appeal considered a similar argument to that advanced in the present case.11 He emphasised that the Court is to draw no distinction between inflicted and attempted harm in order to recognise the severity of harm caused by methamphetamine. He also noted that it is available to the Court to make evaluative findings on the amount of methamphetamine likely utilised

10     Misuse of Drugs Act, s 6(2)(a).

11     Malolo v R [2022] NZCA 399.

by an offender despite a lack of direct evidence and could infer an ability of an offender to make good on each offer. Mr Smith argued the same conclusions should be reached here given the large number of persons Mr Dalwood made offers to, the diversity of amounts for which offers were made, and the persistent and continuous nature of the dealing. He submitted these factors indicated that Mr Dalwood must have had access to a reasonably steady stream of methamphetamine.

[31]   As Mr Dalwood offered a total of 87.45 g of methamphetamine, Mr Smith argued his offending falls comfortably within band 2 of Zhang.12 Further, his lower-level position and addiction were only minor mitigating factors because of the number of persons to whom he was dealing. Mr Smith submitted the sheer quantity of methamphetamine further undermined an argument that it was exclusively an addiction. Further, he submitted the Judge’s assessment of Mr Dalwood’s role as “medium-to-low” was generous. Mr Dalwood was an independent dealer with his own customer base, fulfilled an operational function, and must have had some awareness of the operation above him due to the quantities in which he dealt. With reference to cases where lesser amounts of methamphetamine were present and starting points ranged from just under three years up to four years’ imprisonment, Mr Smith argued the starting point was available to the Judge.

[32]   Mr Smith submitted there cannot be any real argument as to whether the fact that offending occurred while subject to a rehabilitative sentence is an aggravating feature. He submitted an additional three-month uplift for two charges of breaching intensive supervision is unimpeachable. In addition, he submitted any criticism of the sentence is rendered nugatory as no uplift whatsoever was adopted to recognise     Mr Dalwood’s substantial history of similar offending.

[33]   Finally, Mr Smith submitted any perceived defects in the sentence were cured by a generous approach to discounts. A full guilty plea discount was provided when the evidence was overwhelming. A 15 per cent discount to reflect background factors and addiction was also within range. Ten per cent to reflect aspirations of rehabilitation was particularly generous given Mr Dalwood had only made efforts at

12     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 64.

entering a residential rehabilitative programme and had offended while subject to a sentence designed to facilitate rehabilitation.

Discussion

[34]   In the present case Mr Dalwood offered to supply methamphetamine to a large number of persons. Over the first offence period there were “about 16” potential purchasers and over the second period there were 30 potential purchasers.

[35]   The offence periods were between 1 October to 31 October 2021 and between 5 March to 13 March 2022 respectively. In the first period Mr Dalwood offered

28.9 grams and over the second period 58.55 grams.

[36]   Mr Dalwood offered to supply methamphetamine in wide-ranging amounts from “points” up to 7 grams at a time, indicating he had a steady stream of methamphetamine and must have been well connected to a source of the drug.

[37]   The offending could fairly be described as persistent and continuous and not at all consistent with a dealer who was not making good on the offers. Rather, the facts of the offending suggest Mr Dalwood was consistently able to supply methamphetamine to a not insignificant number of persons.

Was a starting point of four years’ imprisonment available?

[38]   Ms Saunderson-Warner raised the argument that little weight should be placed upon the amount of methamphetamine offered by Mr Dalwood. While the logic of her submissions is not in error in a general sense (I accept a supplier of goods may make offers exceeding their actual stock), I consider this is a case where the Court may assume Mr Dalwood had the capacity to “make good” on his offers.13 Not only is this position consistent with the lack of distinction between supply and offering to supply in the Misuse of Drugs Act 1975, but it is also supported by the facts in the present case. Mr Dalwood was offering methamphetamine to a substantial pool of customers, in varying amounts including substantial quantities at a time (up to 7-gram packs) and was doing so over an extended period of time. This would indicate he was

13     Dodd v R [2013] NZCA 138 at [14].

not looking to merely get rid of a one-off, limited quantity of methamphetamine but was connected to an accessible source of the drug. As such, it is not appropriate to apply a  reduced  weight  to  the  87.45  grams  of  methamphetamine  offered  by  Mr Dalwood.

[39]   Given the amount of methamphetamine offered by Mr Dalwood over the two tranches of offending, I find no error in the Judge’s use of band 2 of Zhang.14 This would indicate a starting point of between two to nine years’ imprisonment would be appropriate. That is not the end of the assessment however. The Court of Appeal held that the role an offender performs allows the Court to assess the conduct’s seriousness, the criminality involved, and the inherent culpability of the offending.15

[40]   I recognise the operative effect of Mr Dalwood’s addiction is significant in assessing his role. It goes to Mr Dalwood’s moral culpability and the extent to which his offending was a rational choice. This holds particular relevance when considering his continued offending after having  his  encounter  with  police  in  early  November 2021. It is difficult to assess the commerciality of Mr Dalwood’s offending. Significant sums of cash were not found, and Mr Dalwood deposed that no profits emerged from his dealing. Nevertheless, there is indicia of commerciality (the offers, electronic scales, ziplock bags), and the sheer amount of methamphetamine offered undermines claims of the dealing being solely for his own personal use to feed his addiction. The March offending saw Mr Dalwood make offers of methamphetamine which, if fulfilled, could have netted him in excess of $50,000.

[41]   I therefore place only a small weight on the commerciality of Mr Dalwood’s offending. I consider the District Court Judge was correct in assessing Mr Dalwood as his “own man”. He had an operational role, sourcing his own supply of the drug and managing his own base of customers. He does not appear to have been working on a limited basis under directions and cannot attribute the dealing to naivety or coercion. Viewed holistically, Mr Dalwood fits between the lesser and significant roles as set out in Zhang.

14     Zhang v R, above n 12.

15 At [10].

[42]   Both counsel used Joyce v R in different ways to argue their point.16 There, Mr Joyce was similarly an independent retail dealer of methamphetamine. The balance between addiction and commerciality was more evenly weighted than in the present case as there were clear indications of profit making with some feeding of addiction, but the amount of methamphetamine involved was significantly lesser than here. A starting point of four years’ imprisonment was adopted.

[43]   In Poppen v R, Ms Poppen dealt methamphetamine over a three-month period.17 The total quantity was 43.95 grams but only 8.95 grams were dealt by her personally, the remainder she organised as an intermediary over two transactions. She was described as a street-level dealer with her own customers. Ms Poppen only sold amounts ranging from 0.1 grams to 1 gram at a time and would act as an intermediary for larger orders. There were elements of both addiction and commerciality to her offending (with greater evidence of profit than in the present case). Again, there is more commerciality but significantly lower amounts when compared to the present case. Brewer J ruled that a four-year starting point would only have been appropriate if she had been sourcing and supplying the larger quantities herself, as Mr Dalwood has done here, and adopted a starting point of three years and six months.

[44]   A starting point of four years and six months’ imprisonment was adopted in R v Cossey and upheld on appeal.18 Here the appellant occupied the lowest tier of a methamphetamine operation and was assessed as having a lesser role despite significant commerciality. On at least 36 occasions 102.5 grams of methamphetamine was offered, and on 13 occasions a total of 12.25 grams was supplied.

[45]   The above cases encourage a finding that the starting point adopted in the District Court was within range.

16     Joyce v R, above n 6.

17     Poppen v R [2022] NZHC 364.

18     R v Cossey [2021] NZHC 1333; and Cossey v R [2021] NZCA 677.

Uplift for offending while subject to intensive supervision and breaches of intensive supervision

[46]   The Judge adopted an uplift of three months’ imprisonment  to  reflect that Mr Dalwood had offended while subject to a sentence of intensive supervision. He uplifted the sentence by a further three months to reflect the two charges of breaching the sentence. He did not impose any uplift for Mr Dalwood’s relevant criminal history.

[47]   In respect of the first breach, Mr Dalwood admitted that in October 2021 he had been using drugs. The other breach, however, was representative in nature and involved  five  repeated  failures   to   report   to   his   probation   officer   between 23 November 2021 and 21 December 2021.

[48]   There cannot be any real argument that the offending — having occurred while subject to a sentence imposed by the Court, particularly a rehabilitative sentence — is an aggravating feature. To  the  extent  that  the  offending  was  demonstrative  of Mr Dalwood’s addiction, it is merely evidence of a mitigating feature to be considered at the second stage of the sentencing exercise. It does not, in and of itself, mean an uplift is inappropriate.

[49]   Ms Saunderson-Warner submitted that the uplifts were excessive. She submitted that the concept of “rational choice to offend” ought to play a significant role in this case.19 Although Mr Dalwood was subject to intensive supervision, he was an addict who had “fallen off the wagon”. She submitted he had not made a completely wilful decision such as to commit this methamphetamine offending while subject to a sentence, it was more that he was feeding an addiction. In the circumstances she submitted it would be inappropriate to impose an additional punishment for Mr Dalwood’s failure to comply with the condition not to consume non-prescription drugs.

[50]   Finally, Ms Saunderson-Warner submitted the uplift should have totalled no more than two months.

19     Zhang v R, above n 12.

[51]   There ought to be a distinction between those who offend while subject to a sentence and those whose offences occur while they are not subject to any court order. That distinction should be by way of uplift for offending while subject to a sentence.

[52]   An uplift of only three months to reflect the two charges of breaching intensive supervision is, as Mr Smith submitted, unimpeachable, particularly given one of those charges was representative in nature and followed shortly after a further induction into the sentence.

[53]   It would have been open to the Court to impose a discrete uplift to reflect   Mr Dalwood’s criminal history, for which there was no uplift whatsoever. His history includes  13  convictions  for  offences  against  the  Misuse  of  Drugs  Act  and     10 convictions for offences involving breaches of community-based sentences. On that basis an uplift of a further three months may very well have been available to the Judge.

[54]   Overall therefore an uplift of six months to reflect offending while subject to a sentence and multiple breaches of that sentence was well within the range available, particularly given Mr Dalwood’s history of similar behaviour.

[55]   To the extent that the breaches and offending evidenced Mr Dalwood’s addiction, that was a second stage sentencing consideration. To make allowance at the first stage would result in unmerited double benefit.

Credit for mitigating features

[56]   To the extent that the starting point might have been at the stern end of sentencing, the end sentence cannot be described as manifestly excessive because of the generous allowances made for mitigating features.

[57]   The Judge allowed full credit for Mr Dalwood’s guilty plea for what were seemingly guilty pleas entered at an early stage but in the face of an overwhelming prosecution case.

[58]   The Judge then allowed  15  per  cent  to  reflect  background  factors  and  Mr Dalwood’s addiction, which was perfectly within range.

[59]   The Judge’s further discount of 10 per cent to reflect “aspiration” toward rehabilitation was particularly generous, as although Mr Dalwood had seemingly made attempts to enter a residential rehabilitation programme to no avail he had also been offending while subject to a sentence of intensive supervision, a sentence designed to provide intensive rehabilitative options.

[60]   Furthermore, “aspiration” to rehabilitate is quite different from having taken significant steps toward rehabilitation. While Mr Dalwood may have been entitled to a credit for the disadvantage in his past (a head injury) although it was not causative of addiction issues, only modest credit, if any, should be allowed for an expressed desire to rehabilitate.

[61]   Mr Dalwood was afforded 25 per cent for personal features overall, which was seemingly generous.

Conclusion

[62]   The starting point and uplifts adopted by the Judge were within range. The credits afforded to Mr Dalwood were generous.

[63]   That said, I find that the Judge did not fall into error nor that the overall sentence imposed was manifestly excessive given the circumstances of the offending and Mr Dalwood’s background.

Result

[64]The appeal is dismissed.

Doogue J

Solicitors:

Crown Solicitor, Dunedin CC:

Sarah Saunderson-Warner, Dunedin