Deer v The Queen
[2018] NZHC 206
•21 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-000421
[2018] NZHC 206
BETWEEN LANCE ANDREW NORTON DEER
Appellant
AND
THE QUEEN
Respondent
Hearing: 5 February 2018 Appearances:
M Pecotic for the Appellant
A McConachy for the Respondent
Judgment:
21 February 2018
JUDGMENT OF HINTON J
This judgment was delivered by me on 21 February 2018 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
Maria Pecotic, Barrister, Auckland Meredith Connell, Auckland
DEER v R [2018] NZHC 206 [21 February 2018]
Introduction
[1] Lance Deer pleaded guilty to one charge of possession of methamphetamine for supply in the District Court. Judge Sinclair sentenced him to two years and six months’ imprisonment on 26 October 2017.
[2]Mr Deer now appeals his sentence.
Facts
[3] On Saturday 2 April 2016 Mr Deer and an associate visited a hotel in Auckland. They arrived by motorcycle at about 7.25 pm and parked in a car park behind the hotel. They then entered a room for which they had an electronic key.
[4] Security staff found a bag next to the motorcycle a short time later. Reception staff searched the bag. They found a large amount of cash and two containers filled with white crystalline material. A later search confirmed the bag contained 19.8 grams of methamphetamine, $13,960 in cash and an extendable baton.
[5] Mr Deer approached reception and told them the bag was his. The manager was in the process of contacting the police. He asked Mr Deer for identification. Mr Deer grabbed the bag and ran out of the hotel. Security staff pursued him into the car park.
[6] Mr Deer ran towards the motorcycle on which he arrived. A short struggle ensued after security staff approached him near the motorcycle. Some of the contents of the bag fell onto the carpark. Security staff stayed with Mr Deer until the police arrived.
District Court
[7] Mr Deer was originally charged with possession of methamphetamine for supply and possession of an offensive weapon. He sought a sentence indication for these charges on 2 September 2016, which he declined. Mr Deer was subsequently charged with two other charges but those were withdrawn.
[8] He sought a sentence indication again, seemingly after the Crown chose not to proceed with the offensive weapon charge. Judge Sinclair gave the sentence indication on 24 March 2017. Mr Deer entered a guilty plea to the charge of possessing methamphetamine for supply, but he challenged the degree of commerciality. There was a disputed facts hearing over the ownership of the money located by the Police, this being the only evidence of commerciality. Mr Deer’s partner said the money was hers. Judge Sinclair did not accept her evidence and found the cash was part of Mr Deer’s drug dealing activities. He was sentenced on 26 October 2017. Over the intervening period, Mr Deer was subject to restrictive bail conditions and was in custody for approximately six-and-a-half months. This included time spent in custody in relation to other charges.
[9] Judge Sinclair sentenced Mr Deer to two years and six months’ imprisonment. She adopted a starting point of three-and-a-half years’ imprisonment. She reduced this by 15 per cent for rehabilitative measures and restrictive bail conditions. The Judge further reduced the sentence by 15 per cent for the guilty plea.
Appeal
[10]Mr Deer appeals on the following grounds:
(a)the starting point was manifestly excessive;
(b)the discount for rehabilitation and restrictive bail conditions was insufficient; and
(c)home detention was the appropriate outcome.
[11] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow a sentence appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[12] The appeal must be dismissed in any case that does not meet the above requirements.1
Starting point
[13] The Court of Appeal adopted sentencing bands in R v Fatu for cases involving the sale or supply of methamphetamine.2 Those bands have generally been applied in cases involving possession of methamphetamine for supply. The starting point is set by reference to those bands.
[14] Counsel for Mr Deer submits that the starting point should be between two years and 10 months and three years. She says that there was no evidence of supply or commerciality, other than the quantity of methamphetamine and the cash. She further takes issue with the Judge classifying the struggle between Mr Deer and the security staff as an aggravating factor and says it was the result of an unlawful seizure.
[15]The Crown submits that the starting point was within the available range.
[16] I agree that the starting point was within the available range. The Judge was satisfied that the cash was part of Mr Deer’s drug dealing activities. She had the benefit of a disputed facts hearing on this point and, after cross-examination, rejected evidence to the contrary. I do not disturb that finding on appeal. I accept that there was little other evidence to indicate commerciality, but the Judge was entitled to find there was commerciality involved, with the combination of 18.8 grams and $13,960 in cash in the one bag.
[17] As regards the struggle with security staff, I agree with the Crown submission that the seizure was by security guards who constitute members of the public. It is doubtful whether this could constitute an unlawful search and, even if it could, it was never challenged. In any event, I do not consider this had a material effect on the starting point.
1 See Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
2 R v Fatu [2006] 2 NZLR 72 (CA) at [34].
[18] Possession of 19.8 grams falls at or near the bottom of band two. The Judge correctly identified this. That band involves commercial quantities of methamphetamine, ranging from five to 250 grams. Offending within band two normally attracts a starting point between three and nine years’ imprisonment. The starting point is consistent with this range.
[19] I have also considered the cases referred to by Ms Pecotic, counsel for Mr Deer, the Crown and Judge Sinclair.3 These cases confirm that a starting point of three and a half years was within the available range. In particular, I note that in McGrath,4 where the facts were very similar to here (possession for supply of just under 20 grams,
$12,000 in cash and little else to indicate commerciality), the Court set a starting point of four years. In R v Mills the Court of Appeal upheld a starting point of five years and three months, but that case had more features of commerciality.5 Ms Pecotic further refers to Nouri6 where the Court started below band 2 in Fatu, but there was only 12 grams of methamphetamine and no indication of drug dealing beyond the methamphetamine itself, including no cash, so I do not consider that case comparable.
Discounts for personal factors
[20] Judge Sinclair applied a discount of 15 per cent to recognise rehabilitative measures and restrictive bail conditions. Ms Pecotic says that the rehabilitative measures alone warranted a 10 to 15 per cent discount. She says that a further discount of four to six months should have been applied for the restrictive bail conditions.
[21]The Crown submits that the discount was appropriate.
[22] Mr Deer has completed various rehabilitative courses. He also started his own business and appeared to be doing well. It is fair to say that he has taken significant steps to address his self-confessed methamphetamine addiction.
3 R v De Serville HC Auckland CRI-2006-004-18441, 29 August 2008; R v Burton HC Hamilton CRI-2007-019-9869, 26 February 2008; R v Mikhail HC Wellington CRI-2006-085-5929, 7 July 2008; R v McGrath HC Wellington CRI 2007-078-793, 7 November 2008; R v Baldwin HC Palmerston North CRI-2008-054-1871, 10 September 2009; Yuen v R [2010] NZCA 521; R v Duncan [2012] NZHC 1208; R v Nouri [2012] NZHC 2779; Mills v R [2016] NZCA 245.
4 R v McGrath, above n 3.
5 Mills v R, above n 3.
6 R v Nouri, above n 3.
[23] He has also been subject to restrictive bail conditions. He was initially subject to a 24-hour curfew which was changed to a night time curfew so that he could work. He spent over six months on remand.
[24] The Judge referred to all of these points. The sentencing notes are very thorough.
[25]While a higher discount for these factors may have been open to the Judge,
I do not consider that 15 per cent was outside of the available range.7
[26] I consider that the Judge was correct in declining to give any further discount for remorse. The factors said to show remorse are the guilty plea and rehabilitative efforts. Those were recognised by the Judge through the discounts that were made.
[27] The same applies to what Ms Pecotic suggested were personal factors, such as setting up the business and having to restart his rehabilitation because of the way in which his case proceeded. These are in effect points as to rehabilitation, not new points. Even if they were new, I agree with the Crown that a discount would rarely be available for personal factors in drug offending sentencing, as opposed to rehabilitation. As the Supreme Court said in Jarden v R,8 the personal circumstances of the offender are subordinated to the importance of deterrence. This does not mean that personal circumstances can never be relevant, but I do not consider such a discount, beyond that for rehabilitation, was appropriate here.
Discount for guilty plea
[28] Mr Deer does not now contest the discount for the guilty plea. He accepted the sentence indication on that basis. Ms Pecotic makes the point only that the guilty plea discount is not generous, with which I agree. However, this is not material given my rejection of the points on appeal.
7 Hastings v R [2011] NZCA 105; Williams v R [2016] NZCA 36 at [11]; Chea v R [2016] NZCA 207 at [110]; Parata v R [2017] NZCA 48 at [15].
8 Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
Conclusion
[29] I am not satisfied that a different sentence should be imposed. The main points made on the appeal were arguable, but the end sentence is not manifestly excessive.
[30] A sentence of home detention is not available given the conclusion I have reached.
[31]The appeal is dismissed.
[32]I thank counsel for their very helpful submissions.
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Hinton J
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