Duffell v The Queen
[2017] NZHC 1620
•13 July 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2017-419-000040 [2017] NZHC 1620
BETWEEN BRADLEY MICHAEL DUFFELL
Appellant
AND
THE CROWN Respondent
Hearing: 13 July 2017 Appearances:
S Cameron for the Appellant
R L Mann for the RespondentJudgment:
13 July 2017
JUDGMENT OF MUIR J
This judgment was delivered by me on Thursday 13 July 2017 at 4.45 pm.
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………
Counsel/Solicitors:
S Cameron, Barrister, Hamilton
R L Mann, Crown Solicitors, Hamilton
DUFFELL v THE CROWN [2017] NZHC 1620 [13 July 2017]
Introduction
[1] The appellant, Mr Duffell, pleaded guilty to five charges including indecent assault and drug offending. He was sentenced to two years and eight months’ imprisonment in the District Court. He now appeals against that sentence.
[2] I note that there is a statutory prohibition on publishing any identifying particulars of the victim in relation to the indecent assault.1 I also note that Mr Duffell received a first warning as required under the three-strikes regime on 20
March 2017.2
Background
Charges
[3] On 8 December 2016, Mr Duffell pleaded guilty to the following drug-related charges:
(a) offering to sell a Class C controlled drug, namely cannabis;3
(b)possession of a Class A drug, namely psilocybine (also known as magic mushrooms);4
(c) possession of a Class C drug for sale, namely cannabis;5 and
(d) possession of a Class C drug, namely cannabis seeds.6
1 Criminal Procedure Act 2011, s 203.
2 Sentencing Act 2002, s 86B.
3 Misuse of Drugs Act 1975, s 6(1)(e). This offence carries a maximum penalty of eight years’
imprisonment; see Misuse of Drugs Act, s 6(2)(c).
4 Misuse of Drugs Act, s 7(1)(a). This offence carries a maximum penalty of six months’
imprisonment or a fine not exceeding $1,000; see Misuse of Drugs Act, s 7(2)(a).
5 Misuse of Drugs Act, ss 6(1)(e) and 6(1)(f). This offence carries a maximum penalty of eight
years’ imprisonment; see Misuse of Drugs Act, s 6(2)(c).
6 Misuse of Drugs Act 1975, s s 7(1)(a). This offence carries a maximum penalty of three months’
imprisonment or a fine not exceeding $500; see Misuse of Drugs Act, s 7(2)(b).
[4] On 20 March 2017, Mr Duffell pleaded guilty to one charge of indecent assault,7 that charge having been laid as an alternative charge to the original charge of sexual violation by unlawful sexual connection on the morning of the trial.
Summary of facts
[5] I begin with the indecent assault. On 26 March 2016, the victim travelled from Auckland to visit her twin sister in Hamilton. Her sister is Mr Duffell’s partner, and resides at his address. That night, the victim and her sister went out to a number of nightclubs. They returned to Mr Duffell’s address shortly after midnight. Mr Duffell and his partner went to sleep on a large mattress in the living area, while the victim slept on a smaller mattress next to them. The victim wore a dress and underwear to bed.
[6] During the night, Mr Duffell rolled across the mattress towards the victim, reaching across and touching her underwear in the vicinity of her vagina. He used his erect penis to push her underwear into her genitalia then subsequently did so using his fingers. The victim asked him what he was doing and moved away from him.
[7] The following morning she told her sister, who confronted Mr Duffell. He
replied that he thought he was touching his partner, namely the victim’s sister.
[8] As for the drug offending, police executed a search warrant at Mr Duffell’s
address on 1 June 2016. Police located the following items during the search:
(a) a container with six grams of mushrooms with the appearance of psilocybine (magic mushrooms);
(b) tin foil containing 16 cannabis seeds;
(c) cannabis plant material weighing approximately 46 grams;
7 Crimes Act 1961, s 135. This offence carries a maximum penalty of seven years’ imprisonment.
(d) three cell phones and several SIM cards, which (upon further analysis)
revealed numerous offers by Mr Duffell between 20 March 2016 and
30 May 2016 to sell cannabis. The Crown alleges that the minimum known amount of cannabis that Mr Duffell offered to sell was 102 grams with a value of $1,620.
[9] When spoken to by police, Mr Duffell indicated that the magic mushrooms belonged to a friend, but he accepted that the cannabis was his own. He stated that it was for his own use and he would also give it to friends.
Personal circumstances
[10] Mr Duffell is aged 35. He has a lengthy criminal history, having committed a total of 32 offences dating between December 1999 and November 2013. All of these are relatively minor, and include offences such as assault, disorderly behaviour, resisting police, and multiple breaches of protection orders and supervision conditions. He has previously been convicted of possessing and cultivating cannabis, but has no prior convictions in relation to Class A drugs or sexual offending.
[11] The pre-sentence report provided by the Department of Corrections places Mr Duffell at a high risk of re-offending and a high risk of harm to others. The report writer considers that Mr Duffell shows no empathy for his victims or remorse for his offending, and lacks motivation to engage in rehabilitation. He generally lacks insight into his offending and shifts blame. He is described as having a sexually impulsive nature and a sense of entitlement, as well as probable substance abuse issues.
[12] The report recommends imprisonment, as well as various rehabilitative steps such as drug and alcohol counselling and psychiatric assistance.
District Court sentencing decision
[13] Mr Duffell appeared for sentencing before Judge Dawson in the District Court on 9 May 2017.8 I take the following from his sentencing notes, although I note that Ms Cameron for Mr Duffell contends that there are small discrepancies between what was said at the hearing and what was recorded in the sentencing notes.
[14] Judge Dawson outlined the charges, the relevant facts and Mr Dawson’s personal circumstances. He highlighted denunciation, deterrence and promotion of a sense of accountability for the harm caused as relevant purposes of sentencing.
[15] In terms of aggravating factors, Judge Dawson noted the impact of the indecent assault on the victim, including her relations with her sister and her ability to work. He also noted that there had been an abuse of trust. As for the aggravating factors with respect to the drug offending, the amount of cannabis offered for sale was a total of 102 grams to a value of $1,620, and multiple offers were made. Mr Duffell’s previous convictions were a personal aggravating factor.
[16] The Judge acknowledged that Mr Duffell pleaded guilty immediately prior to trial. However, he considered that the plea came very late, the Crown having previously offered him that resolution, which he declined. He decided on a 10 per cent discount for the guilty plea in respect of the indecent assault charge.
[17] The Judge also acknowledged that Mr Duffell had expressed remorse through his counsel, but considered that the pre-sentence report was not favourable to him.
[18] The Judge identified indecent assault as the lead offence, and imposed a starting point of 18 months’ imprisonment. He deducted two months from that for the guilty plea, reaching an end sentence of 16 months’ imprisonment on this charge.
[19] With respect to the charge of offering to sell cannabis, the Judge noted that this fell within the lower end of category two in R v Terewi,9 and adopted a starting
point of two years’ imprisonment. He reduced the starting point by six months in
8 R v Duffell [2017] NZDC 12685.
9 R v Terewi [1999] 3 NZLR 62 (CA).
light of the early guilty plea, reaching an end sentence of 18 months’ imprisonment
on this charge.
[20] He then took into account the totality principle, and deducted two months from the drug offending on that basis.
[21] He ordered that the sentence of 16 months’ imprisonment for the indecent assault and the sentence of 16 months’ imprisonment for the charge of offering to sell cannabis be served cumulatively.
[22] On the remaining charges he ordered that the following sentences be served concurrently:
(a) Possession of cannabis for sale: 18 months (b) Possession of cannabis seeds: one month (c) Possession of psilocybine: one month
[23] Mr Duffell was accordingly sentenced to two years and eight months’
imprisonment in total.
Appellant’s submissions
[24] Mr Duffell appeals against that sentence on the grounds that: (a) there was an inadequate discount for the guilty plea;
(b) there were discrepancies between the Judge’s sentencing notes and the
record of hearing;
(c) there was ambiguity in the imposition of concurrent and cumulative sentences for interrelated drug offending; and
(d) an inadequate reduction was made for totality.
Discount for guilty plea
[25] Ms Cameron submits that Mr Duffell pleaded guilty to the indecent assault charge at the first reasonable opportunity, and therefore was entitled to a discount of
25 per cent in accordance with Hessell v R.10 She notes that while there were
informal discussions between the defence and the Crown about pleading guilty to a charge of indecent assault, the Crown did not formally place the charge of indecent assault before Mr Duffell until the trial and the trial was accordingly Mr Duffell’s first opportunity to plead guilty to that charge.
[26] Ms Cameron does not seek any additional and separate discount for remorse.
Discrepancies between sentencing notes and record of hearing
[27] Ms Cameron points out the following discrepancies between the sentencing notes and the record of hearing:
(a) On the charge of possession of cannabis, the sentencing notes impose a sentence of 18 months’ imprisonment, while the record of hearing indicates a sentence of only one month.
(b)On the charge of possession of psilocybine, the sentencing notes impose a sentence of one month, while the record of hearing indicates a sentence of 16 months.
[28] Referring to R v Tukuafu,11 Ms Cameron submits that where there is a discrepancy, what was said in Court should prevail. Ms Cameron seeks correction of
the record.
10 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
11 R v Tukuafu [2013] NZCA 103.
Imposition of concurrent and cumulative sentences
[29] Ms Cameron accepts that indecent assault was the lead offence and that the
Judge was correct to impose a cumulative sentence for the drug offending.
[30] However, she submits that it is unclear whether the concurrent prison terms for the further drug charges were imposed concurrently on the indecent assault charge or on the charge of offering to sell cannabis. She says that this should not be ambiguous, and that the sentences for all the secondary drug offences should have been made concurrent on the lead drug offence, namely offering to sell cannabis. A reduction for totality could then be made in the context of all the drug offences taken together.
[31] Ms Cameron points out that the sentence for offering to sell cannabis must have been made concurrent with the indecent assault charge, otherwise the total prison term would have been two years and 10 months, not two years and eight months.
Reduction for totality
[32] Ms Cameron submits that an adjustment of two months for totality was insufficient. The cannabis offending was inherently less serious than the indecent assault and involved only a low level of commerciality. It could have attracted a starting point of less than two years. If a two year starting point was to be adopted, the adjustment for totality should have been greater. The end sentence for the drug offending should have been below 16 months, to reflect its lesser seriousness as compared to the indecent assault. Ms Cameron submits that a total sentence of 12 months’ imprisonment for the drug offending would have been appropriate.
Other matters
[33] Ms Cameron seeks home detention if, on appeal, the end sentence reaches
two years’ imprisonment.
[34] Ms Cameron also notes that Mr Duffell’s father is terminally ill with cancer,
and attaches a medical letter confirming this. Mr Duffell has been moved to South
Auckland Correctional Facility at Wiri. She seeks that Mr Duffell be retained at Spring Hill Corrections Facility to facilitate visits by his father, who resides in Huntly.
Respondent’s submissions
Discount for guilty plea
[35] The Crown notes that Mr Duffell was in fact given a discount of a little over
11 per cent for his guilty plea. It submits that this was generous given the circumstances: the victim was present in Court that morning and preparing to give evidence. Mr Duffell could have indicated a willingness to enter a guilty plea to the charge during informal discussions with the Crown, in which case the Crown would have given him an opportunity to do so prior to trial. Ms Cameron acknowledges in her submissions that Mr Duffell “had previously been disinterested in such a resolution”.
Discrepancies between the sentencing notes and the record of hearing
[36] The Crown concurs with defence counsel that where there is a discrepancy, what is said in Court will prevail over the written record. It does not consider that correction of the record is strictly an issue for appeal.
Imposition of concurrent and cumulative sentences
[37] The Crown submits that the focus on appeal should be the overall sentence, which it accepts to be two years and eight months’ imprisonment.
Reduction for totality
[38] The Crown submits that the totality principle does not automatically require an adjustment to cumulatively imposed sentences. In this case, the end sentence of two years and eight months was not out of proportion to the gravity of the overall offending. Each discrete category of offending for which Mr Duffell was sentenced were relatively serious. The starting points were unremarkable, and appropriately captured Mr Duffell’s culpability.
Analysis
[39] I address each of Mr Duffell’s grounds of appeal in turn, bearing in mind that the Court may only allow the appeal if there is an error in the sentence and a different end sentence should be imposed.12 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.13
Discount for guilty plea
[40] The Crown submits that the 11 per cent discount was appropriate for Mr Duffell’s plea of guilty to indecent assault, while defence counsel seeks the maximum discount of 25 per cent.
[41] The Supreme Court’s decision in Hessell v R is the leading authority on discounts for guilty pleas. McGrath J explained the policy reasons behind allowing a guilty plea discount as follows:14
In the administration of criminal justice, courts give credit in sentencing for a guilty plea principally for policy reasons. [This] reflects the benefits that a guilty plea delivers to the administration of justice and to those who otherwise must participate in the trial process. Avoiding the need for a trial saves the government costs associated with the judiciary and providing prosecution and defence services (the latter most often through legal aid). There are also savings in fees paid to witnesses and jurors and in costs associated with the use of court facilities. Another benefit is the reduction in the back-log of trials.
[42] His Honour further indicated that in determining the appropriate discount for a guilty plea:15
… the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.
12 Criminal Procedure Act 2011, s 250(2).
13 Ripia v R [2011] NZCA 101 at [15].
14 At [45].
15 At [74].
The reduction for a guilty plea component should not exceed 25 per cent. That upper limit reflects the fact that remorse is dealt with separately. Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.
[43] The Crown alleges he did not plead guilty to that charge at the first reasonable opportunity.
[44] It is common ground that some weeks prior to the filing of the original Crown Charge Notice dated 7 September 2016 (in which the defendant was charged with sexual violation by unlawful sexual connection) the Crown asked then defence counsel whether the sexual component of the offending could be resolved on the basis of the defendant entering a guilty plea to a charge of indecent assault. Ms Cameron calls this an “informal” offer to the extent the police had not yet engaged with the victim to solicit her views. Ms Mann says that is correct, but that it is nevertheless part of the “particular inquiry” the Supreme Court mandates the Court to undertake in any assessment of whether the guilty plea came at the earliest reasonable opportunity. In any event, it is common ground Mr Duffell was “disinterested” in such offer at the time, maintaining a position that he was innocent in relation to the alleged sexual offending. It is also common ground that no defence initiative occurred over the intervening months to resolve the charge on that or any other basis.
[45] Then in the week before trial the Crown sought formally to add both an additional and alternative charge of indecent assault. That application was resolved on the morning of trial and after discussions between defence and Crown counsel on a basis that the alternative charge would be laid and the defendant would plead guilty to it.
[46] Ms Cameron says that if there had been what she terms a “formal” offer, particularly if the offer was made in the context of what were already alternative charges, then she would accept that the plea did not occur at the earliest reasonable opportunity but in this case there was no formal offer or indeed alternative charge until the morning of trial.
[47] I am reluctant to place the analysis in such a formalistic straitjacket. The decision in Hessell seems to me to suggest otherwise. Moreover, there are a number of cases where the courts have recognised some responsibility on the part of defence counsel to themselves open discussions in this context if a claim to a full guilty plea discount is subsequently to be made.16 I accept Ms Mann’s submission that where the discussions are initiated by the Crown and the response provides no encouragement at all, there is an even stronger case for suggesting that, when the defendant ultimately changes his or her mind, the plea does not come at the earliest
reasonable opportunity. I am conscious also of the Supreme Court’s observation in Hessell that the defendant is already receiving a benefit as a result of plea bargaining in the form of a lesser maximum sentence and for that reason also it may not be appropriate to give full credit for the guilty plea.17
[48] On the particular facts of this case it was in my view an available conclusion that the plea had not come at the earliest reasonable opportunity. The word “reasonable” in this context invokes consideration of the entire factual matrix. At a minimum the defence was on notice that any initiative prior to trial to resolve the sexual violation charge on the basis of a guilty plea to the lesser charge was likely to receive a favourable response.
[49] In respect of the drug offending there is no issue that the 25 per cent deduction from sentence allowed by the Judge for early guilty pleas was appropriate.
Discrepancies between the sentencing notes and the record of hearing
[50] Defence and Crown counsel agree that the oral record of the hearing should prevail in the event of discrepancies with the written sentencing notes. In this case,
there are only minor discrepancies with respect to the secondary drug offences, for
16 See Pokai v R [2014] NZCA 356 at [69], where the Court did not award a full guilty plea discount and commented that “it was open to the appellants to offer to plead guilty to manslaughter at any time after they were initially charged with murder”; see R v Shone [2009] NZCA 183 at [23] where the Court did not give a full guilty plea discount and commented “[there] was nothing to suggest that the appellant was willing to plead to the lesser offences earlier in the piece”; see Heta v R [2012] NZCA 267 at [29], where the Court gave a full discount for a guilty plea to amended charges on the first day of trial, but noted that Ms Heta had acknowledged responsibility prior to trial and even then it “would have been preferable for her [counsel] to have written to the police and the Crown Solicitor, with a copy to the Court, stating that she was prepared to plead to offending on the scale she admitted.”
17 At [62].
which concurrent sentences were imposed. The starting points on the two lead offences of indecent assault and offering cannabis for sale are unaffected, as is the end sentence of two years and eight months. As the Crown submits, the appellate Court’s primary concern is with the end sentence, rather than the way in which it was reached.18 I therefore do not consider it necessary to take any action with respect to the discrepancies in the record.
Reduction for totality
[51] I have some concerns about the Judge’s approach to totality. His statement of
reasons for making a deduction for totality in my view is problematic:19
The sexual offending and the drug offending are relatively discrete and separate offending and totality is therefore low and I will deduct a further two months from the drug offending for that.
[52] Totality assessments should refer to the gravity of the overall offending, including a consideration of the overall culpability of the offender.20 The essential inquiry is no more nor less than whether the overall sentence is one disproportionately severe having regard to the totality of the offending. The principle does not automatically require an adjustment to cumulatively imposed sentences. Where the total end sentence is not “wholly out of proportion to the gravity of the overall offending”, no reduction is required.21 The fact that the sexual offending and the drug offending are relatively discrete does not of itself reflect on whether a totality adjustment is necessary. Rather it explains why cumulative sentences should be imposed for the two sets of offending.
Imposition of concurrent and cumulative sentences
[53] There was some confusion in the Judge’s sentencing notes as to cumulative and concurrent sentences, which may have impacted the totality assessment.
[54] Although the indecent assault and the drug offences were properly regarded as discrete offending, warranting cumulative sentences, it is not clear whether the
18 See R v Williams CA91/00, 31 May 2000 at [11], cited in R v Dodd [2013] NZCA 270 at [31].
19 At [18].
20 See Sentencing Act, s 85; R v Bradley [1979] 2 NZLR 262 (CA).
21 Ashcroft v R [2014] NZCA 551 at [32].
sentences for the drug offences (which are expressed as being concurrent) are concurrent on the sentence for indecent assault or the sentence for offering cannabis for sale. The Judge appears to have made them concurrent on the combined end sentence of two years and eight months, whereas they should have been made concurrent with the sentence on the lead drug offence.
Error in sentencing
[55] For the reasons indicated I consider that the Judge erred in his assessment of matters relevant to a totality adjustment, with the problem potentially compounded by his approach on the subsidiary issue identified.
[56] However, it is not enough to identify an error in the sentencing process; the end sentence itself must also be manifestly excessive if the appeal is to be allowed. In my view the end sentence of two years and eight months was well within the permissible range. I will demonstrate that by conducting a “notional” re-sentencing exercise.
Cumulative or concurrent sentences
[57] First, the sexual offending and the drug offending are sufficiently different in kind and unconnected that they should attract cumulative sentences.22 The sentencing Judge was clearly correct in that regard.
Sexual offending
[58] Indecent assault carries a maximum penalty of seven years. There is no tariff sentencing decision for indecent assault, so I have considered a number of comparable cases. I begin by noting that the aggravating features of this offending include the victim’s vulnerability, in that she was sleeping at the time of the assault, and the abuse of trust involved, in that Mr Duffell was the victim’s sister’s partner
and the victim was staying at his house.23
22 Sentencing Act, s 84(1).
23 These are recognised as aggravating factors in R v AM (CA27/2009) [2010] NZCA 114, [2010] 2
NZLR 750; see also Sentencing Act, s 9(1).
[59] In Johnson v R,24 the victim was a friend of the defendant and was staying at his house. He waited until she was asleep to remove all her clothing and indecently assault her by touching and kissing her vagina and breasts. The Court of Appeal upheld a starting point of three years, noting that the victim had sustained injuries and that there was an element of premeditation. The present case is less serious, given that there is no evidence of injuries to the victim or any premeditation on Mr Duffell’s part. Nor did Mr Duffell remove victim’s clothing with the result that the contact was not “skin on skin”. Nevertheless, he too abused the trust the victim placed in him and took advantage of her vulnerability while she was sleeping.
[60] In Tai v R,25 the 14-year-old victim was staying at her uncle’s house. During the night, while she was asleep, her uncle knelt down beside her and touched her breast, genital and stomach areas over her clothing. He was found guilty of indecent assault of a young person. The Crown suggested a starting point of 18 months’ imprisonment, and he was ultimately sentenced to 16 months’ imprisonment. The Court of Appeal upheld this sentence, noting that:26
There is no doubt that the Judge was right to regard a sentence of imprisonment as the ordinary sentencing response in cases of indecent assault of this kind.
[61] The present case is more serious, given that Mr Duffell penetrated the victim’s vagina with his erect penis and with his fingers, albeit over her underwear. In my view the starting point adopted by the Judge of 18 months’ imprisonment was generous and one close to two years would not have been out of proportion to the gravity of the offending.
Drug offending
[62] The four drug-related charges are similar in kind, and concurrent sentences are appropriate.27 I adopt the charge of offering cannabis for sale as the lead offence,
as it is the most serious of the four offences. It attracts a maximum sentence of eight
24 Johnson v R [2016] NZCA 144.
25 Tai v R [2011] NZCA 270.
26 At [22].
27 Sentencing Act, s 84(2).
years and involved the greatest quantity of controlled drugs found during the search, namely 102 grams.
[63] R v Terewi is the tariff sentencing decision for cannabis cultivation and dealing.28 It sets out the following bands:
Category 1: consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence …
Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
Category 3: is the most serious class of such offending. It involves large- scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.
[64] Mr Duffell was a reasonably low-level but consistent dealer. Over a two month period, he had made numerous offers of sale but for what was a reasonably modest quantity of cannabis. He falls within Category 2 of Terewi, meaning that a starting point of between two and four years is appropriate. There is limited scope to go below two years, because:29
The courts adopt a reasonably uniform approach when it comes to drug dealing … people who deal in drugs in any quantity go to prison. That is the only way in which the Court can properly send a message that drug dealing will not be tolerated. Issues of deterrence and denunciation are always to the forefront when it comes to dealing in drugs.
At the same time, however, the courts are required by the Sentencing Act
2002 to ensure that the sentences that it imposes are consistent with those imposed in relation to other offending in similar cases. It is also required to impose a sentence that is the least restrictive outcome in the circumstances, and that provides, so far as possible, for rehabilitation and reintegration of the offender into the community.
[65] The summary of facts lacks detail as to whether the offers to sell were successful, and I also note that Mr Duffell was not found in possession of large sums
28 Although Terewi refers to cultivation of cannabis, the Court of Appeal has since confirmed that the Terewi bands are also applicable to dealing offences; see R v Leighs CA360/02, 15
September 2003 at [11]; Bishop v R [2010] NZCA 66 at [19].
29 R v Wolland HC Auckland CRI-2010-092-13356, 18 February 2011 per Lang J.
of cash, scales or other equipment to suggest a large commercial operation.30
Although I would not have adopted a starting point above two years for these reasons, I consider that a starting point of two years (at the bottom of Category 2) was one open to the Judge. Again although Ms Cameron submits that a lower starting point “could” have been adopted she does not (and entirely responsibly) submit this should have been the case.
[66] In relation to the three remaining drug-related offences, I consider a modest uplift was appropriate. The most serious of the additional charges is possession of cannabis for sale (46 grams), which also attracts a maximum penalty of eight years and would likely fall within Category 2 of Terewi if Mr Duffell had been sentenced on it separately. However, the commerciality of that offending is adequately captured in the lead drug offence, in the sense the possession and offers to supply were inextricably linked. I would have uplifted the sentence on the lead drug offence by three months to reflect the other drug offending.
Further adjustments
[67] Like the sentencing Judge, I would not have imposed any further uplift on account of Mr Duffell’s previous convictions. He does not have a history of drug dealing despite some minor drug-related convictions. His most recent cannabis- related offence occurred in late 2009.
[68] Typically at this point a sentencing judge would then stand back from the cumulative sentences of two years’ imprisonment (indecent assault) and two years three months (drug offending) and assess whether the end result (four years three months) was disproportionate to the gravity of the overall offending, avoiding any double benefit to the defendant which might arise from the assessment of uplift on the drug offending and from such final totality assessment. In this case, however,
because different discounts applied on the respective guilty pleas it was probably
30 Compare Codlin v R [2012] NZCA 71, where the offender was found in possession of tick lists, electronic scales, a security monitor camera and $1,970 in cash. The Court of Appeal considered this a “reasonably sophisticated” commercial enterprise, despite the fact that the offender was found in possession of only 32.3 grams of cannabis. The Court adopted a starting point of two years and nine months’ imprisonment.
necessary to address that part of the sentencing methodology first. There is no immutable approach in this respect. It is the end result which matters.
[69] Applying a 10 per cent reduction for guilty plea on the indecent assault against my starting point of two years’ imprisonment, the resultant sentence would have been one year nine months’ imprisonment.31 Applying a 25 per cent discount for the drug offending, the resultant sentence would have been one year eight months’ imprisonment.32
[70] On the basis of a cumulative sentence of three years five months’ imprisonment, a final totality adjustment in the order of six to seven months may have been appropriate. However, this was a relatively serious indecent assault involving digital and penile penetration albeit through underwear and the evidence was of consistent albeit relatively low level drug dealing over a reasonably extended period. A final sentence in the order of two years 10 months’ imprisonment would therefore have been fully justified.
[71] It follows from this analysis that Judge Dawson’s sentence of two years and eight months’ imprisonment was not in my view manifestly excessive; rather it could be described as generous to Mr Duffell.
Result
[72] I dismiss the appeal.
31 I have rounded the calculation down in terms of calculation of years and months. In strict arithmetical terms it equates to a 12.5 per cent discount.
32 Again rounded down.
Postscript
[73] Mr Duffell’s father is terminally ill. If, consistent with operational requirements, the defendant could continue to be held at Spring Hill Correctional Facility (which I am told is the greatest distance it is realistic for his father to travel)
there would appear to be strong humanitarian grounds for doing so.
Muir J
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