Dunn v Police

[2020] NZHC 316

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-40

CRI-2019-488-44 [2020] NZHC 316

BETWEEN

LEAH DUNN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

26 March 2020

Appearances:

D Sayes for the Appellant

C Taylor for the Respondent

Judgment:

26 March 2020

ORAL JUDGMENT OF GORDON J

Solicitors:           Crown Solicitor, Whangarei Counsel: D Sayes, Auckland

DUNN v POLICE [2020] NZHC 316 [26 March 2020]

Introduction

[1]                 Leah Dunn pleaded guilty to 22 charges of possession of methamphetamine for supply,1  and one charge of breach of community work.2  She was sentenced to   22 months’ imprisonment on 18 November 2019 in the District Court.

[2]                 Ms Dunn appeals her sentence on the grounds that the Judge erred by combining the discounts for the causative link between addiction and offending and for the guilty pleas, thus giving an insufficient discount.

Background facts

[3]                 Stated shortly, Ms Dunn texted people agreeing to supply methamphetamine 22 times. Each circumstance gave rise to a corresponding charge of possession for supply.

[4]                 Previously Ms Dunn was sentenced to 140 hours of community work. She only completed one and a half hours, leaving an outstanding total of 138.5 hours. This occasioned the breach of community work charge.

District Court Decision

[5]                 The Judge, in considering the charges of supplying methamphetamine, calculated that Ms Dunn had agreed to supply, in total, 24.7 grams of methamphetamine to her various associates. Her Honour commented that many of Ms Dunn’s previous offences were for drug-related offending. The Judge acknowledged Ms Dunn’s honesty regarding her self-confessed methamphetamine addiction, which fueled the offending behind the current charges.

[6]                 Her Honour placed Ms Dunn’s offending in band 2 of Zhang v R, namely commercial quantities between five and 250 grams.3 The Judge went on to examine Zhang, highlighting that in setting a starting point, the Court of Appeal had found the

1      Misuse of Drugs Act 1975 s 6(1)(c). Maximum penalty: life imprisonment.

2      Sentencing Act 2002 s 71(1)(a). Maximum penalty: three months’ imprisonment or a fine not exceeding $1,000.

3      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

quantity of drugs relevant but not the sole determinant. Furthermore, the Judge discussed how addiction could be a personal mitigating feature and that it could be a factor for the Court to consider in Ms Dunn’s case.

[7]                 The Judge considered a starting point of 30 months appropriate, although no reasons were provided for this. No uplift was applied, but a 25 per cent global discount was given for both Ms Dunn’s guilty plea and her addiction. This rendered an end point of 22.5 months’ imprisonment, which the Judge rounded down to 22 months’ imprisonment.

[8]Ms Dunn was convicted and discharged in respect of community work.

Approach on Appeal

[9]                 To allow this appeal I must be satisfied, in accordance with s 250 of the Criminal Procedure Act 2011, that an error occurred in imposing the sentence, and that a different sentence should be imposed.4

[10]              An appeal can be allowed either because the sentence was manifestly excessive or wrong in principle.5 In Tutakangahau v R the Court of Appeal stated that the concept of “manifestly excessive” is a means of examining the significance of the error in a sentence, to decide whether a different sentence should be imposed.6 The court’s focus should be on the final sentence imposed rather than its component parts or how the sentence was eventually reached.

[11]              Neither party contests the starting point of 30 months’ imprisonment. It is in accordance with the appropriate band in Zhang, and hence was well within the available range for a starting point in this case.

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

5      R v Brooks [1950] NZLR 659 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

Counsel’s Submissions

The Appellant

[12]              Mr Sayes for Ms Dunn submits that the treating of the guilty plea and the addiction discount together was inappropriate.7

[13]              He further submits that the guilty plea discount would have warranted an independent 25 per cent, and that since the police had not contested that Ms Dunn was addicted and was offending to feed her addiction, thus providing the necessary causal link, some discount would be appropriate.

The Respondent

[14]              Mr Taylor, counsel for the respondent, submits that the Clifford approach is not mandatory, and the question is simply whether the final sentence was just.

[15]              Mr Taylor also submits that the Judge’s rounding should be included in the calculation of the discount percentage, which comes to a shade over 25 per cent. This indicates that some independent discount was given for addiction, and the Judge’s initial assessment ought to be left intact. However, in oral submissions, Mr Taylor did accept that perhaps a greater discount for addiction would have been warranted.

Analysis

Zhang on addiction

[16]              Zhang makes it clear that addiction can stand as an independent discount.8 Firstly, it was noted that such considerations can impair the rational choice made to offend, and thereby diminish moral culpability.9 Secondly, diminished opportunity to make a rational choice by consequence, diminishes the deterrent aspect of

7      In that it deviates from the approach in Clifford v R [2011] NZCA 360, [2012] 1 NZLR 23 at [57]- [63].

8      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138].

9      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138].

sentencing.10 Thirdly, such impairments can alter the effect of a term of imprisonment on the individual offender, adding to its severity.11

[17]              It was said in Zhang that a discount of up to 30 per cent may be appropriate. However, this was not considered to be an absolute upper limit, and rehabilitative options should be considered in sentencing offenders.12

[18]              It is therefore clear that if addiction is made out and the necessarily causal link with the offending is established, potentially quite substantial discounts might be made, independent of a guilty plea.

[19]              In Zhang one of the defendants, Ms Crighton received a 30 per cent discount for both mental health and addiction vulnerabilities.13 Ms Crighton had suffered abuse as a child, experienced abusive and violent intimate relationships, and suffered from post-traumatic stress disorder and depression. She offended to pay for her own drug use, and a causative link between her methamphetamine use and offending was evident. These findings were confirmed by a psychologist’s report.14 The Court declined to separate the mental health and addiction discounts because they were closely intertwined.

[20]              In Tuuta v R the defendant was charged with several offences, the leading charge being possession of methamphetamine for supply. The question of whether addiction could warrant a discount was discussed. The issue was the limited evidential foundation. The court pointed out that the onus was on the offender to establish the extent and effect of addiction to the civil standard of proof.15 The Court acknowledged there was some evidence in the pre-sentence report (which mentioned attendance at a drug course) and Mr Tuuta’s criminal history, but was not persuaded it was enough to warrant a larger discrete discount than its general inclusion in a discount given for remorse and rehabilitation prospects.16

10 At [138].

11 At [138].

12     At [149] and [150].

13     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [199].

14     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [199].

15     Tuuta v R [2019] NZHC 2788 at [32].

16     Tuuta v R [2019] NZHC 2788 at [32] and [33].

[21]              In Govender v R there was no independent evidence before the Court of the offender’s addiction. The Court held that the evidence provided, that is, self-reported information in the pre-sentence report and a letter from the Salvation Army referencing proposed participation in their Bridge Programme (which ultimately never occurred), did not discharge the evidential burden of proof of addiction required.17 The Judge alluded to the fact that a clinical assessment of addiction such as a Community Alcohol and Other Drug Services (CADS) Report might have been more useful.18 A causative link between the offending and addiction was also not evident.19 No discount for addiction was given.20

Is an addiction discount justified here?

[22]              For Ms Dunn to receive a discrete discount for her addiction, Zhang requires a causative link between the addiction and the offending, and persuasive evidence of addiction to a level that can discharge a civil burden.21

[23]              It would appear there is  no  issue  with  the  addiction  being  causative  of Ms Dunn’s offending. Mr Sayes submits Ms Dunn only supplies methamphetamine to provide for her own drug usage. That was accepted by the police in their initial opposition to bail form. The District Court Judge appeared to have accepted that proposition somewhat because she purported to include addiction in a combined discount. The Crown does not submit that addiction should not have been included in the discount given by the District Court Judge at all, rather, at least in written submissions, that the combined discount for the guilty plea and addiction was adequate.

[24]              Both parties agree that addiction is present here and is causative of the offending. As I have noted, the Police conceded the point in their bail opposition, where it is recorded that the appellant was a methamphetamine addict and expressed concern that she would reoffend to feed her habit. I am satisfied this meets the civil standard.

17     Govender v R [2019] NZHC 3212 at [17] and [23].

18     Govender v R [2019] NZHC 3212 at [17].

19     Govender v R [2019] NZHC 3212 at [20] and [23].

20     Govender v R [2019] NZHC 3212 at [23].

21     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].

What measure of addiction discount is appropriate?

[25]              The situation here is not so clear-cut as in Ms Crighton’s case in Zhang.22 There a 30 per cent discount was given, in very decisive circumstances. Ms Crighton’s case was, in my view, somewhat exceptional and resulted from the concatenation of addiction causing the offending with mental health concerns, and even partially a defence of compulsion. However, I accept a substantial discount is still nevertheless appropriate. It is clear on the evidence and accepted by the Judge, that Ms Dunn’s level of addiction is severe. On the somewhat limited information available to the Court, I consider that a 20 per cent discount is warranted.

[26]That would bring the sentence down to one of 24 months.

The Guilty Plea

[27]              There is no contest that the guilty plea was entered at the earliest reasonable occasion and hence that a full 25 percent discount is appropriate.

[28]The resulting final sentence would therefore be 18 months’ imprisonment.

Result

[29]              Adopting the Clifford approach makes a difference of four months’ imprisonment. That is sufficient for a determination that the sentence under appeal was manifestly unjust when regard is had to the overall length of the sentence, and the fact that there was effectively no real discount for addiction.

[30]              The appeal is allowed and a sentence of 18 months’ imprisonment is substituted.

Gordon J

22     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [199]