ELIJAH DENNIS WATERMAN AND THE KING

[2024] NZHC 2687

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-0082

[2024] NZHC 2687

BETWEEN

ELIJAH DENNIS WATERMAN

Appellant

AND

THE KING

Respondent

Hearing:	17 September 2024
Appearances:	STL Teppett for appellant R A Greenhalgh for Crown
Date of judgment:	17 September 2024

REASONS FOR JUDGMENT OF JAGOSE J

This reasons for judgment was delivered by me on 17 September 2024 at 3.30pm.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

STL Teppett, Barrister, Auckland Hamilton Legal, Hamilton

WATERMAN v R [2024] NZHC 2687 [17 September 2024]

[1]    Elijah Waterman appeals the 8 May 2024 decision of Judge N D Cocurullo in the District Court at Hamilton,1 sentencing him to four years and seven months’ imprisonment concurrently on his guilty pleas to charges of manufacturing and offering to supply methamphetamine.2 A further charge, of conspiring so to manufacture,3 was dismissed.4

Background

[2]    In the course of a 2021 operation to target methamphetamine manufacture and supply in the Waikato region, police identified involvement of a group of people headed by Huia Maxwell Edwards. Mr Edwards was sentenced to seven years’ imprisonment,5 from a 13-year starting point (calculated as including seven years and six months for his involvement in the manufacture and supply of 530 g of methamphetamine).6 The group included Mr Waterman, who was involved in facilitating or arranging methamphetamine manufacture for Mr Edwards.

[3]    Mr Edwards’ intercepted communications revealed his 1 September 2021 discussion with another defendant of manufacture being completed in Auckland by someone closely associated with Mr Waterman. The discussion included how the methamphetamine might be collected from Mr Waterman, given border restrictions then in place between the Auckland and Waikato regions to manage COVID-19 in the community. Also discussed was Mr Edwards’ description of a video call in which Mr Waterman had shown him the “explosion part” of the manufacturing process.

[4]    Over  the  following  week,  Mr  Waterman  was   present   at   his   associate’s manufacture of approximately 280 g of methamphetamine in Auckland’s Clendon Park, which Mr Waterman assisted by packing up afterwards. Mr Edwards and Mr Waterman then arranged for the methamphetamine’s delivery to Mr Edwards. This was the basis for the manufacturing charge.

1      R v Waterman [2024] NZDC 10374.

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

3      Section 6(2A).

4      Criminal Procedure Act 2011, s 147.

5      R v Edwards [2024] NZDC 1668 at [24].

6 At [10].

[5]    Analysis of text communications on Mr  Waterman’s  cellphone  identified Mr Waterman had offered to supply methamphetamine on 27 occasions, in quantities totalling at least 42.25 g, over the period from August to October 2021. This was the basis for the representative supply charge.

Judgment under appeal

[6]    The Judge resolved dispute between counsel as to a starting point of five or seven years’ imprisonment, based on the bands and roles set out in Zhang,7 by concluding Mr Waterman’s role in manufacture was “significant and not lesser”,8 and in relation to a quantity which would see Mr Waterman “clearly in band 3 which is a starting point of six years”.9 Taking into account parity with Mr Edwards’ sentence on a significantly greater quantity of methamphetamine brought the Judge to a starting point of sixty-six months’ imprisonment, which he uplifted by 12 months for the supply charge to an adjusted starting point of 78 months’ imprisonment.10

[7]    Turning  to  factors  personal  to   Mr   Waterman,   the   Judge   observed   Mr Waterman’s involvement “went well past a needs base” and he was “aware to some extent of the larger scale … of the operation”.11 His Honour allowed a 15 per cent discount for Mr Waterman’s guilty pleas, five per cent for addiction and 10 per cent for causative factors in Mr Waterman’s background reflected in  a  s  27  report.12  The Judge declined to make any allowance for Mr Waterman’s claimed remorse, saying it was nothing “over and above what comes with acceptance of responsibility and a discount for guilty plea”.13 Rounding up the resultant 23.4-month discounts to 24 months brought the Judge to his end sentence of 55 months, or four years and seven months’ imprisonment.14

[8]    For Mr Waterman, Sam Teppett submits the Judge’s “too high” adjusted starting point and insufficient discounts resulted in Mr Waterman’s manifestly

7      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 64 at [125].

8      R v Waterman, above n 1, at [15].

9 At [17].

10 At [18].

11 At [19].

12     At [20]–[22].

13 At [23].

14 At [24].

excessive sentence. He proposes Mr Waterman’s offers to supply were of “low-level street dealing”, and his limited presence and function in relation to the larger quantity’s manufacture — directed by Mr Edwards, without influence in the group and motivated by addiction — resounded also in a role better characterised as ‘lesser’.15 A starting point of less than six years was available, and required greater distance for parity from the seven years and six months’ starting point taken for Mr Edwards’ leading role in relation to supplying or offering to supply some 530 g of methamphetamine.16

[9]    Mr Teppett argues the Judge had comprehensive evidence in Mr Waterman’s pre-sentence and s 27 reports, as well as in his criminal history and evidence of his completion of alcohol and drug programmes, of Mr Waterman’s “long-standing” addiction sourced in his deprived background. There was no evidence he profited from his involvement in the methamphetamine’s manufacture. Within the 30 per cent discount range, he should have been afforded 25 per cent under this head. And his guilty plea was entered “promptly” on resolution of the charges to the two remaining. A 20 per cent discount was available. A resultant end sentence of three years’ imprisonment would meet sentencing’s accountability and deterrence purposes.

Approach on appeal

[10]   I must allow the appeal only if satisfied both there is error in the sentence, and a different sentence should be imposed.17 In any other case, I must dismiss the appeal.18 To be successful, an appellant must point to an error — either intrinsic to the Judge’s reasoning, or as a result of further information submitted on appeal — that is material to exercise of the lower court’s sentencing discretion.19

[11]   The measure of error is the sentence be “manifestly excessive”, a principle “well-engrained” in the Court’s approach to sentencing appeals.20 I will not intervene

15     Comparably with R v Elliott [2023] NZHC 528 and R v Minns [2021] NZHC 638, with starting points of four years and six months’ imprisonment.

16     R v Edwards, above n 5, at [10].

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

18     Section 250(3).

19 Khon v R [2024] NZCA 354 at [13], referring to R v Shipton [2007] 2 NZLR 218 (CA) at [138]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; and Tamihana v R [2015] NZCA 169 at [14].

20 Tutakangahau v R, above n 19, at [33] and [35].

where the sentence is within a range properly justified by accepted sentencing principle; ‘tinkering’ with such a sentence is inappropriate.21 Whether the sentence is “manifestly excessive” is to be assessed in terms of the sentence given; the process by which it is reached will rarely be decisive.22

Discussion

[12]   As the Supreme Court confirmed in Berkland,23 Zhang (as adjusted by Berkland’s updated “significant” role profile)24 remains the guideline judgment for methamphetamine sentencing.25 The Court of Appeal has emphasised reliance on sentencing judgments deriving from guideline judgments risks “upward sentencing creep and a lack of consistency”.26 The Supreme Court in Berkland also reinforced, while “[g]uideline judgments do not replace sentencing discretion with a ‘mechanistic’ box-ticking exercise”,27 “[w]here there is a guideline judgment it should be applied by the sentencing judge”.28

[13]   Instead, guideline judgments “look over the sentencing judge’s shoulder to ensure there is a ‘proper judicial evaluation of individual cases’”,29 as do I in determining an appeal against sentence. If the Judge’s decision under appeal here falls within Zhang’s (adjusted) guidance, at face value, it will be within a range excluding my intervention.

—starting point

[14]   Mr Waterman’s offers to supply at least 42.25 g of methamphetamine may justifiably be described as his Zhang band two dealing in quantities less than 250 g, attracting a two- to nine-year sentence range.30 But he pleaded guilty in terms also of his involvement in manufacturing approximately 280 g of methamphetamine. The

21 At [36].

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

23     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [41].

24 At [71].

25     Zhang v R, above n 7.

26     L v R [2021] NZCA 297 at [18], referring to R v AM (CA27/2009) [2010] NZCA 114, [2010] 2

NZLR 750.

27     Berkland v R, above n 23, at [24], referring to Zhang v R, above n 7, at [48].

28 At [24].

29 At [24].

30     Zhang v R, above n 7, at [125].

resultant 322.25 g put him firmly in Zhang’s band three dealing in quantities less than 500 g. The combination attracts a starting point of six to 12 years’ imprisonment.

[15]   Mr Waterman’s location within that range is to be determined predominantly by reference to his role. In Zhang/Berkland terms, he plainly had “operational function” in the manufacture and transportation of the 280 g, and “some awareness and understanding of the scale of the operation” by reference to his involvement in both to its technicalities and distribution network. That makes his role “significant”. Such is more meaningful than if he was motivated solely or primarily by his own addiction (as may reflect a lesser role).

[16]   If, as Mr Teppett submits, other factors — such as no financial gain or if he was paid in drugs or lacking influence on those above Mr Waterman in the chain, indicating lesser involvement — also were present, I should require their actual evidence rather than mere assertion. As the facts to which Mr Waterman pleaded guilty justified inference of his significant role, he bore the evidential burden to displace it.31 In any event, Mr Waterman’s active presence in the chain also appeared to be influential for Mr Edwards, in discussion with another defendant to find a way to collect the methamphetamine from Mr Waterman.

[17]   Mr Edwards’ seven years and six months’ starting point for his “leading” role in the manufacture and supply of a quantity of methamphetamine 65 per cent greater than in Mr Waterman’s “significant” role is an obvious reference point for differentiation in terms of parity, but that starting point merely was a component in Mr Edwards’ 13-year starting point as a matter of totality. It is not of itself a firm point for  distinguishing  the  Judge’s  six  years  and   six   months’  starting  point   for  Mr Waterman’s offending, being at the very bottom of Zhang’s band three.

[18]   Given Mr Waterman’s significant role in dealing with qualifying amounts of methamphetamine, the Judge’s starting point within band three is unavoidable. Affording the ‘fluidity’ at the boundary sought by Mr Teppett is unnecessary, because

31 At [127].

parity is not offended by only a 12-month gap to Mr Edwards’ relevant starting point component, as the disparity is not:32

… so gross and unjustified as to lead a reasonably minded observer to believe something has gone wrong with the administration of justice. A lenient sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.

[19]   The Judge did not err  in  taking  a  78-month  adjusted  starting  point  for  Mr Waterman’s sentence.

—personal mitigating factors

[20]   It is well-established a guilty plea usually attracts a maximum 25 per cent discount.33 The discount is to “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”, to “identify the extent of the truly mitigatory effect of the plea”.34 That evaluation is for the sentencing judge to make.35

[21]   While “[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”,36 that is not the same thing as pleading only when all negotiations with the prosecution are concluded, even if in achieving dismissal of some charges. The point is an earlier guilty plea on others remained available, so the delay is less ‘truly mitigatory’.

[22]   Here the Judge’s assessment was, “given what [he had] seen, the strength of the case, how far we are on, the complexities that have been raised”,37 15 per cent inferentially reflected that ‘true’ mitigation. I have no basis on which to gainsay his assessment. The Judge did not err in this respect.

32 Moses v R [2024] NZCA 121 at [40], referring to R v Rameka [1973] 2 NZLR 592 (CA) at 593– 594; R v Lawson [1982] 2 NZLR 219 (CA) at 222–223; and Macfarlane v R [2012] NZCA 317 at [24].

33     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

34 At [74].

35 At [77].

36 At [75].

37     R v Waterman, above n 1, at [20].

[23]   Mr Waterman’s personal letter to the Judge, apologising for his actions and accepting any sentence imposed on him, attributes “some of [his] poor decisions” to his drug addiction as a teenager, spent in “boys homes”, which he sought to address on remand by attendance at relevant alcohol and drug and other courses. For sentencing, he also sought Jarrod Gilbert be heard on his background.

[24]   Dr Gilbert’s report contends Mr Waterman’s background — his educationally and parentally deprived childhood and abusive experience in state care, and methamphetamine addiction and other health challenges, transitioning to repeated sentences of imprisonment from about the age of 17 years, and only short periods of non-custodial family, community and employment engagement — “has placed him at a considerable disadvantage”. Pointedly perhaps, Dr Gilbert demurs from drawing any direct linkage to Mr Waterman’s offending.

[25]   The question for sentencing is  if  that  ‘disadvantage’  had  materiality  for Mr Waterman’s offending, as impairing the rational choice made to offend and therefore diminishing his moral culpability,38 impacting considerations of deterrence and proportionality:39

[B]ackground factors such as addiction, deprivation and historic dispossession can mitigate sentence where those factors have contributed causatively; that is, if they help to explain in some rational way why the offender has come to offend. This standard is not unduly rigorous. That said, there will be cases in which the causative nexus is more direct. In other words, if it can be established that a background factor was the operative or proximate cause of the offending then the potency of that connection will be greater. But there may be other considerations that limit the effect of background. In particular, the more serious and carefully orchestrated the offending, the more the courts are likely to emphasise the choice made by the offender to offend. The causative contribution of background factors will be reduced and other sentencing purposes will be more prominent, particularly protecting the community from the harm associated with drug dealing.

[26]   Here the Judge attributed a five per cent discount for Mr Waterman’s addiction, expressly on the basis it could not be said his offending wholly was attributable to his addiction,40 but a further 10 per cent to recognise his other background’s impact on his

38     Hessell v R, above n 33, at [138].

39     Berkland v R, above n 23, at [16(c)].

40     R v Waterman, above n 1, at [21].

reduced agency.41 No further discount for Mr Waterman’s remorse was forthcoming, the Judge observing it not to be anything “over and above what comes with acceptance of responsibility and a discount for guilty plea”.42

[27]   The Judge’s reasons reflect his Honour’s close engagement with relevant principle, and in particular the degree to which Mr Waterman’s background bore causal connection to his offending. Except to the extent his addiction and other background made him more likely to indulge in it, his ‘significant’ role in the operation was in exercise of his own agency. It cannot be said the Judge was wrong in that assessment. The Judge did not err in this respect either.

[28]   The Judge’s minor rounding up of the overall discount to 24 months was in Mr Waterman’s favour. I am not satisfied there is any error in his sentence, let alone one that makes it ‘manifestly excessive’.

Result

[29]The appeal was dismissed.

—Jagose J

41 At [22].

42 At [23].