Evans v Police
[2020] NZHC 3161
•2 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000344
[2020] NZHC 3161
BETWEEN IAN EVANS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 December 2020 Counsel:
MN Pecotic for Appellant A Al-Janabi for Respondent
Judgment:
2 December 2020
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 2 December 2020 at 10 am.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Manukau. MN Pecotic, Auckland.
EVANS v POLICE [2020] NZHC 3161 [2 December 2020]
The appeal
[1] Ian Evans pleaded guilty to two charges of possessing methamphetamine for supply (253.9 grams); possessing a stun gun; and possessing ammunition. Judge T V Clark imposed a term of four years and two months’ imprisonment, with a minimum period of half. Mr Evans appeals. He contends the Judge erred and a lesser sentence should be imposed. The Crown resists, citing among other things, Mr Evans’ history of like offending.
Background
[2] On 16 August 2017, Mr Evans and his teenage son went to an address in Papakura. Mr Evans knew the occupant, who opened the garage. Mr Evans got out of his car with a backpack. He left shortly thereafter. His son remained behind.
[3] Police followed Mr Evans and activated their lights. Mr Evans threw a stun gun out the window and stopped further down the road (at a second Police car). Inside his car, Police found a methamphetamine pipe and 122.1 grams of methamphetamine in a container hidden under the dashboard. Mr Evans’ DNA was later found on the container.
[4] In the backpack (at the Papakura address), Police found 131.8 grams of methamphetamine in a container; 28 rounds of .22 calibre ammunition; unused, resealable plastic bags; electronic scales; and a broken methamphetamine pipe.
[5] Mr Evans exercised his right to silence. He was promptly charged. Mr Evans pleaded guilty 1 November 2018. For reasons that need not detain us, sentencing was delayed until 9 July 2020.
[6] The Judge adopted a starting point of six years’ imprisonment for the methamphetamine offences. She added nine months for the other offending, then another nine months for Mr Evans’ record. The Judge deducted 25 percent for personal mitigating features, including methamphetamine dependency. The Judge deducted another 20 percent for the guilty pleas. As observed, this produced a four-year, two-month prison sentence. The Judge ordered Mr Evans serve at least half.
[7] Mr Evans filed an affidavit before sentencing in which he said, essentially, this. He went to the address to sell his car, driving there in a borrowed one. The occupant asked him to deliver drugs in return for methamphetamine or money. The occupant could not as he was serving a sentence of home detention. Mr Evans agreed. Mr Evans did not know the stun gun was in the car; he “panicked” and threw it out the window when he saw Police. The ammunition was Mr Evans’. The methamphetamine and drug-dealing paraphernalia were the occupant’s, albeit Mr Evans had agreed to act as a courier in relation to the drug.
[8] The account strikes me as convenient. However, the Crown acknowledged below it could not disprove it, a disputed facts hearing was abandoned, and the parties—and Judge—proceeded on the assumption Mr Evans’ affidavit identified his role. I, therefore, do likewise.
Starting point
[9] On behalf of Mr Evans, Ms Pecotic contends the Judge should have adopted a starting point below band three of Zhang v R.1 As will be recalled, this band provides starting points of between six and 12 years’ imprisonment for dealings in methamphetamine between 250 and 500 grams. Band two provides starting points of between two and nine years’ imprisonment for dealings in less than 250 grams.
[10] Citing the post-Zhang cases of Phillips v R2 and Singh v R,3 Ms Pecotic emphasises the flexibility in sentencing in this area, particularly when the offender has played a lesser role like Mr Evans. Ms Pecotic also emphasises Mr Evans’ longstanding methamphetamine dependency; Mr Evans began using methamphetamine when his mother died in 2003.
[11] The Crown contends Phillips and Singh are distinguishable and the starting point justifiable given Su v R4 and R v Carnachan.5
1 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
2 Phillips v R CA771/2018 (decided with Zhang v R¸ above n 1, at [204]–[228].
3 Singh v R [2020] NZCA 211.
4 Su v R [2020] NZCA 128.
5 R v Carnachan [2019] NZHC 3025.
[12] The arguments are best assessed through the cited cases. Singh is rather different. Mr Singh agreed to receive two methamphetamine packages sent from abroad. The packages contained more than four kilograms of methamphetamine, but it was common ground Mr Singh did not know how much was coming. Mr Singh was a mere “catcher”. The Court of Appeal substituted a starting point of eight years’ imprisonment.
[13] Phillips is somewhat closer to our facts. Ms Phillips and her partner, the lead offender, twice supplied methamphetamine totalling at least six kilograms. The Judge found Ms Phillips committed the offences “out of a sense of loyalty”.6 Ms Phillips argued the starting point was too high. The Court of Appeal rejected the argument, noting it was “well below the entry point” of the corresponding band.7
[14] Carnachan is a first-instance decision only, hence of little relevance. This leaves Su. Mr Su possessed 233 grams of methamphetamine, packaged in plastic, resealable bags. Electronic scales and an apparent tick list were also found at his home. The sentencing Judge concluded the offending might have been driven by Mr Su’s drug dependency. The Judge also concluded Mr Su’s role was “relatively minor”. She adopted a starting point of six and a half years’ imprisonment, so, within but towards the bottom of band three.
[15] The Court of Appeal considered Mr Su a courier and storeman, albeit with some role in preparing methamphetamine for sale by others. It thought it likely Mr Su “acted under direction and … did not share in the monetary gains, beyond receiving enough methamphetamine to feed his habit”.8 The Court substituted a starting point of five and a half years’ imprisonment, observing Mr Su’s “lesser nature of his role in the operation reduces the seriousness of his offending substantially”.9
[16] Su was not cited to Judge Clark. Had it been, it is likely the Judge would have accepted the submission Mr Evans’ starting point should have been lower than band
6 Zhang v R¸ above n 1, at [207].
7 At [218].
8 Su v R, above n 4, at [23].
9 At [24].
three even though he was acting for some reward (in the form of methamphetamine, or money to buy that drug).
[17] Ms Pecotic argues Mr Evans’ culpability is less than Mr Su’s because Mr Su was also a storeman in an ongoing enterprise. By comparison, Mr Evans’ role was transitory. As against this, Mr Evans possessed more methamphetamine than Mr Su, and Mr Evans agreed to perform a role that could not otherwise be fulfilled by the person higher in the chain. Ms Pecotic’s proposed starting point of four years’ imprisonment is thus much too low. Five and a half years—the same starting point in Su—is the obvious starting point given the similarities between that case and Mr Evans’.
Increases
[18] Ms Pecotic contends the Judge was wrong to add a total of 18 months for the other offending and Mr Evans’ record. She observes this represents 20 percent of the original starting point.
[19] Mr Evans is 42. He has an extensive criminal record. On 30 October 2014, Mr Evans unlawfully possessed two firearms. In May that year, he possessed methamphetamine. In February the same year, he possessed equipment with intent. These offences resulted in a two and a half-year term of imprisonment in May 2015. In 2011, Mr Evans possessed methamphetamine, the same drug for supply and equipment with intent. This offending attracted a three-year term of imprisonment in September 2011. In December 2005, Mr Evans committed five offences of possessing equipment with intent. He was sentenced by the High Court in June 2007 to a two-year prison sentence. Mr Evans has other convictions for possessing methamphetamine, amphetamine, or both.
[20] This history readily justifies the nine-month increase for Mr Evan’s record, particularly when he was still on release conditions for the firearms and drug offences in 2014. As the Judge observed, several jail terms had not deterred “further willingness to become involved in this type of offending”.10
10 R v Evans [2020] NZDC 162965 at [13].
[21] However, the nine-month increase for the other offending was somewhat too high; not more than six months was required given the weapon was a stun gun (not a firearm), and that the ammunition was not found with a firearm (risk of harm was not as great as would otherwise have been the case). So, the adjusted starting point should have been 81 months, or six years and nine months’ imprisonment.
Discount for personal circumstances
[22] Ms Pecotic contends the Judge should have deducted 30 percent rather than 25 for personal circumstances. She emphasises the impact of the death of Mr Evans’ mother (in 2003); his refuge in methamphetamine thereafter; and Mr Evans’ willingness to rehabilitate (as attested by various certificates, and his surrender to prison after compassionate bail).
[23] The Judge was mindful of these features and a 25 percent deduction is a significant one. Discounts in this context also attract a measure of discretion.11 It is far from obvious the discount should have been greater. Moreover, the Judge deducted 20 percent for Mr Evans’ guilty pleas, and these were not early, or in the face of a weak prosecution case. Benevolence on this front therefore addresses any arguable deficiency on the other.
Minimum period
[24] Ms Pecotic notes the Crown did not seek a minimum period in the District Court. She argues a minimum period is unnecessary and risks compromising progress Mr Evans has made on remand. She also emphasises the need, affirmed by the Court of Appeal in Zhang, for justification of the imposition of a minimum period.
[25] The Crown suggests the issue is moot, for, Mr Evans has been in custody since arrest in August 2017.
[26] A minimum period may be imposed whenever a Court sentences an offender to a determinant sentence of more than two years’ imprisonment; no application is
11 Zhang v R¸ above n 1, at [136]
required by the prosecution.12 Mr Evans was on release conditions for like offending when he committed these offences. As observed, Mr Evans has a significant history of committing drugs and firearms offences. The pre-sentence report assesses Mr Evans as “high risk” of re-offending and posing “a medium to high risk of harm to others”. Deterrence and community protection are relevant considerations when determining if a minimum period is required.13 So, a minimum period was open to the Judge.
[27] Moreover, a minimum period of imprisonment is not necessarily inconsistent with an offender’s rehabilitative needs. Mr Evans has attended prison programmes to address his offending and drug dependency, including the Drug Treatment Unit and Special Treatment Unit. Mr Evans has also had sessions with a psychologist.
[28] However, because Mr Evans has already served the minimum period (and more), and the sentence is to be varied, I allow this aspect of the appeal too.
Result
[29] The appeal is allowed, and Mr Evans’ sentence quashed. A three-year, eight-month prison term is substituted. The minimum period of imprisonment is quashed.
……………………………..
Downs J
12 Sentencing Act 2002, s 86(1).
13 Section 86(2).