Gestro v Police

[2019] NZHC 2053

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000112

[2019] NZHC 2053

BETWEEN

JOHN PETER GESTRO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	20 August 2019
Counsel:	NJ Manning for Appellant JE Bragg for Respondent
Judgment:	21 August 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 21 August 2019 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

NJ Manning, Auckland. Crown Solicitor, Manukau.

GESTRO v POLICE [2019] NZHC 2053 [21 August 2019]

[1]    On 8 November 2018, Judge S Patel sentenced Mr John Gestro to a 32-month term of imprisonment.1 Mr Gestro appeals. He contends the sentence is manifestly excessive, largely because the Judge adopted too high a starting point on the lead offence. The appeal must be allowed if, and only if, the Judge erred and a different sentence should have been imposed.2

[2]    Mr Gestro pleaded guilty to two charges of possessing methamphetamine for supply; one of threatening to kill (his former partner); and one of failing to stop for a law enforcement officer. The offending spanned seven months:

(a)On 1 March 2017, Mr Gestro was stopped by the Police. They found a hidden compartment in the car’s centre console containing a total of

1.12 grams of methamphetamine (packaged in three small ziplock plastic bags); $1,300 in cash and electronic scales.

(b)At about 3 am on 11 October 2017, Mr Gestro sent a text message to his former partner saying, “I am going 2 kill u”. Mr Gestro then entered her home and demanded a set of car keys. He threatened to kill her again. Her mother intervened.

(c)At about 1.35 am on 20 October 2017, Mr Gestro was driving. He went through a red light and failed to stop  for Police.  They gave chase.  Mr Gestro made an abrupt turn, parked, and tried to run away. Police caught him. They found approximately 14 grams of methamphetamine in a black satchel; $750 cash; electronic scales; and small ziplock bags.

[3]Mr Gestro was on bail for (a) when he committed (b) and (c).

[4]    Mr Gestro pleaded guilty on 13 April 2018, following a sentence indication from Judge Patel. The Judge adopted a starting point of three years and nine months’ imprisonment for the methamphetamine offending. The Judge added three months for the threatening to kill offence, and another month for the fact of offending while on

1      Police v Gestro [2018] NZDC 23217.

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

bail. The Judge deducted 25 percent for the guilty pleas, and a further 15 percent for rehabilitative progress and personal circumstances. The Judge said this produced a figure of 32 months’ imprisonment—which he imposed. In fact, this methodology produced a sentence a little over 31 months’ imprisonment. I return to this shortly.

[5]    Mr Gestro contends the starting point for the methamphetamine offending is too high.  The Judge relied on R v I’u .3  Mr I’u possessed 10.8 grams of methamphetamine for supply; and offered to supply 1.2 grams of that drug. Allan J adopted a starting point of three years and nine months. Mr Gestro argues this 2008 decision is now out of date. Mr Gestro also submits a recent report from the Department of Corrections reveals “important information” Judge Patel could not have known: that Mr Gestro has a longstanding problem with drugs and alcohol, in turn implying the methamphetamine offending might have been to feed a related habit.4

[6]    In R v Haeata, Hinton J adopted a three-year starting point for seven methamphetamine offences totalling 15  grams.5  Mr Haeata was a street  dealer.   In R v van der Wiel,6 Clifford J adopted a three and a half year starting point for two representative offences of possessing methamphetamine for supply and supplying that drug. Forty grams was involved, albeit 15 grams was for personal use.

[7]    These cases provide some support for Mr Gestro’s argument.7 However, they also provide an incomplete picture. In Gush v R,8 the Court of Appeal held possession of 11.3 grams of methamphetamine for supply (of 50 percent purity) warranted a starting point of three years and nine months’ imprisonment. In Carroll v R,9 the defendant had 7.87 grams of methamphetamine (packaged in point bags); four mobile phones with messages implying drug dealing; 143 grams of cannabis; and other paraphernalia. The Court of Appeal held a global starting point of four years’ imprisonment was “in no way … excessive”; indeed, “exactly right”.10 In

3      R v I’u HC Auckland CRI-2007-004-009815, 4 March 2008.

4      Edwards J ordered this report on 17 June 2019.

5      R v Haeata [2017] NZHC 959.

6      R v van der Wiel [2017] NZHC 1411.

7      So too R v Wiki [2013] NZHC 3439.

8      Gush v R [2016] NZCA 438.

9      Carroll v R [2012] NZCA 328.

10 At [14].

Daniels v R,11 the defendant dealt 13 grams of methamphetamine (across seven occasions) and repeatedly offered to supply that drug. The Court of Appeal upheld a four-year starting point, noting Mr Daniels was an “active street dealer”.12

[8]    This broader mix implies the three-year, nine-month starting point is within range. Mr Gestro was twice caught in possession of methamphetamine for supply. On each occasion, he had cash and electronic scales—a dealer’s kit.

[9]    The report from Corrections does not alter this conclusion. The report says Mr Gestro “has had alcohol and drug issues in the past”, and Mr Gestro has been using both since the age of 13. The report also says “drug and alcohol dependency” appears to be a factor preceding this offending. However, the report does not say Mr Gestro was addicted to methamphetamine. Nor does it say Mr Gestro sold methamphetamine to support any such addiction. In other words, the report treats Mr Gestro’s use of drugs as a background factor only.13 In any event, it remains the position Mr Gestro twice dealt commercially with a pernicious drug. Moreover, Judge Patel was aware Mr Gestro had completed drug and alcohol counselling through CADS and Odyssey House—the Judge mitigated the sentence for this reason.

[10]   The Judge’s discounts were generous. Mr Gestro did not plead guilty early and yet received the full, 25 percent discount. And, this discount was not made last, as it ought to have been. This benefited Mr Gestro. The other discounts were available but not mandatory. Personal circumstances generally assume less significance in cases involving commercial drug dealing. So, even if the starting point were too high, the sentence is not manifestly excessive.

[11]   What then of the Judge’s arithmetical error? As observed, the Judge’s approach should have resulted in a sentence of 31 months’ imprisonment, not 32. But, 32 months is not manifestly excessive. I conclude I may allow the appeal as the Judge made an error and a different sentence should be imposed, namely, the sentence

11     Daniels v R [2018] NZCA 62.

12 At [15].

13     The same is true of Mr Gestro’s trauma at losing his father in 2010, a factor raised obliquely at the hearing.

Judge Patel meant to impose.14 This would normally constitute what appeal courts call “tinkering”. In these unusual circumstances it is not.

Result

[12]   The appeal is allowed, but only to correct the Judge’s arithmetical error. The sentence of 32 months’ imprisonment is quashed and replaced  with  a sentence  of 31 months’ imprisonment.

……………………………..

Downs J

14     Criminal Procedure Act, s 250(2).