Giles v R
[2020] NZHC 2372
•11 September 2020
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2020-442-000008
CRI-2020-442-000009 [2020] NZHC 2372
DONALD STEVEN GILES v
THE QUEEN
Hearing: 9 September 2020 Appearances:
A J D Bamford for the Appellant J M Webber for the Respondent
Judgment:
11 September 2020
JUDGMENT OF COOKE J
[1] Mr Giles pleaded guilty to 15 charges of offering to supply methamphetamine1 and seven charges of breaching a protection order.2 On 9 June 2020 he was sentenced in the Nelson District Court to two years, ten months’ imprisonment.3
[2] Mr Giles appeals his sentence on the grounds the starting point was too high, the Judge ought to have discounted for totality when imposing the sentence for two sets of offending on a cumulative basis, he should have been afforded at greater credit
1 Misuse of Drugs Act 1975, s 6(1)(c) and (2), maximum penalty life imprisonment.
2 Domestic Violence Act 1995, ss 19(1)(d), 49(1)(b) and 49(3), maximum penalty three years’ imprisonment.
3 R v Giles [2020] NZDC 10520.
GILES v R [2020] NZHC 2372 [11 September 2020]
for personal mitigating factors, and that the guilty plea discount should have been greater and calculated using the approach set out in Moses v R.4
Factual background
[3] There are two sets of offending — those relating to the supply of methamphetamine, and those relating to breaches of a protection order in relation to Mr Giles partner.
Methamphetamine charges
[4] During a police investigation into methamphetamine dealing in the Nelson region a production order was executed in relation to Mr Giles’ phone number. Phone data and messages revealed Mr Giles was in regular contact with a group of four associates in relation to methamphetamine dealing. The charges arise from 15 different occasions where Mr Giles sent or received texts related to methamphetamine dealing between 6 December 2016 and 19 April 2017:
(a)On 10 January 2017 Mr Giles exchanged texts with an associate consistent with the other party seeking half a gram of methamphetamine from him for cash.
(b)On 14 February 2017 Mr Giles exchanged texts with an associate consistent with the other party seeking half a gram of methamphetamine from him for $500. The following day there was a further text exchange between the pair consistent with Mr Giles offering to supply one gram of methamphetamine.
(c)On 16 February 2017 Mr Giles exchanged texts with an associate offering to supply them with an undetermined amount of methamphetamine. The same associate contacted him again on 1 March requesting a further indeterminate quantity of methamphetamine and again on 3 March requesting a quarter gram of methamphetamine.
4 Moses v R [2020] NZCA 296.
(d)On 3 March 2017 Mr Giles exchanged texts with an associate, discussing a price for a quarter gram of methamphetamine.
(e)On 13 March 2017 Mr Giles exchanged texts from an associate arranging to meet up to supply multiple amounts of methamphetamine.
(f)On 19 March 2017 an associate sent texts to Mr Giles seeking the supply of methamphetamine. Later Mr Giles sent a text in reply confirming he had received cash from the sale.
(g)On 21 March 2017 Mr Giles exchanged texts with an associate consistent with the other party seeking methamphetamine and Mr Giles offering to supply after an outstanding debt was paid.
(h)On 4 April 2017 further texts were exchanged consistent with Mr Giles offering to supply two undisclosed quantities of methamphetamine. The following day Mr Giles offered to supply three quarter gram amounts of methamphetamine and a separate indeterminate amount to the value of $100.
(i)On 6 April 2017 Mr Giles sent a message to an associate offering to supply methamphetamine but that he would not bother if the request was only for a single quarter gram.
(j)On 19 April 2017 Mr Giles was contacted by an associate arranging a place to meet with Mr Giles replying to confirm the associate had cash for at least half a gram of methamphetamine.
[5] In May 2017 Police executed a search warrant at Mr Giles’ Nelson address. His phone was located in his bedroom as well as a set of electronic scales. In the adjacent spare room Police located a sports travel bag containing a large quantity of unused small sealable plastic bags.
Breach of protection order charges
[6] Mr Giles and the victim were in a relationship for seven months but separated at the end of 2016. They have a one year old son together. On 19 January 2018 Mr Giles was issued with a temporary protection order naming him the respondent and the victim as the protected person. A final protection order was issued on 13 March 2018.
[7] On 26 June 2018 at 9.49 am the victim received a Facebook message from Mr Giles saying “Hey, all you had to do was say sorry. An we would have been ok”. Over the next 14 days Mr Giles attempt to contact the victim on approximately 112 different occasions through Facebook messages, Facebook phone calls, voice recordings, photographs of himself and sending several pornographic videos. The content of the messages generally involved Mr Giles saying that he missed the victim.
[8] At about 9.15 am on Monday 30 July 2018 the victim was at her home address in Stoke. She had her Nissan car with her. Mr Giles arrived at the same address with another male, intending to uplift the car. The victim saw Mr Giles walking down the driveway. He yelled at her some insulting profanities, laughing. He then left the property with his associate. The victim notified Police.
[9] Later that day the victim was at her home address and saw Mr Giles walking towards her house accompanied by another male. He saw that she was on the phone and yelled at her “Yep call your fucking pig mates, you pigs need to stick together”. The second male got out of the car. The victim told Mr Giles that she was on the phone to Police. Mr Giles left the address but the second male stayed. The victim spoke with the second male in relation to ownership of a car but Police arrived shortly after.
Procedural history
[10] The proceedings have had a complex procedural history, partly explained by the anticipated release of the Court of Appeal’s revised guideline judgment in Zhang v R.5
5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[11] The Crown assumed responsibility for the methamphetamine charges in August 2017. Mr Giles initially also faced several minor charges for possession of methamphetamine utensils and possession of a small amount of cannabis but he entered early guilty pleas and those charges were discharged.
[12] On 15 November 2018 Mr Giles received a sentence indication on the methamphetamine offending. The sentence indication followed the sentencing bands from the tariff case operable at the time.6 Counsel filed a memorandum accepting that indication but at the proceeding hearing the appellant refused to enter guilty pleas unless the Crown amended the charges to a single representative charge. The Crown declined to do so. Mr Bamford for the appellant explains Mr Giles later pleaded guilty to the charges but not on the basis that the sentence indication was accepted. On 14 February 2019 on the appellant’s application Judge Ruth agreed to hold over sentencing on the methamphetamine charges until the Court of Appeal released Zhang v R whilst simultaneously allowing time for the family violence matters to resolve.
[13] On 13 August 2019 Mr Giles received a sentence indication on the family violence offending. A starting point of 10 months’ imprisonment with a 15 per cent guilty plea discount was accepted. The appellant then appeared for sentence in June 2020.
Decision under appeal
[14] The Judge first outlined the procedural history and noted there had been sentence indications for both the methamphetamine charges and protection order charges but the sentence indication had been prepared prior to the new Court of Appeal bands for methamphetamine offending in Zhang v R.7
[15] The Judge recognised the need to adopt a revised starting point given that Zhang v R had been delivered since the sentencing indication. He took a starting point of two years, nine months’ imprisonment for the methamphetamine charges.
6 R v Fatu [2006] 2 NZLR 72 (CA).
7 Zhang v R, above n 5.
[16] The Judge referred to the comprehensive psychologist report. He recorded that while Mr Giles had been incarcerated on remand he had participated in methamphetamine programmes, a first aid course, a Brain Wave Trust programme and had provided certificates of completion for various other programmes. He concluded some recognition of his efforts at rehabilitation should be recognised.8 The Judge also noted that he had to take account of the fact that the pleas came well after the sentencing indications were given and would result in a decreased discount for guilty pleas.9
[17] He concluded there was no correlation between addiction and the offending but he gave a four month discount (12 per cent) available to recognise Mr Giles’ efforts at rehabilitation.10 The Judge then discounted a further 10 per cent for guilty plea.11 That amounted to an end sentence for the methamphetamine dealing of 26 months.
[18] Turning to the family violence matters the Judge determined it was not connected to the methamphetamine offending and it was appropriate impose a further eight months in respect of the family violence offending cumulatively on the 26 month sentence for the methamphetamine offending.12 That eight months was explained in the earlier sentence indication to consist of a starting point of 10 months and a 15 per cent discount for guilty plea.13
Approach to appeal
[19] This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.
[20] A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion. An error of principle
8 R v Giles, above n 3, at [21].
9 At [25]-[26].
10 At [31].
11 At [32].
12 At [33].
13 R v Giles DC Blenheim CRI-2017-042-001183, 13 August 2019 at [13].
includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.14 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.15 The Court of Appeal has accepted, however that there may be cases where “what has gone wrong as such as to require correction albeit the sentence imposed is within range”.16
Analysis
[21] There is a degree of complexity about the issues arising on appeal. That is partly due to the fact that the sentence here is affected by the changes in the new guideline judgments in both Zhang and Moses. During this period of time Mr Giles received sentencing indications on the two separate sets of offending.
Guilty plea discount
[22] The District Court Judge applied the guilty plea discounts using the approach applied in R v Hessell.17 As a consequence the sentence is a little higher than it would have been under the Moses approach, although I accept Mr Webber’s submission that as a consequence of the rounding adopted by the District Court Judge the ultimate effect is minimal.
[23] Mr Webber submitted that a failure to follow the approach set out in Moses should not be treated as involving an error by the District Court Judge, at least in of itself. In Zhang v R the Court of Appeal reiterated the approach that should be taken in relation to appeals in association with the release of a new guideline judgments.
The Court said:18
[187] This judgment is to be issued on 21 October 2019. It applies to all sentencing that takes place after that date regardless of when the offending took place. The more difficult issue is whether it should also apply to those who have already been sentenced and if so in what circumstances.
14 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].
15 Ripia v R [2011] NZCA 101 at [15].
16 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
17 R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
18 Zhang v R, above n 5.
[188] The approach that has consistently been taken by this Court in previous guideline judgments is that the judgment only applies to sentences that have already been imposed, if and only if two conditions are satisfied: (a) that an appeal against the sentence has been filed before the date the judgment is delivered; and (b) the application of the judgment would result in a more favourable outcome to the appellant.19
[24] Here the Court of Appeal released Moses on 15 July 2020. The notice of appeal was filed on 20 July 2020.
[25] There may be a question whether the approach now outlined in Moses is truly a guideline judgment in relation to sentencing as opposed to an adjustment to sentencing methodology. As the Court of Appeal itself said in Moses “… the ultimate question, however, is not whether an applicable guideline judgment is followed but whether the sentence is a just one in all the circumstances”.20 It seems to me that in this context the focus is on the ultimate end sentence, rather than the particular process by which it was reached. A failure to apply the Moses methodology will not, by itself, be an error. The question will remain whether the sentence is manifestly excessive given the guilty plea discount involved.
[26] I accept, however, that if another error in the sentence is identified such that the Court is satisfied that a new sentence needs to be imposed on appeal, when assessing what that sentence should be the approach followed in Moses should be followed. Indeed that appears to have been the approach adopted by the Court of Appeal itself in decisions that it reached since Moses was decided.21
Appropriate starting point for the methamphetamine offending
[27] Mr Bamford submits the starting point of two years, nine months’ imprisonment was excessive and a starting point of around two and a half years was appropriate. Mr Webber submits the Judge clearly gave full consideration to the Zhang bands and although the starting point was slightly above what was advocated for and it must be considered within range.
19 R v Vadati CA 256/05, 19 December 2005 at [8].
20 Moses v R, above n 4, at [49].
21 Wikohika v R [2020] NZCA 352 at footnote 36 and Moheebi v R [2020] NZCA 343 at [35].
[28] In Zhang the Court of Appeal held that assessing culpability requires particular consideration of the role played by the offender in the supply operation, as well as the quantities involved.22 A two stage approach is required in selecting a starting point. The Court must first determine a band based on quantity as it “remains the first determinant of sentence”.23 After a selecting band and appropriate range has been ascertained, the Court must consider the role played by the offender in determining placement within the band.24 The Court of Appeal also provided a table of factors that judges could take into account when determining the role.25
[29] The quantities involved in the offending here were minimal — ranging from one quarter of a gram to one gram, and totalling four grams over a period of December 2016 to April 2017. Placement in band one was clearly appropriate.
[30] They key consideration is then the role Mr Giles played. Mr Bamford emphasised that Mr Giles was dealing at a “street dealer” level, operating on his own. There is no evidence that he had influence on those above him and can be regarded as a low-level dealer. He says the psychologist report demonstrates that a significant motivator in his operation was paying for the drugs to meet his own addiction. I nevertheless accept Mr Webber’s submission that Mr Giles was dealing for financial gain, rather than to fund his own addiction. In the Drug and Alcohol Report the report writer recorded that Mr Giles had said that he did not like methamphetamine and he did not take it often. Mr Giles later suggested to Ms Fon that he was a user, but Ms Fon did not conclude that Mr Giles was addicted to methamphetamine. She said:
While there is a link between his relapse to methamphetamine use and emotional distress, it is more likely that Mr Giles’ most recent relapse served multiple purposes of providing general emotional relief but also providing an income.
[31] When applying the factors in the table in relation to role set out in Zhang a number of the factors listed for “lesser” do not apply to Mr Giles. He did perform a more limited role in a minor drug dealing operation, but there is no suggestion that he did so under coercion or pressure from anybody higher up, that it involved naivety or
22 Zhang v R, above n 7, at [104].
23 At [103].
24 See [126].
25 At [126].
exploitation, that he was motivated primarily by his own addiction, that there was little expected financial gain, or that his sales paid for drugs to feed his own addiction. The final factor in the table — “if own operation, solely or primary for own or joint use on non-commercial basis” most clearly applies to Mr Giles, but here the selling was not to fund his own use, but to fund his lifestyle.
[32] For those reasons I accept it was open to the District Court to impose the starting point that he did.
Credit for personal mitigating factors
[33] The Judge gave a discount of 12 per cent to recognise Mr Giles’ efforts at rehabilitation but made no further discounts to acknowledge Mr Giles’ background. Mr Bamford submits that the Judge ought to have given further credit for personal factors referred to in Ms Fon’s report.
[34] The Sentencing Act 2002 provides that imposing a sentence with a partly or wholly rehabilitative purpose the Court must take into account personal, whanau, community and cultural background of the offender.26 As the Court of Appeal have recently noted, ingrained systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity require consideration at sentencing when shown to contribute causatively to the individual’s offending.27 In Zhang the Court also referred to Whata J’s judgment in Solicitor-General v Heta.28 In Heta Whata J held that while there is no clear unifying principle for the quantum of a discount, as personal circumstances tend to be informed by multiple overlapping factors including deprivation, trauma, youth, drug and alcohol abuse, and mental health issues.29 Where the report does not draw overt linkages between systemic deprivation and the offending, it may be reasonably inferred.30
26 Section 8(i).
27 Zhang v R, above n 7, at [159]. See also Solicitor-General v Heta [2018] NZHC, [2019] 2 NZLR 241 at [49].
28 Above n 27.
29 At [63], citing Paul v New Zealand Police [2015] NZHC 2583 at [38]; and Te Whata v Police
[2016] NZHC 1293.
30 At [65].
[35] Ms Fon’s report detailed Mr Giles’ personal and family background and how that may have contributed to his offending. It reported that Mr Giles was a 48 year old male of Tainui and Ngati Ranginui descent. It described his background in a way that is similar to that which might be outlined in an s 27 report. That included a background where Mr Giles witnessed extreme parental violence, and was subject to severe forms of abuse and neglect. Mr Giles has said that his own father had been in a boys’ home and was unpredictable, violent and a substance abuser. He reported his mother being assaulted, and that he was emotionally abused and assaulted as a child. At the age of 13 years he ran away from home, and ended up himself being placed in a boys’ home. He reported being subject to further abuse in that home. This dysfunctional existence included a period in Australia where he was imprisoned, joining the Comancheros while in prison. He was then deported.
[36]Ms Fon then addressed the question of causation in a disciplined way advising:
32. Mr Giles’ early development was affected by his exposure to a number of aversive childhood experiences, … that are now widely accepted to have a significant, negative impact on cognitive, behavioural and emotional development, and health and social outcomes. It is also quite likely that Mr Giles was affected by prenatal and genetic factors given the substance abuse history of his parents. Mr Giles’ home life was highly volatile, unpredictable and chaotic. He was exposed to his parents’ extensive substance use and their use of extreme violence, repeatedly and over an extended period of time. His basic needs went unmet and he suffered from emotional abuse and neglect.
33. These early experiences had a profound effect on shaping Mr Giles’ values and beliefs around self, world and other. They also had an enduring impact on his experience, expression and management of emotions, and the nature of his relationships with others. Mr Giles came to perceive his world as unpredictable and violent, and others as potential sources of harm. In response to living in highly volatile and unpredictable environment he experienced prolonged physiological hyperarousal and developed a hypervigilance to threat cues. He viewed others with a mistrust, and perceived hostile intent behind their actions. Mr Giles’ experiences were further compounded by the abusive experiences he endured outside of home. He found few sources of support and his plight was ignored by his teachers. He was further abused by those in positions charged to provide care, and by a person appearing to offer support but who had duplicitous intentions. The frequent violation of his tinana and wairua across his youth led to his belief in the need to protect himself from others, at all costs.
[37] This was a comprehensive analysis of these issues. The Judge noted that Ms Fon was a person with whom the Court had “considerable faith in terms of her
experience in this area”.31 Had this material been in a s 27 report, it seems to me that it would likely have justified a discount for systemic deprivation, including cultural deprivation. There is no requirement for these factors to have been addressed by a report under s 27.
[38] I agree that a discount for the effects of deprivation, including cultural deprivation should have been given. Mr Bamford contended that this should have taken the discount up to 25 per cent rather than just the 12 per cent allowed for rehabilitation potential. I accept that this was appropriate, and that there has been a material error in the sentencing approach by the Judge because of a failure to consider these factors, and the effect on the sentence in accordance with s 8 of the Act.
[39] The position is different with respect to the breach of protection order offending. Here the Judge indicated a starting point of 10 months’ imprisonment, and then deducted 15 per cent for the guilty plea, and engaged in no other discounting. But no discount for rehabilitation potential was appropriate for this offending. Any such discount for rehabilitation potential would need to specifically relate to this kind of offending. There was no evidence of such rehabilitation potential. As indicated, however, the psychologist’s report outlined persuasive reasons for discounts for deprivation, including cultural deprivation. It seems to me that there should have been a 15 per cent reduction for such deprivation in relation to this offending.
Greater discount for guilty plea
[40] Mr Bamford submits Mr Giles should have been given a 15 per cent credit for his guilty plea for both sets of offending and there was no proper basis for reducing the discount to 10 per cent for the drug offending.
[41] The Judge allowed different percentage discounts for the different sets of offending. For the protection order offences he allowed a 15 per cent discount, but for the methamphetamine offending only a 10 per cent discount. Mr Bamford argues there should have been a 15 per cent discount across all offending.
31 R v Giles, above n 3, at [17].
[42] In my view the Judge’s approach was appropriate. The domestic violence offences were laid in August 2018. A sentencing indication was sought in August 2019 with guilty pleas entered shortly thereafter. A 15 per cent discount for the guilty pleas for that offending appears appropriate. The chronology of events for the methamphetamine charges was more complex. The charges were laid in mid-2017, guilty pleas were signalled in November 2018 but then there was a disagreement about the charges to which guilty pleas would be entered in January 2019 as Mr Giles wanted the charges changed. A guilty plea was only entered later. In those circumstances it is quite appropriate to apply a lesser discount for the guilty plea in relation to the methamphetamine offending. I accordingly see no error in the District Court Judge’s approach.
Adjustment for totality?
[43] As indicated the Judge imposed a separate sentence on the breach of protection order offending, and concluded that that sentence should be cumulative on the methamphetamine offending. The Judge considered it was appropriate to impose the eight months’ cumulatively and rejected that the family violence offending was connected to the methamphetamine offending.32
[44] Mr Bamford accepts that the starting point for the family violence offending was appropriate, but contends that there should have been some consideration of totality, and a discount for totality.
[45] Mr Webber for the Crown points out that the offending did not overlap in time as the methamphetamine offending was committed between December 2016 and April 2017. The family violence offending was committed in June and July 2018.
[46] I accept Mr Bamford’s point that the Judge did not specifically turn his mind to a totality adjustment. The consideration was limited to concluding that the offending was unrelated, and that the association Mr Giles had with drugs was not relevant to the protection order offending. For those reasons a decision under s 83 to
32 R v Giles, above n 3, at [23] at [33].
impose the sentence cumulatively, rather than concurrently was a reasonable one. But the Judge should probably have then turned his mind to the question of totality.
[47] Section 85 provides that if a Court is considering cumulative sentences it must not result in “a total period of imprisonment wholly out of proportion to the gravity of the overall offending”. A totality reduction is not automatic.33 Importantly it is an assessment that should be made at the end of the sentencing methodology, as it goes to the overall appropriateness of the end sentence given the cumulative effect.
[48] I do not accept that a deduction for totality was necessary. The decision to impose consecutive rather than concurrent sentences was appropriate, and the total period of imprisonment was not wholly out of proportion.
Outcome
[49] The outcome of the alterations to the sentence, and the application of the guilty plea discount in accordance with Moses is as follows:
(a)Methamphetamine offending:
(i)Starting point two years nine months’ imprisonment.
(ii)Discount of 10 per cent for guilty plea, and 25 per cent for personal mitigating factors.
(iii)Sentence for methamphetamine offending — one year nine months’ imprisonment.
(b)Breach of protection order offending:
(i)Starting point 10 months’ imprisonment.
(ii)Discount of 15 per cent for guilty plea, and 15 per cent for personal mitigating factors.
33 Ashcroft v R [2014] NZCA 551 at [32].
(iii)Sentence for protection order offending — seven months’ imprisonment.
[50]This results in an end sentence of two years four months.
[51] Accordingly the appeal is allowed and the sentence of two years 10 months’ imprisonment is replaced with a sentence of two years four months’ imprisonment.
Cooke J
Solicitors:
Bamford Law, Nelson for the Appellant Crown Solicitor, Nelson for the Respondent
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