Gotty v R

[2020] NZHC 2035

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000065

[2020] NZHC 2035

BETWEEN

JAMES DEAN JOHN GOTTY

Appellant

AND

THE QUEEN

Respondent

Hearing:	7 August 2020
Appearances:	T Sutcliffe for Appellant K Whyte for Respondent
Judgment:	12 August 2020

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 12 August 2020 at 12.00 midday

Registrar/Deputy Registrar Date:…………………………

Solicitors:

Crown Solicitor at Hamilton T Sutcliffe, Hamilton

GOTTY v R [2020] NZHC 2035 [12 August 2020]

Introduction

[1]                 After pleading guilty to various drug-related charges and one firearm-related charge, the appellant, James Gotty, was sentenced by Judge Cocurullo in the District Court at Hamilton on 18 June 2020 to eight months’ home detention.1

[2]                 Mr Gotty appeals the sentence, submitting that it is manifestly excessive. Through his counsel, Mr Sutcliffe, he argued that the Judge:

(a)failed to give him a discount for six months spent on remand in custody;

(b)failed to give him a sufficient discount for five months spent on remand on electronically monitored (EM) bail; and

(c)gave him an insufficient credit for his guilty pleas.

[3]                 Mr Whyte, for the Crown, argued that the end sentence of home detention was significantly less than half the sentence of imprisonment calculated by the Judge, and that the sentence was not manifestly excessive.

Relevant facts

[4]                 In July 2019, the police obtained a production order in relation to Mr Gotty’s mobile phone, following reports received that he was involved in drug dealing.

[5]                 An analysis of the data revealed that Mr Gotty had operated the phone between 1 May 2019 and 7 July 2019, and that he was dealing in both methamphetamine and cannabis. Specifically, over that period, Mr Gotty:

(a)supplied 2.95 grams of methamphetamine on eight separate occasions;

(b)offered to supply methamphetamine on 37 separate occasions. The police were able to ascertain that 38.8 grams of methamphetamine was involved in 34 of those offers;

1      R v Gotty [2020] NZDC 11420.

(c)sold and/or offered to sell cannabis on seven separate occasions. The police were unable to identify the quantities sold or offered on each occasion;

[6]                 On 30 July 2019, the police executed a search warrant at Mr Gotty’s home address. They found the following items in his bedroom:

(a)a ziplock bag containing .029 grams of methamphetamine;

(b)a set of digital scales;

(c)multiple containers containing empty ziplock bags;

(d)multiple empty ziplock bags;

(e)a plastic container holding 18.3 grams of a white crystallised substance;

(f)$240 cash;

(g)a broken methamphetamine pipe;

(h)a plastic bag holding 27.6 grams of dried cannabis;

(i)two ziplock bags containing a total of 0.13 grams of dried cannabis;

(j)a metal tin containing 39.3 grams of dried cannabis plant material;

(k)a glass cannabis bong;

(l)a black cannabis pipe;

(m)a yellow and brown cannabis bong;

(n)a glass methamphetamine pipe, cut straw and butane burner; and

(o)eight rounds of ammunition for a rifle.

[7]                 As a result, Mr Gotty was charged with supplying methamphetamine, being in possession of methamphetamine for supply, offering to sell methamphetamine, selling cannabis, offering cannabis for sale and finally, with being in unlawful possession of ammunition. One of the charges related to the 18.3 grams of white crystallised substance found during the search.

[8]                 The charges were laid on 31 July 2019. Mr Gotty appeared before the Court on 6 August 2019 and he was remanded in custody. Not guilty pleas were entered on 20 August 2019. Again, Mr Gotty was remanded in custody. There was then a delay, because the Crown needed to analyse the white substance found in the course of the search and further examine Mr Gotty’s telephone records. On 6 November 2019, the case was before the Court for review. The police had still not finalised their investigations, but the Court was told that matters were likely to be resolved. On 29 January 2020, Mr Gotty again came before the Court. The police had completed their enquiries. The white substance found in the course of the search was not methamphetamine. They also accepted that Mr Gotty’s phone records revealed that he was a drug addict and that his offending had been driven by his addiction. Given these changes in circumstance, Mr Gotty applied for and was granted electronically monitored (EM) bail. On the same day, Mr Gotty sought a sentence indication. That sentence indication was supposed to be given in April 2020, but the hearing had to be adjourned because of the COVID-19 crisis. The indication was eventually given on 5 May 2020. Mr Gotty accepted the indication on 12 May 2020. He was then convicted and he appeared for sentence on 18 June 2020.

The Judge’s sentencing notes

[9]                 The Judge recorded that it was common ground that Mr Gotty was a drug addict and that there was a causal link between his addiction and his offending.

[10]              The Judge considered that the appropriate start point was one of three years’ imprisonment for all of the drug offending. He uplifted that start point by two months, to account for the unlawful possession of the ammunition, taking the starting point to 38 months’ imprisonment. Mr Gotty had indicated a willingness to rehabilitate, and the Judge discounted the sentence by two months to allow for this factor. He then

applied a further two month discount to acknowledge the time that Mr Gotty had spent on EM bail. The Judge then referred to Mr Gotty’s drug addiction and the nexus between his addiction and his offending. He gave him a 15 per cent discount for this factor (five months), which took the starting point sentence down to 29 months. The Judge then allowed Mr Gotty a 20 per cent discount for his guilty pleas, taking the end sentence to one of 23 months’ imprisonment.

[11]              The Judge then noted that home detention was an available sentence. He recorded that Mr Gotty had a “fairly favourable” pre-sentence report, noting that the report writer recommended home detention. The Judge recorded that the default position for people who get associated with and those dealing with illicit drugs is normally a prison sentence – noting that personal circumstances count for little and that a message should be sent to the community that the Courts will respond sternly to those who become involved in drug-related offending. The Judge however went on to comment that he could not help but think, given the responsible way the Crown had brought the charges against Mr Gotty and the concession that the Crown had made regarding Mr Gotty’s addiction and his offending, that it might be that Mr Gotty had turned a corner regarding rehabilitation. The Judge considered “by some margin” that Mr Gotty’s rehabilitative prospects outweighed the need for a punitive sentence and he was prepared to accede to the request for a sentence of home detention. He sentenced Mr Gotty to eight months’ home detention, subject to post-detention conditions for six months after the sentence expiry date.

The appeal

[12]              The appeal is brought to s 244 of the Criminal Procedure Act 2011. Section 250(2) provides that this Court, as the first appeal Court, must allow the appeal if it is satisfied that:

(a)for any reason there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

In any other case, the Court must dismiss the appeal.

[13]              The approach called for under s 250 requires both the identification of an error and that the appeal Court be satisfied that a different sentence should be imposed. The appeal Court does not start afresh, nor simply substitute its own opinion for that of the original sentencer.2

Submissions

[14]              Mr Sutcliffe, appearing for Mr Gotty, noted that the Judge did not expressly take into consideration the fact that Mr Gotty spent almost six months on remand in custody. He submitted that he should have done so. He further argued that Mr Gotty spent almost five months on EM bail, and that he should have received a discount of three months, rather than the two months allowed to him by the Judge. Finally, he argued that Mr Gotty should have been given a full 25 per cent discount for his guilty pleas. He noted that Mr Gotty had, from an early stage, indicated that he would like a sentence indication, but that the police had to first analyse the white crystalline substance they found in the course of the search. He said that Mr Gotty knew that the substance was not methamphetamine. As soon as this was confirmed, he asked for the sentence indication and he then promptly pleaded guilty. He argued that the delay was not caused by Mr Gotty. He referred to the recent decision of the Court of Appeal in Moses v R,3 pointing out that the Court has changed the approach previously adopted in sentencing where a defendant has entered a guilty plea or pleas. He sought to apply the Moses methodology to Mr Gotty’s case, arguing that it would increase the discount available. Taking all of these matters into account, he submitted that the sentence should be recalculated as follows:

(a)starting point – 38 months’ imprisonment;

(b)discount for rehabilitation and other mitigating features – two months, or 5.26 per cent;

(c)discount for five months spent on EM bail – three months, or 7.89 per cent;

2      R v Shipton [2007] 2 NZLR 218 (CA); Tutakangahau v R [2014] NZCA 279.

3      Moses v R [2020] NZCA 296.

(d)discount for addiction and nexus to offending – 15 per cent;

(e)discount for guilty pleas – 25 per cent.

He argued that the total discounts should have been 53.15 per cent, or 20.19 months, leading to a sentence of 17.81 months’ imprisonment. He then argued that this sentence should have been further reduced to recognise the fact that Mr Gotty spent six months in custody, reducing the prison term to 11.81 months’ imprisonment, and that that sentence should have been commuted to an end sentence of five to six months’ home detention.

[15]              Mr Whyte, for the Crown, argued that the Judge gave appropriate credit to  Mr Gotty for the time spent on EM bail, and in recognition of his guilty pleas. He acknowledged that no distinct recognition was given for time served in custody, but submitted that because the term of home detention ultimately imposed was significantly less than half of the sentence of imprisonment adopted by the Judge, the sentence of home detention imposed must have incorporated a credit for the time spent in custody. The Court of Appeal’s decision in Moses was acknowledged. It was submitted however that even allowing for the change in approach, the impact of the guilty pleas is limited. Mr Whyte’s calculations were as follows:

(a)global starting point – 38 months’ imprisonment;

(b)discount of 40 per cent (comprising five per cent for rehabilitation, 15 per cent for addiction issues and 20 per cent for guilty pleas) – resulting in sentence of 23 months’ imprisonment;

(c)discount of two months for time spent on EM bail – resulting in sentence of 21 months’ imprisonment;

(d)credit of six months for time spent on custodial remand – resulting in sentence of 15 months’ imprisonment – which commutes, applying generally accepted guidelines, to seven and a half months’ home detention.

It was further argued that the discounts for rehabilitation and addiction were generous. It was argued that a 10 per cent discount would have sufficiently accounted for both factors, which it was submitted, are interconnected. Undertaking the same arithmetical exercise, it was argued that a 10 per cent discount for these matters would result in a sentence of 18 months’ imprisonment, which could be commuted to a sentence of nine months’ home detention. It was argued that irrespective of the approach taken, the end sentence of eight months’ home detention could not be said to be manifestly excessive and that accordingly the appeal should be dismissed.

Analysis

[16]              There was no challenge to the starting point adopted by the Judge. I do not take this aspect of the sentence any further.

[17]              It is asserted that the Judge erred in failing to make any allowance for the almost six months which Mr Gotty spent on remand in custody. I accept that the Judge did not specifically refer to this matter. He should have done so and to this extent he erred.

[18]              Time spent on remand in custody is automatically factored in when setting the sentence start date where the sentence ultimately imposed is a sentence of imprisonment – the period the offender has spent in pre-sentence detention is deemed to be time served.4 As a result, pre-sentence detention in custody is not taken into account in determining the length of the sentence imposed.5 There are however no similar provisions where the end sentence imposed is home detention. With home detention, the sentence start date runs from the date that the sentence is imposed.6 The Court must therefore make a reduction, to factor into a sentence of home detention, for time spent on remand in custody.7 The reduction is normally equivalent to the time spent in custody. That is to ensure equality of treatment for offenders. With a sentence of imprisonment, the offender automatically obtains credit for all of the time spent on custodial remand; all of the time spent is deducted from the sentence to be served. So,

4      Parole Act 2002, s 90.

5      Sentencing Act 2002, s 82.

6      Section 80X(1).

7      Longman v Police [2017] NZHC 2928 at [8]; Parkinson v Police [2019] NZHC 1710 at [19]; Kirk v R [2019] NZHC 3361 at [7].

where a sentence of imprisonment is commuted to a sentence of home detention, the sentencing Judge should ensure that full credit is given for the time spent in custodial remand and deduct that time from the calculated term of imprisonment before the sentence of imprisonment is commuted to a sentence of home detention.8

[19]              Here, the Judge made no specific reference in his sentencing notes to the almost six months that Mr Gotty spent on remand in custody. There is however force in the Crown submission that the overall sentence imposed was such that a credit must have been factored in. The Judge’s global starting point was 38 months’ imprisonment. After giving credit for all of the various discounts allowed by the Judge, the calculated sentence became one of 23 months’ imprisonment. Credit for the six months spent in custodial remand should have been allowed for at this stage. That would have taken the sentence down to 17 months’ imprisonment, which, applying the generally accepted methodology,9 would commute to a sentence of eight and a half months’ home detention.

[20]              I now turn to the issue of EM bail. Mr Gotty says that the Judge gave him insufficient discount in this regard.

[21]              Mr Gotty spent almost five months on EM bail. Time spent on EM bail is a mandatory consideration which must be taken into account when setting an appropriate sentence.10 It is clear however that the quantum of any deduction for time spent on EM bail is not a matter of arithmetical equivalence.11 The reasons for this are straightforward. First, even the most restrictive EM bail is not the same as serving time in prison.  It is considerably less restrictive.  Secondly, there are many variables

– the length of time on EM bail, the conditions imposed and the offender’s compliance. Even with a 24-hour curfew, there can be considerable variance, for example, in the number of absences permitted, so that two apparently similar sets of bail conditions

8      Parkinson v Police, above n 7 at [19].

9      Laloni v R [2015] NZCA 55 at [14]. The methodology of halving the sentence of imprisonment is commonly adopted, but it is not a matter of law. The proper approach is to engage in an evaluative assessment of all the circumstances: R v Bisschop [2008] NZCA 229; S v R [2011] NZCA 178.

10 Sentencing Act 2002, s 9(2)(h) and 9(3A).

11 Parata v R [2017] NZCA 48 at [10] and [12]; Chea v R [2016] NZCA 207 at [110]; Keown v  Crown [2010] NZCA 492 at [12]; Baillie v R [2010] NZCA 507 at [18]; R v Tamou [2008] NZCA 88 at [19].

can operate very differently.12 Thirdly, care is needed to avoid potential abuse. Were equivalence or close to it to be granted for time spent on EM bail, there would be an incentive to extend the time spent on EM bail to avoid serving the sentence of imprisonment.13

[22]              Here the Judge allowed a reduction of two months for the five months spent on EM bail. Even assuming there were no permitted absences and no breaches, I am not persuaded that the Judge erred in the allowance he gave. The level of discount in any given case is a matter of judicial discretion,14 and I consider that the two month credit given by the Judge was sufficient.

[23]I now turn to the discount for the guilty pleas.

[24]              The Supreme Court in Hessell v R emphasised that the credit given for a guilty plea (or pleas) must 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.15

[25]              In the present case, the pleas were not entered at the first available opportunity. Initially not guilty pleas were entered. Although an indication was given some months later that the matter would be resolved, guilty pleas were only entered at a relatively late stage. I accept that, at least in part, Mr Gotty was not responsible for the delay that occurred. The Crown had not finalised its case, in particular in regard to the white crystallised substance found in Mr Gotty’s bedroom in the course of the search. However, that substance was the subject of only one of the charges. There was nothing to stop Mr Gotty entering guilty pleas to the other charges rather earlier in the process. Moreover, the Crown had a strong case. It had the text messages on Mr Gotty’s cellphone and the various items found in the Mr Gotty’s bedroom when the search warrant was executed. In all the circumstances, I do not consider that the Judge can be faulted for adopting a discount of 20 per cent for the guilty pleas.

12     Longman v Police, above n 6 at [6].

13     Parata v R, above n 12, at [13].

14     Kidman v R [2011] NZCA 62 at [15]-[16], and cases cited at fn 11 above.

15     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].

[26]              Nor do I consider that the Court of Appeal’s recent decision in Moses has any impact in this case. In that case, the Court held that a two-step methodology should be used in calculating sentences where a guilty plea is entered. First, the sentencing Court should calculate the adjusted starting point, incorporating aggravating and mitigating features of the offence; secondly, the Court should incorporate all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

[27]              The New Zealand Bill of Rights Act 1990 states that penal enactments are not to be given retrospective effect to the disadvantage of an offender.16 Further, an offender is to be given the benefit of any decrease in penalty enacted after the offence, but before sentencing.17 In Zhang v R, it was observed that a change in sentencing practice does not alter the penalty provided by the legislation creating the offence, but rather is an exercise of the sentencing discretion in any individual case.18 As the Court put it, a change in guideline does not amount to a change of penalty for the purposes of the relevant statutory provisions. As a result, it held that a guideline judgment should only apply to sentences that have already been imposed if, first, the appeal against the sentence has been filed before the date the judgment is delivered and, secondly, the application of the judgment will result in a more favourable outcome to the appellant.19

[28]              In the present case, the appeal was filed on 10 July 2020. Moses was released on 15 July 2020. This Court has applied Moses to appeals filed before the decision was released, without analysis, but presumably on the basis that it is a guideline judgment.20

[29]              Whether Moses is a guideline judgment or a judgment concerned with methodology only, was not argued before me.21 Rather, Mr Whyte was prepared to accept that the Moses methodology applied to Mr Gotty’s appeal. Given this

16     New Zealand Bill of Rights Act 1990, s 25(g).

17     Sentencing Act 2002, s 6.

18     Zhang v R [2019] NZCA 507.

19     At [188]-[190]; See also R v Vadati CA256/05, 19 December 2005 at [8].

20     Reihana v Police [2020] NZHC 1786 at [9]; Bramley v Police [2020] NZHC 1788 at [7(a)]. See also Beattie v Police [2020] NZHC 1831 at [11].

21     I note that the Court of Appeal in Moses referred to it being a guideline judgment – at [49].

concession, I do not take this point further. Even if I were to apply Moses, and consider all aggravating and mitigating features together, including the guilty pleas, the impact would be very limited. It would make a difference of approximately two weeks to the period of home detention. In my judgment, to reduce the sentence by that figure would be tinkering.

[30]              I have stood back and considered the circumstances of the offending and of Mr Gotty against the applicable sentencing purposes and principles. I am not persuaded that the end sentence of eight months’ home detention imposed by the Judge was manifestly excessive. Nor am I persuaded that a different sentence should be imposed.

[31]The appeal is dismissed.

Wylie J