Griffin v R

[2020] NZHC 548

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-11

[2020] NZHC 548

BETWEEN

ASHLEY GRIFFIN

Appellant

AND

THE QUEEN

Respondent

Hearing:	18 March 2020
Appearances:	R Nabney for Appellant (on instructions from WT Nabney) MJ Lillico for Respondent
Judgment:	18 March 2020

JUDGMENT OF WALKER J

This judgment was delivered by me on 18 March 2020 at 12.45 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

GRIFFIN v R [2020] NZHC 548 [18 March 2020]

[1]        Mr Griffin appeals a sentence of three years and four months’ imprisonment imposed on him.

[2]        Mr Griffin pleaded guilty to seven charges; namely, supplying methamphetamine (a representative charge)1, possessing methamphetamine for supply2, one charge of possession of cannabis for supply3, and various firearms charges.4

[3]        He was found in possession of 37 grams of methamphetamine. Text messages indicated supply transactions to 18 individuals, and a supply of three grams in respect of five of the supply transactions.

[4]        The nub of this appeal is whether the starting point adopted of four years was excessive, bearing in mind the principle of “parity”. His co-offender, Ms Jayes, received a starting point of three years’ imprisonment for her methamphetamine offending. Ms Jayes received an end sentence of 12 months’ home detention.

Facts

[5]        On 26 May 2017, Mr Griffin and Ms Jayes were staying at a motel in Tauranga. Mr Griffin was located at the address by Police. The Police searched Mr Griffin, the motel room and his motor vehicle. The following items were located in the motel room:

(a)A sawn off 12 gauge shotgun;

(b)Six shotgun cartridges;

(c)A telescopic sight;

(d)A tin of 500 .77 shotgun pellets;

1      Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a).

2      Sections 6(1)(f) and 6(2).

3      Sections 6(1)(f) and 6(2)(c).

4      Arms Act 1983, ss 45(1) and 50.

(e)Five live rounds of .22 ammunition;

(f)A glass pipe used to smoke methamphetamine;

(g)A pill box containing 14 different coloured pills;

(h)Approximately $38,215.00 in cash;

(i)A bong to smoke cannabis;

(j)A notebook containing what appeared to be a ticklist; and

(k)Various quantities of cannabis leaf material.

1. In the Ford motor vehicle, Police found:

(a)An over/under 12 gauge shotgun;

(b)A .22 rifle lever action rifle with a spent cartridge ejected from the firing chamber;

(c).303 rifle magazine;

(d)Various items of 12 gauge and .22 long rifle ammunition located throughout the car under the spare wheel;

(e)Two ounce deal bags of cannabis;

(f)Two boxes of 50 rounds of .22 long rifle ammunition;

(g)Glass pipes used to smoke methamphetamine;

(h)Electronic scales;

(i)Numerous new small plastic “point” bags; and

(j)Approximately 37 grams of methamphetamine.

[7]On Mr Griffin, the police found:

(a)$250 cash separate to the wallet;

(b)$750 in the wallet;

(c)A lock knife; and

(d)29 small point bags.

[8]        When he was interviewed by the Police, Mr Griffin said that he used methamphetamine and cannabis, but denied selling them. He did not know how much methamphetamine he possessed. He gave an alternative explanation for the discovery of cash, claiming that around $30,000 in cash had been given to him by his parents to help him purchase a car and to assist with his living costs.

District Court Decision

[9]        Judge MacDonald imposed a starting point of four years’ imprisonment for the methamphetamine offending. He added ten months on a totality basis for the firearms and ammunition charges. He then  awarded  a  three-month  deduction,  to  reflect  Mr Griffin’s issues with drug addiction, and a nine-month reduction for time spent on electronically monitored bail. The guilty plea discount amounted to a further six- month reduction. This resulted in an end sentence of three years, four months’ imprisonment for the two methamphetamine charges. He imposed a sentence of two years’ imprisonment for all the remaining charges, concurrently.

Approach on Appeal

[10]      Appeals against sentence are governed by ss 244, 245 and 250 of the Criminal Procedure Act 2011. I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should have

been imposed.5 Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the sentence was reached.6

Analysis

[11]      The appellant was sentenced according to Zhang band 2.7 That covers cases where the quantity of methamphetamine involved is less than 250 grams. It provides for sentences of between two and nine years. What is in issue is whether the distinction in starting point between Mr Griffin and Ms Jayes is sufficiently coherent and explicable bearing in mind that sentencing requires flexibility and discretion and must involve, “a full evaluation of the circumstances to achieve justice in the individual case” at hand.8

[12]      There is a significant difference  between  the  end  sentences  imposed  on Mr Griffin and Ms Jayes. Ms Jayes was sentenced to 12 months’ home detention;  Mr Griffin was sentenced to three years, four months’ imprisonment. However, more relevant is the difference between the start points for the methamphetamine supply charges. Ms Jayes’ was subject to a three-year starting point; Mr Griffin’s starting point was four years.

[13]      Given the starting point reflected the methamphetamine charges alone, the one- year difference between the co-offenders’ starting points could be explained by the fact Mr Griffin was being charged with two offences – supply and possession. However, Mr Lillico for the Crown fairly (and correctly in my view) discounted this explanation based on the chronology provided by the interception warrant. He focused instead on the differentiation of role inferred by the District Court Judge.

[14]      The sentencing Judge records his “sense” that Ms Jayes’ role in the offending was a “lesser one”. I presume this was derived from Mr Griffin’s admissions in respect of the stock of methamphetamine and cash which suggests potentially greater responsibility in a low-level wholesale or retail operation. However, on the material

5      Criminal Procedure Act 2011, s 250.

6      Skipper v R [2011] NZCA 250 at [28].

7      Zhang v R [2019] NZCA 507.

8      Zhang at [120]; Hessell v R, above n 38, at [38]

before me, there appears a degree of chance in terms of timing of the arrest, which in- turn impacted the charges. In reality, I consider it is somewhat difficult to say that  Ms Jayes’ role was so significantly less than Mr Griffin that it justifies the difference of 12 months in starting points. From the text evidence, it appears they both supplied similar quantities of methamphetamine to willing buyers. Text messages on Ms Jayes’ phone indicate that between 1 May and 26 May, after her arrest, she received text messages about the supply of approximately 28.6 grams of methamphetamine, and a total of $22,440. She also texted a number of customers to “pay their tick or monies owing”. Text messages on her phone show that she discussed methamphetamine transactions with around 20 people. It indicates that she played a key role in the methamphetamine operation. Although Mr Griffin was found with $39,000 approximately (indicating dealing profit) and 37 grams of methamphetamine (from which certain inferences may be drawn), I do not consider his offending in relation to supply was significantly more serious than Ms Jayes based on this material before me.

[15]      Taking all that into account, I am satisfied that a one-year difference between the starting points is not justified, having regard to parity between the co-offenders.

Conclusion

[16]      I allow the appeal. I reduce the starting point for Mr Griffin’s sentence to three and a half years’ imprisonment. There is (rightly) no challenge to the methodology adopted by Judge MacDonald, which I respectfully endorse:

(a)Ten-month uplift for the firearms charges;

(b)Three-month deduction for drug addiction issues;

(c)Nine-month deduction for time spent on EM bail; and

(d)Six-month reduction for guilty plea.

[17]      The final sentence is two years nine months on the methamphetamine charges. I do not disturb the nominal sentence of 2 years’ imprisonment on the remaining charges, to be served concurrently

.........................................................

Walker J