Griffin v The Queen
[2021] NZHC 3317
•6 December 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-137
CRI-2021-463-138 [2021] NZHC 3317
BETWEEN TROY GRIFFIN
Appellant
AND
THE QUEEN
Respondent
Hearing: 30 November 2021 Appearances:
S Mills for the Appellant L Evans for the Crown
Judgment:
6 December 2021
JUDGMENT OF MUIR J
This judgment is delivered by me on 6 December 2021 at 3:30 pm.
.....................................................
Registrar / Deputy Registrar
Solicitors:
Lance Lawson, RotoruaGordon Pilditch, Crown Solicitors, Rotorua
GRIFFIN v R [2021] NZHC 3317 [6 December 2021]
Introduction
[1] Mr Troy Griffin appeals against his sentence of five years’ imprisonment imposed by Judge Cooper in the Rotorua District Court on 27 January 2021 in respect of the following charges:1
(a)being in charge of a motor vehicle with blood containing evidence of a controlled drug and causing injury (x 2);2
(b)unlawfully taking a motor vehicle;3
(c)failing to stop to ascertain injury;4
(d)dangerous driving;5
(e)driving while disqualified (third or subsequent);6
(f)possession of cannabis;7
(g)breach of release conditions;8
(h)breach of community work;9
(i)possession of methamphetamine for supply;10 and
(j)supplying methamphetamine.11
1 R v Griffin [2021] NZDC 20051 [Sentencing notes].
2 Land Transport Act 1998, s 61(2)(b): carrying a maximum penalty of five years’ imprisonment.
3 Crimes Act 1961, s 226(1): carrying a maximum penalty of seven years’ imprisonment.
4 Land Transport Act, s 36(1)(c): carrying a maximum penalty of five years’ imprisonment.
5 Section 35(1)(b): carrying a maximum penalty of three months’ imprisonment.
6 Section 32(1)(a) and (4): carrying a maximum penalty of two years’ imprisonment.
7 Misuse of Drugs Act 1975, s 7(1)(a): carrying a maximum penalty of three months’ imprisonment.
8 Sentencing Act 2002, s 96(1): carrying a maximum penalty of one year’s imprisonment.
9 Section 71(1)(a): carrying a maximum penalty of three months’ imprisonment.
10 Misuse of Drugs Act, s 6(1)(f) and (2)(a): carrying a maximum penalty of life imprisonment.
11 Section 6(1)(c) and (2)(a): carrying a maximum penalty of life imprisonment.
[2] The appellant also faced a further charge of wilful damage as a result of slashing the tyres of his partner’s vehicle.12 His appeal is advanced on the basis that the starting point for the charges of possession of methamphetamine for supply and supplying methamphetamine was too high; the discount for personal mitigating factors should have been applied to all of the offending, rather than just the methamphetamine charges; there should have been a discrete discount for remorse and steps taken towards rehabilitation; and there should have been a totality adjustment. The result it is suggested is an end sentence which was manifestly excessive.
[3]I turn now to the facts of the offending.
The offending
Taupō offending
[4] All but the methamphetamine charges and the single charge of wilful damage arose out of what has been called the Taupō offending.
[5] The appellant is a disqualified driver having received six previous convictions for driving while disqualified. In June 2019 (less than a year before the present offending), he had been sentenced to imprisonment for one year and 11 months on a number of charges including operating a motor vehicle recklessly, failing to stop and possession of methamphetamine for supply.
[6] On 17 March 2020 at approximately 7.00 am the appellant was driving on Poihipi Road which links Taupō township to the Western Bays Highway. He was doing so with methamphetamine, cannabis and ketamine in his system. A short distance out of Taupō he drifted across the centre line and into the path of an oncoming truck. He sideswiped the vehicle but continued without stopping. A short while later he crossed onto the wrong side of the road while rounding a bend and collided with an oncoming car. Both vehicles suffered extensive damage.
12 Summary Offences Act 1981, s 11(1)(a): carrying a maximum penalty of three months’ imprisonment.
[7] The young couple in the other vehicle, aged 19 and 21 respectively, sustained critical injuries. One of them was trapped in their vehicle and had to be cut out by the fire service. Both were then flown by helicopter to Waikato Hospital. The male victim had his leg broken in four places, his lower intestines perforated and required surgery to remove a metre of his intestine, as well as some of his bowel and colon. As a result of these surgeries he will now be vitamin B12 deficient for life and requires regular injections. He also sustained lacerations to his liver and his spleen. He had broken knuckles and a fractured lower disc in his back causing nerve damage, he had bruised lungs and fractured ribs. He had to have two operations on his legs in addition to that on his alimentary canal. He was in hospital for two weeks and has been unable to work since. He continually suffers from pain and night terrors.
[8] His female companion also suffered very severe injuries including a compound fracture of the left knee, shattered right heel and ankle, dislocated foot and right knee, multiple pelvic, tailbone and lower spine fractures, fractured ribs, broken arm, jaw fractures on both sides, broken nose, severe concussion, and lacerated spleen, kidneys, lung and bladder.
[9] Two innocent young people heading to work on an early autumn morning very nearly lost their lives. The ongoing physical, financial, psychological and emotional effects of the offending were found by the sentencing Judge to have been “profound” on both victims.
[10] The appellant was initially also trapped inside his vehicle. Members of the public came to his aid and helped him exit through the front passenger door. However, no sooner was he free than he jumped into a motor vehicle belonging to one of the members of the public who had stopped to assist. A 15 year old boy with a broken leg was in the back of the vehicle. Although members of the public tried to stop the appellant, he drove off in the vehicle towards Taupō. As he did so he hit one of the bystanders and another had to jump out of the way. He made no effort to ascertain the injuries of those in the car he had just crashed into nor assist them in any way.
[11] Driving to Taupō he hit speeds of 130 to 150 kilometres per hour in an 80 kilometre per hour zone. The 15 year old boy remained trapped in the back seat. The
appellant drove on the wrong side of the road a number of times, including on moderate to sharp corners where there was no visibility. He let the 15 year old boy out of the vehicle a short time later, before continuing for another kilometre or so and abandoning the vehicle on the side of the road.
[12] Located in the boot of the vehicle which the appellant had initially been driving were 30 to 40 freshly harvested cannabis plants. They were fully grown with a large amount of head material.
Methamphetamine offending
[13] The appellant also faced charges of possession of methamphetamine for supply and supplying methamphetamine. These charges arose out of the Police investigation codenamed Operation Ulysses. This was an investigation into suspected drug dealing activity by the Rebels motorcycle gang in Taupō and the Bay of Plenty area.
[14] The possession charge was based on text message data and intercepted communications between the appellant and a senior patched member of the gang. The two arranged to meet on multiple occasions so that the appellant could obtain various amounts of methamphetamine which he would then on-sell to his own group of customers. The precise amounts of methamphetamine were not able to be determined.
[15] The charge of supplying methamphetamine relates to a single occasion on which the appellant supplied 0.5 grams of methamphetamine to the same senior patched member of the gang who at that time had run out of methamphetamine.
Other charges
[16] The appellant faced a further charge of wilful damage as a result of slashing the tyres of his partner’s vehicle. He was also subject to one charge of breaching community work and one charge of breaching release conditions.
District Court decision
[17] The experienced District Court Judge observed that the appellant has numerous previous convictions including:13
(a)possession of cannabis for supply in 2017;
(b)possession of methamphetamine for supply in 2018;
(c)reckless driving and aggravated failing to stop when signalled in 2013; and
(d)reckless driving and aggravated failing to stop when signalled in 2018.
[18] He also noted that the appellant had six previous convictions for driving while disqualified, numerous breaches of release conditions and breaches of community- based sentences.
[19] The Judge referenced both a psychological report from Mr Nick Lascelles, Forensic Psychologist dated 28 July 2021 and a cultural report prepared pursuant to s 27 of the Sentencing Act 2002. He noted that both identified the appellant as having been raised in “somewhat impoverished conditions”.14 He noted that both of the appellant’s parents were heavy drug users, that the appellant was excluded from school at 14 years of age and that he began using cannabis at 12 and methamphetamine at 17. The Judge observed that the appellant has a high degree of drug dependency and requires intensive and prolonged intervention to address these issues.
[20] In fixing a starting point, the Judge took the two charges of driving causing injury with evidence of drugs in the appellant’s system as the lead charges. He took into account the nature of the offending which involved continuing to drive after the initial collision with the truck, driving on the wrong side of the road in the face of oncoming traffic, and the fact that all of this occurred while the appellant was disqualified from driving and under the influence of a “cocktail of drugs” including
13 His criminal and traffic history comprises eight pages with consistent offending from age 16.
14 Sentencing notes, above n 1, at [16].
methamphetamine, cannabis and ketamine.15 He described the impact of the offending on the victims as “catastrophic”.16 He therefore adopted a starting point of three years’ imprisonment on the lead charges with an uplift of six months for the charge of driving whilst disqualified and one month for the appellant’s previous convictions. Having regard to the other Taupō offences he adopted a starting point for that tranche of offending of four years and six months’ imprisonment.
[21] From that starting point he allowed a discount of 20 per cent for the appellant’s guilty pleas but no discount for the matters raised in the s 27 cultural report. Nor did he make any reduction for remorse or steps taken towards rehabilitation. The end sentence for the Taupō offending was therefore three years and eight months’ imprisonment.
[22] In respect of the charges of possession of methamphetamine for supply and supplying methamphetamine, the Judge adopted a starting point of two years’ imprisonment. This was uplifted by two months to account for the appellant’s previous convictions for methamphetamine related offending. The Judge allowed discounts of 20 per cent for the appellant’s guilty pleas and a further 15 per cent to acknowledge that the drug offending was “driven by addiction”, in turn related to his upbringing. This resulted in an end sentence of 17 months’ imprisonment on the methamphetamine offending, and a combined sentence of five years and one month for the two tranches of offending. The Judge rounded this down to five years.
[23]He chose not to allow any further adjustment for totality, stating:
[32] I step back and consider when one looks at the totality of the defendant’s offending; drug dealing with a background of drug dealing, bad driving with a background of bad driving and a total end sentence of five years imprisonment. I do not consider that any further adjustment is required for totality and the end sentence in this case will be one of five years imprisonment.
[24] The final sentence imposed was allocated in the following way: three years’ imprisonment on the charges of driving with drugs in the appellant’s system causing injury; 12 months’ imprisonment on the remaining driving charges; and 12 months’
15 At [24].
16 At [25].
imprisonment on the charges of possession of methamphetamine for supply and supplying methamphetamine. These sentences were cumulative with the result being an end sentence of five years’ imprisonment. Other short concurrent sentences were imposed in respect of the remaining charges.17
Approach on appeal
[25] To succeed on an appeal against sentence the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.18 In all other cases, the court must dismiss the appeal.19 In this respect, the court will not simply substitute its own view for that of the original sentencing judge.20 If the sentence is within the range that can properly be justified by accepted sentencing principles, the court will typically dismiss the appeal.21 It will only intervene if the sentence is manifestly excessive or wrong in principle.22
[26] The appeal court’s focus in this respect will always be on the final sentence imposed rather than the process by which that sentence was reached.23 That is a particularly important consideration in a case such as this.
Submissions
The appellant
[27] Mr Mills, for the appellant, takes no issue with the overall starting point of four years and six months’ imprisonment adopted for the Taupō offending. However, he suggests that a combination of errors made by the Judge resulted in an end sentence that was manifestly excessive.
17 This included concurrent sentences of two months’ imprisonment on the charges of possession of cannabis, breach of release conditions and breach of community work; and one month for the charge of wilful damage. The appellant was also disqualified from driving, yet again, for a period of two years.
18 Criminal Procedure Act 2011, s 250(2).
19 Section 250(3).
20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
21 At [36].
22 At [30]–[35]. See also Te Aho v R [2013] NZCA 47 at [30].
23 Tutakangahau, above n 21, at [36].
[28] First, Mr Mills submits that the starting point adopted in respect of the methamphetamine offending was too high. With reference to the Court of Appeal’s decision in Zhang v R, he submits that the appellant’s role in the possession for supply operation falls within the “lesser” category.24 He submits that the appellant is addicted to methamphetamine which was a driving force behind his offending. Mr Mills also notes that the appellant was only a peripheral player in the Operation Ulysses investigation. By reference to the decisions in Matchitt v R and Murphy v New Zealand Police,25 Mr Mills submits that an appropriate starting point for the charges of possession of methamphetamine for supply and supplying methamphetamine should have been 18 months’ imprisonment.
[29] Secondly, Mr Mills submits that the 15 per cent discount for mitigating factors personal to the appellant should have been applied not only to the charges for methamphetamine related offending but also to the charges arising from the Taupō offending. He submits that the various reports discussed by the sentencing Judge demonstrated a clear nexus between the appellant’s offending and his background of trauma and history of substance abuse. That abuse was normalised throughout his childhood and has progressed to such an extent that the appellant must supply drugs in order to fund his own addiction. While the link between his addiction and the Taupō offending was less direct than with the methamphetamine charges, Mr Mills submits that the appellant was under the influence of drugs at the time of the motor vehicle crash. He says it is therefore a reasonable inference that this affected his decision- making at the time of the offending. The 15 per cent discount should have applied across the board.
[30] Thirdly, Mr Mills notes that the appellant wrote letters of remorse to both the victims of the vehicle collision and to the owner of the vehicle he stole at the scene. He references a further letter to the court. He submits that the letters were genuine. He notes that the appellant was also willing to attend a restorative justice conference with the victims of his offending, although the conference did not occur. While the sentencing Judge suggested that these expressions of remorse were late in the piece, Mr Mills submits that this was not the case in that they were filed with counsel’s
24 See Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [115].
25 Matchitt v R [2019] NZHC 409; and Murphy v New Zealand Police [2020] NZHC 3261.
submissions. Further, the appellant had completed a 20 hour positive changes programme while in prison. These factors he submits warrant a further discrete discount.
[31] Finally, Mr Mills suggests that there should have been a reduction to the end sentence to ensure that the total period of imprisonment was not wholly out of proportion with the gravity of the offending.
The Crown
[32] Mr Evans, for the Crown, submits that the starting point for the methamphetamine offending was well within the range available to the Judge. He submits that there is clear evidence that the appellant was involved to a degree greater than the half gram supply for which he was eventually convicted. Although the precise amount cannot be determined, a broader and more practical evaluation of the evidence makes it plain that he was actively engaged in supplying methamphetamine on a regular basis. While he had no influence on those above him in the chain, Mr Evans submits that the appellant had his own network of customers over which he had full control. He also had full knowledge of the supply chain through the gang member from which he sourced methamphetamine. This was not a case where the appellant was involved in the trade through coercion, intimidation or pressure.
[33] As such, Mr Evans submits that the offending could properly have been considered within the higher end of band one in Zhang justifying a starting point of up to four years’ imprisonment.26 By reference to the appeal of Ms Crighton in Zhang, Mr Evans submits that a starting point of two years’ imprisonment was well within the available range given the appellant’s “full awareness of the offending” and the fact that he was a “busy street-level dealer”.
[34] With respect to discounts, Mr Evans submits that the Judge was entirely correct to confine further discounts for the methamphetamine offending only. He submits that there is no causal nexus between the appellant’s upbringing and the Taupō offending. He points out that in an earlier sentencing indication by Judge Snell (which was not
26 Zhang, above n 24, at [125].
accepted by the appellant) and in Judge Cooper’s sentencing notes, both Judges made factual findings that the appellant’s actions following the crash were of a person desperate to get away from the scene because of the large quantity of cannabis in his possession. Both Judges rejected the appellant’s suggestion that he was simply trying to get to the hospital. In these circumstances, Mr Evans submits that there is insufficient nexus between the appellant’s actions and his personal circumstances to justify a discount.
[35] Likewise, Mr Evans submits that the sentencing Judge was correct to find that no discrete discount for remorse or rehabilitation was available. He suggests that the appellant’s letters of apology, drafted late in the piece, show little in the way of genuine remorse and that Mr Griffin has also made no genuine attempts at rehabilitation. In fact, Mr Evans observes, in the months following the accident, when the appellant was released on bail due to his medical needs, he absconded for several months before being re-arrested.
[36] Finally, Mr Evans submits that when the Judge stood back and looked at the end sentence as a whole, he was correct to find that no totality adjustment was necessary. This was offending which involved a total of 11 charges, resulted in “catastrophic” consequences for innocent road users after a spate of driving offences,27 and also included serious methamphetamine offending. The end sentence of five years’ imprisonment was demonstrably justified.
Discussion
[37]The appeal raises four issues. I will address each in turn.
[38] With respect to the appellant’s methamphetamine offending, I assess the starting point as well within range. Mr Mills submits that the appellant’s role appropriately falls within the “lesser” category identified by the Court of Appeal in Zhang.28 However, there are many features of that categorisation which are not apposite.
27 Sentencing notes, above n 1, at [25].
28 Zhang, above n 24, at [126].
[39] For example, the appellant cannot be described as performing only a limited function under direction. He was likewise not engaged by pressure, coercion or intimidation, nor was he involved through naivety or exploitation. Indeed, I accept Mr Evans’ characterisation that the appellant appears to have been a busy street-level dealer. While he likely had no influence on those above him in the chain, he nevertheless had his own network of customers over which he had full control. He procured methamphetamine on multiple occasions and in varying quantities from a senior patched member of the Rebels motorcycle gang with whom he was well acquainted.29
[40] Relevant also is the fact that, although following a disputed facts hearing he was sentenced on the supply charge for only half of a gram, the possession for supply charge was brought on a representative basis consistent with Mr Evans’ “busy street level dealer” characterisation. Indeed, in the appellant’s interview with Mr Lascelles he described not having been employed since 2012 on the basis that it was easier to “go to the brothers and get a big bag of P”.
[41] The authorities referred to me by Mr Mills are instructive but ultimately not determinative. As Mr Mills himself acknowledges, Murphy involved an offer to supply only and in Matchitt the Court accepted that the low level supply (two grams) occurred in the context of funding a recently escalated drug habit. Despite that significant mitigating feature the High Court nevertheless upheld as well within range a starting point of 20 months’ imprisonment.
[42] The appellant is in a very different category. He is, on his own admission, a committed, long-term street level drug dealer. His offending was not driven solely by addiction. Rather, he made the decision many years ago that methamphetamine dealing represented an easier path in life than gainful employment.
[43]I am unpersuaded therefore that there was an error in the starting point adopted.
29 The summary of facts describes the appellant as a “long-time associate” of the gang member in question.
[44] Turning then to the question of discounts, I accept in principle Mr Mills’ submission that any discount for factors personal to the appellant should have been applied in respect of all of the offending. Mr Evans submits that there is no nexus between the appellant’s upbringing and the Taupō offending. He refers to the observations of Judge Snell and Judge Cooper that the appellant’s actions following the crash were those of a person “desperate to get away from the scene quickly because of what he had done and because of the cannabis he had in his possession, rather than to go to hospital”.30 I have no problem with that characterisation. But it says little about whether or not the appellant’s upbringing or history of substance abuse had any causative bearing on the offending.
[45]In this respect Mr Lascelles says:
Mr Griffin’s index charges related to the motor vehicle crash, and subsequent unlawful taking of a vehicle are less directly related to his drug abuse. His impulsive and egocentric orientation to life, where the rights of others are secondary to his goals, was evident throughout the incident, from choosing to drive while under the influence of drugs, to absconding from the scene without attending to others and in a stolen vehicle. Mr Griffin’s lack of insight into his behaviour remains prominent to the present.
[46] Ultimately, discounts for addiction or matters of family deprivation are, like mental impairment, a reflection of the fact that criminal responsibility is a judicial response to an offender’s willed choice to offend.31
[47] I accept that the appellant’s background, which was characterised by an absence of any positive role modelling, the normalisation of substance abuse by parents who did nothing to conceal it from their children and regular physical punishment, have all played a part in the person the appellant has become. But, by the same token, the causative links have been loosened by a seemingly calculated decision almost 10 years ago that a life entirely outside societal norms as a drug dealer was “easier” than any alternative.
[48] In that context, I consider the 15 per cent discount adopted by the Judge erred on the generous. No criticism could have been made of a figure closer to 10 per cent
30 Sentencing notes, above n 1, at [26].
31 Within the mental health context see Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50].
and, given the well recognised principle that s 27 discounts are constrained in the case of very serious offending,32 that must be especially so if the discount is to be applied across the board, to include the Taupō offences.
[49] As to remorse and rehabilitation, I do not consider any discrete discount, apart from that implicit in the recognition of guilty pleas, was appropriate. The appellant made no attempt to ascertain the injuries of those in the car he hit and abused, to a quite extraordinary level, the civic mindedness of those who stopped to assist. He commented to officers when arrested that the owner of the vehicle he stole was “being a dick”. In short, his actions at that time were the antithesis of anyone displaying any sense of remorse. To the contrary, they were simply further manifestations of what Mr Lascelles calls his “impulsive and egocentric orientation to life”. Nor were his guilty pleas entered at the earliest opportunity. Nor were letters of apology forthcoming until shortly before sentencing. Any steps towards rehabilitation must likewise be viewed in the context of him absconding for several months when granted bail for medical reasons. The Judge was correct not to allow a discount for remorse or rehabilitation in these circumstances.
[50] With respect to any totality adjustment, beyond the one month by which the sentence was rounded down in any event, the question is whether the total period of imprisonment was wholly out of proportion with the gravity of the offending. I do not think it was.
[51] As indicated, my focus must remain on the final sentence imposed rather than the process by which that sentence was reached.33
[52] This was, as the sentencing Judge observed (but allowing for an element of euphemism in his description), “drug dealing with a background of drug dealing” and “bad driving with a background of bad driving”.34 The appellant has previous convictions for drug dealing including for possession of methamphetamine for supply in 2018. He also has previous convictions for driving related offences including for
32 Carr v R [2020] NZCA 357 at [65].
33 Tutakangahau, above n 21, at [36].
34 Sentencing notes, above n 1, at [32].
reckless driving and six previous convictions for driving whilst disqualified. It is simply a matter of providence that his actions in the present case did not cause the death of innocent road users. The consequences for the victims in the oncoming vehicle have been profound. Their young lives are likely to have been changed irrevocably.
[53] The case is one where the Judge would have been well justified in invoking s 8(d) of the Sentencing Act in respect of the lead Taupō offending as it was, in my view, near to the most serious offending of its kind. A four year starting point would not have been out of range. It was a case also where the sentencing purpose identified in s 7(1)(g)—protection of the community from the offender—assumed particular importance. Any small adjustment to the Judge’s sentence reflecting application of an addiction/deprivation discount across all offending is more than compensated for by these considerations.
[54] The final sentence was in my view some distance from being “manifestly excessive”.
Result
[55]The appeal is dismissed.
Muir J
7
0