Hall v R

[2020] NZCA 183

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA526/2018
 [2020] NZCA 183

BETWEEN	JEFFERY JAMES HALL Appellant
AND	THE QUEEN Respondent

CA528/2018
BETWEEN	TAMA HATEPE WATENE-TOI Appellant
AND	THE QUEEN Respondent

CA538/2018
BETWEEN	JULIAN DONALD ROBERTS Appellant
AND	THE QUEEN Respondent

Hearing:	30 April 2020
Court:	Cooper, Dobson and Nation JJ
Counsel:	M W Ryan for Appellant Hall W D McKean for Appellant Watene-Toi S Tait for Appellant Roberts F Sinclair and J Mara for Respondent
Judgment:	27 May 2020 at 10 am

JUDGMENT OF THE COURT

AThe appeals against sentence are allowed.

BIn each case, the sentences imposed on the appellants for the manufacture of methamphetamine are set aside.

C    The sentence imposed on Mr Roberts for the possession of methamphetamine for supply is set aside. 

D    In the case of Mr Roberts, concurrent sentences of eight years and 10 months’ imprisonment are substituted. 

E    In the case of Mr Watene‑Toi, a sentence of nine years’ imprisonment is substituted. 

FIn the case of Mr Hall, a sentence of eight years and six months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

1. These three appeals are against sentences imposed by Judge K B de Ridder in the District Court at Whangarei on 17 August 2018 for manufacturing methamphetamine and related crimes. [1]  They were among a number of appeals not set down for hearing pending delivery of this Court’s judgment in Zhang v R. [2]

   [1]R v Roberts [2018] NZDC 17152 [Sentencing judgment].

   [2]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

2. The principles set out in that judgment are to be applied because the appeals were filed before the date of delivery of the judgment, and the application of the judgment would result in a more favourable outcome for the appellants.[3]

   [3]At [188].

3. As has been explained in other recent judgments of this Court, the approach to be taken on appeal in such cases does not involve looking for error in the sentence imposed by the District Court Judge, but requires an assessment of the appropriate outcome of the sentencing exercise given application of the new guidelines established in Zhang.[4]

Background

[4]Su v R [2020] NZCA 128 at [7]; Miller v R [2020] NZCA 131 at [4]; and Royal v R [2020] NZCA 129 at [30].

1. On or around 3 July 2016, the appellant Mr Hall telephoned Coastal Holiday Homes Ltd to book a holiday house in Tutukaka for eight days from 7 July 2016.  Mr Hall booked the property for eight to nine days at a cost of approximately $2,500 using a “Prezzie” card.  On 9 July, a director of Coastal Holiday Homes went to the property to advise the occupants of an anticipated delivery of firewood.  She noticed a van parked outside, which was in a rough condition.  As she approached the house she saw that the windows were covered, but doors were open which she thought was unusual given that it was winter and raining.  She also heard what she described as a very loud hissing sound coming from the house.  On returning to her own vehicle she noticed that her skin was stinging and that continued for several hours.  She decided to telephone the police.

2. The police went to the property on 10 July 2016.  On approaching the house, they noticed that the external windows had been covered.  On reaching the deck, police saw Mr Watene-Toi come out of the house, but on seeing the police he uttered an expletive and ran back inside.  The police entered and encountered two men in the kitchen, Mr Roberts and Mr Watene-Toi.  They saw that there was a clandestine methamphetamine laboratory in operation.  Mr Roberts and Mr Watene‑Toi were arrested for the manufacture of methamphetamine.

3. Further equipment consistent with the manufacture of methamphetamine was found at the property, both inside and underneath the house.  Some $40,000 in cash was discovered in the bedroom occupied by Mr Roberts.  An AK-47 assault rifle was found in a bedroom occupied by a co-defendant, Ms McIntyre, and a shotgun was located in the bedroom occupied by Mr Hall and another co‑defendant, Ms Gibbons‑Hurinui.  There was a further firearm found at the front door and there were numerous rounds of ammunition.

4. Mr Hall and Ms Gibbons‑Hurinui were apprehended as they approached the property in a vehicle.  Both were arrested for the manufacture of methamphetamine.

5. Mr Roberts pleaded guilty to charges of manufacturing methamphetamine, possession of methamphetamine for supply, possession of equipment with the intention to manufacture methamphetamine and three charges of possession of firearms.

6. Mr Hall and Mr Watene‑Toi were tried and found guilty.  Mr Hall was convicted of manufacturing methamphetamine, possession of equipment with intent to manufacture methamphetamine, possession of a firearm and possession of ammunition.  He was acquitted on a charge of possession of methamphetamine for supply.

7. Mr Watene‑Toi was found guilty of manufacturing methamphetamine, and possession of equipment with the intent to manufacture methamphetamine.  He was acquitted of a charge of possession of methamphetamine for supply as well as charges relating to possession of firearms and ammunition.

8. Ms Gibbons-Hurinui was also found guilty on a charge of manufacturing methamphetamine and sentenced to 22 months’ imprisonment because of her “minimal” involvement.[5]  She has not appealed.

   [5]Sentencing judgment, above n 1, at [39].

9. A total of just over one kilogram of methamphetamine was uncovered by the police search.  That total included 461 grams of methamphetamine subsequently extracted by ESR from 1.22 litres of liquid found in a reaction flask in the kitchen laboratory at the time of the police search.  Had the manufacturing process been completed, ESR confirmed that the liquid could have produced up to 573 grams of final product, methamphetamine hydrochloride.  A total of 322.1 grams of methamphetamine was found in the kitchen, and some 71.7 grams was found in the bedroom occupied by Mr Roberts.  Further methamphetamine totalling approximately 182.3 grams was discovered throughout the house.

The sentences under appeal

1. As he was obliged to do, the Judge applied this Court’s judgment in R v Fatu.[6]  The Judge accepted the Crown’s submission that just over one kilogram of methamphetamine should be taken into account for the purposes of establishing the starting point.  This included the methamphetamine subsequently extracted by ESR from the 1.22 millilitres of liquid found in a reaction flask.  For the purposes of sentencing, the Judge took that amount to be some 566 grams.

   [6]R v Fatu [2006] 2 NZLR 72 (CA).

2. The Judge noted that the manufacturing took place after the planned booking of the property, the operation had involved organising and transporting the necessary equipment for the purposes of manufacture, there had been an attempt to disguise the operation from people who might otherwise have been able to observe it, and a fully operational methamphetamine laboratory had been established which was in operation by the time the police arrived at the scene.  Overall, he considered that it was clearly a commercial operation and there was no credible basis for considering the manufacture was for personal use.  The fact that the defendants apart from Mr Roberts had been acquitted on the charge of possession for supply did not in the Judge’s view detract from the commerciality of the manufacturing operation.  Accordingly, the Judge took into account the total amount of methamphetamine produced in arriving at the starting points he adopted for each of the appellants. 

3. The Judge considered that the total amount of methamphetamine involved clearly placed the offending in category four of the bands in R v Fatu, which prescribed periods of sentence from 13 years to life imprisonment.  The Judge took a starting point of 14 years’ imprisonment for Mr Roberts.  He applied an uplift of one year in respect of the weapons charges.  He deducted two years because of efforts made by Mr Roberts towards rehabilitation and to recognise the time he had spent on electronically monitored EM bail.  An additional 20 per cent discount was applied for Mr Roberts’ guilty plea.  The result was a final sentence of 10 years and six months’ imprisonment.

4. In the case of Mr Watene-Toi the Judge rejected an assertion he had made to the probation officer that he did not know methamphetamine was being manufactured.  The Judge considered this was not credible for three reasons.  First, Mr Watene‑Toi was present at the property when the laboratory was operating.  Secondly, the Judge thought Mr Watene-Toi’s reaction on seeing the police was significant.  Thirdly, there was a prior conviction for the manufacture of methamphetamine in 2002, which indicated Mr Watene‑Toi would have had some knowledge of what was involved in the process of manufacture.  The Judge concluded that Mr Watene‑Toi would have had an operational involvement in the manufacturing process and, in his case also, adopted a starting point of 14 years.  A discount of 10 per cent was allowed for time spent on EM bail, resulting in a final sentence of 12 years and six months’ imprisonment.[7]

   [7]As we note in discussing Mr Watene-Toi’s appeal below this is a deduction that should not have been made.

5. The Judge considered Mr Hall had played a significant role in setting up the operation by making the booking for the property.  The Judge also found he had provided support and assistance in other ways.  However, because he was not shown to have been actually involved in the manufacturing process itself and would have had no control over the amount of methamphetamine manufactured, the Judge adopted a lower starting point, of 10 years.  He applied an uplift of one year for the firearm and ammunition charges, to be served concurrently but then applied a discount of one year for the time spent on EM bail.  This meant that the effective term of imprisonment was 10 years.

Sentencing under Zhang

1. This Court’s judgment in Zhang describes a two-stage approach to sentencing, the first being setting the starting point, and the second addressing mitigating and aggravating circumstances relevant to the offender.  

2. In setting the starting point, the quantity of methamphetamine involved in the offending will be a significant consideration in fixing culpability.  So too will be the role played by the offender.

3. The sentencing bands established by Fatu are altered and new bands substituted.  The position that applied under Fatu may be compared with what is now to apply in terms of a table set out in the judgment:[8]

   [8]Zhang v R, above n 2, at [125].

Former:  Fatu	New:  Zhang
Band one: < 5 grams	2–4.5 years	Community to 4 years
Band two: < 250 grams	3–11 years	2–9 years
Band three: < 500 grams	8–15 years	6–12 years
Band four: < 2 kilograms	10 years to life	8–16 years
Band five: > 2 kilograms	10 years to life	10 years to life

1. Insofar as role is concerned, this Court referred in modified form to a description of roles which had been adopted for guideline purposes in the United Kingdom in 2012.[9]  Role is divided into three categories, headed “lesser”, “significant” and “leading” as in the following table:[10]

   [9]Sentencing Council (UK) Drug Offences: Definitive Guideline (2012).

   [10]Zhang v R, above n 2, at [126].

Role
Lesser	Significant	Leading
1.  Performs a limited function under direction; 2.  engaged by pressure, coercion, intimidation; 3.  involvement through naivety or exploitation; 4.  motivated solely or primarily by own addiction; 5.  little or no actual or expected financial gain; 6.  paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved; 7.  no influence on those above in a chain; 8.  little, if any, awareness or understanding of the scale of operation; and/or 9.  if own operation, solely or primarily for own or joint use on non‑commercial basis.	1.  Operational or management function in own operation or within a chain; 2.  involves and/or directs others in the operation whether by pressure, influence, intimidation or reward; 3.  motivated solely or primarily by financial or other advantage, whether or not operating alone; 4.  actual or expected commercial profit; and/or 5. some awareness and understanding of scale of operation.	1.  Directing or organising buying and selling on a commercial scale; 2.  substantial links to, and influence on, others in a chain; 3.  close links to original source; 4.  expectation of substantial financial gain; 5.  uses business as cover; and/or 6.  abuses a position of trust or responsibility.

1. The Court noted that purity levels of methamphetamine seized in New Zealand in recent years have tended to be high, at an average of 73 per cent.  Whilst it recognised the possibility that there may be cases where the purity levels are lower, the Court said that that would need to be established, if asserted, in a disputed facts hearing.[11]  There is no suggestion of that in the present case.

   [11]At [129].

2. The stage two analysis in the judgment, addressing mitigating and aggravating circumstances personal to the offender, outlined various considerations under the headings of addiction, mental health, duress or undue influence and social, cultural and economic deprivation.  To the extent those considerations are relevant to the present appeals, we discuss them below.

3. The Court emphasised that sentencing must achieve justice in individual cases.  Consequently, despite the detailed terms of the guideline judgment, sentencing judges retain flexibility and discretion in arriving at a final sentence which takes into account and weights all relevant considerations.[12]

   [12]At [10(a)], [48] and [120]. See also Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38]; and Orchard v R [2019] NZCA 529 at [28].

4. We turn now to each of the appeals.

Mr Roberts

1. For Mr Roberts, Mr Tait submitted first that the starting point was too high and second that insufficient discounts had been allowed for mitigating factors.

2. As to the starting point, Mr Tait argued initially that the Judge proceeded on the basis of too high a quantity of methamphetamine.  This was based on the fact that at the time Mr Roberts entered his guilty plea, the summary of facts referred to methamphetamine of just over 500 grams, and not the larger amount on which the Judge in fact sentenced.  This difference is largely accounted for by the fact that at the time of the plea, ESR analysis of the liquid seized by the police was still taking place.  ESR were later to carry out a methamphetamine quantitation revealing a significant amount of methamphetamine.  The reality is that the manufacturing process, if run to completion, would have resulted in methamphetamine of the combined weight used by the Judge at sentencing.  If there was serious doubt about the quantity Mr Roberts could have sought a disputed facts hearing, but he did not.  It would have been unreal for the Judge to adopt any other basis for sentencing.  We do not consider there is any merit in this point.

3. However, Mr Tait also submitted that having regard to the new sentencing regime discussed in Zhang, even if the amount of methamphetamine manufactured is taken as a little over one kilogram, the starting point of 14 years would treat the offending as being at the upper end of the new band four.  On the face of it, that does not seem appropriate having regard to the fact that band four applies to weights between 500 grams and two kilograms. 

4. Mr Sinclair, for the Crown noted that the starting point of 14 years’ imprisonment adopted by the Judge reflected his assessment that it would properly reflect the amount of methamphetamine produced, and the nature of the offending.  He argued that the Judge’s conclusion that Mr Roberts was a prime mover was amply justified having regard not only to the considerable quantity of methamphetamine found at the scene, but also the large sums of cash in Mr Roberts’ bedroom and his role in the manufacturing process itself.  This was such as to engage a number of the indicia of a “leading” role in the offending.  The combination of quantity and role meant that the starting point was within range.

5. We agree with Mr Sinclair’s submissions concerning the significance of Mr Roberts’ role.  The facts justify the conclusion that he was in a leading role and there was a significant amount of methamphetamine produced.  He pleaded guilty to the charge of possession of methamphetamine for supply and apparently had control of the $40,000 cash likely to have been produced by dealing in methamphetamine. 

6. We have no doubt that the starting point adopted by the Judge was within range applying Fatu.  But the task now is to apply Zhang.  In terms of band four in Zhang, we think the starting point was too high.  We consider it appropriate to adjust it down to 12 years to better reflect the fact that the amount of methamphetamine produced was approximately half the maximum contemplated for band four offending, but otherwise to recognise Mr Roberts’ leading role.

7. Mr Tait accepted that, regardless of the starting point, an uplift of one year for the firearms offending was justified.  He also accepted that the 20 per cent discount for the guilty plea was adequate.   However, he argued that the combined allowance of two years to reflect time spent on EM bail and efforts made towards rehabilitation was insufficient.  Arguably, the discount given for these considerations should have been higher, especially having regard to the steps Mr Roberts had taken towards rehabilitation.

8. Mr Roberts was initially remanded in custody between 11 July and 19 October 2016 when he was released on EM bail.  He remained on EM bail, with a 24-hour curfew until February 2018.  He was then admitted into the Higher Ground Drug Rehabilitation Trust residential programme from which he graduated in June 2018.  During that period, EM bail was temporarily suspended but he was subject to a night time curfew between 11 pm and 6 am to facilitate his participation in the programme.  At that point he was admitted into Calgary House, a facility operated by Higher Ground, until he was sentenced on 17 August 2018.  During the latter period he was again subject to EM bail, and on a 24-hour curfew with exceptions to facilitate his attendance at further rehabilitative programmes.  Consequently, a significant period (about 18 months) was spent remanded on EM bail.  There is no suggestion of any compliance issues during the period of the remand.

9. While remanded in custody, Mr Roberts completed programmes provided by the Community Alcohol and Drug Service and the Department of Corrections.  He was then admitted into the Salvation Army Bridge Programme on 18 December 2017, successfully completing the programme prior to his admission to the Higher Ground programme.  Mr Tait helpfully provided certificates evidencing the successful completion of various programmes provided by the organisations to which we have referred.  The pre-sentence report recognised that Mr Roberts had taken these various steps, noting that an employee of Higher Ground had referred to the possibility of him being appointed as a “house host” at their Calgary street residence if not sentenced to imprisonment and stated that he had done well in their main programme.  The report also referred to Mr Roberts as “extremely remorseful”.  So Mr Roberts has taken apparently genuine steps towards rehabilitation.

10. The Judge accepted that he had made “considerable efforts at rehabilitation” as well as being on EM bail “for some time”, but then observed that “to a certain extent those two are consistent with each other” because it was during this period that the rehabilitative steps had been taken.  The Judge then referred to the need to avoid “double counting”.[13] 

    [13]Sentencing judgment, above n 1, at [34].

1. Although he treated both rehabilitation and time spent on EM bail as linked, and gave an overall reduction intended to reflect both, he did not differentiate between them and the two are distinct.  Discrete recognition is desirable if only to demonstrate transparently the way in which the sentence has been constructed and to ensure relevant considerations have been taken into account.  There is, of course, no necessary connection between bail and rehabilitation.  Time spent on EM bail is recognised because of its significant limitations on freedom of movement.  Positive rehabilitative steps can be recognised as reducing the need for personal deterrence in sentencing, and offering scope for the application of the rehabilitative purpose referred to in s 8(i) of the Sentencing Act 2002.[14] 

   [14]Royal v R, above n 4, at [25].

2. Time spent on EM bail is also a mandatory consideration under s 9(2)(h) of the Sentencing Act.  An allowance of up to 50 per cent of the time spent on EM bail is not uncommon.[15]  In this case that would equate to nine months. 

   [15]See Parata v R [2017] NZCA 48 at [12] and [15]; Wharrie v R [2019] NZHC 633 at [28]; A (CA90/2017) v R [2017] NZCA 278 at [89]–[91]; Huata v R [2017] NZHC 2833 at [30]; and R (CA528/2016) v R [2017] NZCA 210 at [14].

3. It is in this context that the Judge’s combined allowance for rehabilitative steps for time spent on EM bail needs to be assessed.  Mr Tait submitted that we should regard Mr Roberts as having diminished culpability because of his addiction, but we do not consider the available evidence establishes his addiction was such as to impair his ability to make a rational choice with respect to his offending.[16]  And the quantity of methamphetamine produced is obviously far more than was necessary to provide for his personal needs.  In this case, rather, an allowance is appropriate to reflect the substantial steps that Mr Roberts has subsequently taken to deal with his addiction.  Seen in this light, we think it would have been appropriate to allow a discount of 15 months for this consideration, in addition to the allowance for the time spent on EM bail.  The combined allowance of 24 months given by the Judge does not therefore seem inappropriate.

   [16]Zhang v R, above n 2, at [138] and [147]. See for example Royal v R, above n 4, at [24].

4. In the result we consider the appeal should be allowed, and the concurrent sentences of 10 years six months’ imprisonment for the manufacture of methamphetamine and possession of methamphetamine for supply replaced by sentences of eight years and 10 months in each case.  This is based on the adjusted starting point and preserves the 20 per cent discount for the guilty plea and the weighting of the aggravating and mitigating personal circumstances applied by the Judge.

Mr Watene-Toi

1. The principal point made by Mr McKean on behalf of Mr Watene‑Toi was that the Judge erred by equating the culpability of Mr Watene‑Toi with Mr Roberts.  Like Mr Tait, Mr McKean submitted that the Judge’s starting point of 14 years’ imprisonment was too high given the quantity of methamphetamine involved.  We accept that this is so under Zhang, for the reasons already discussed and if Mr Watene‑Toi and Mr Roberts were to be regarded as equally culpable a starting point of 12 years would be appropriate.

2. Mr McKean however submitted that Mr Watene‑Toi should be regarded as less culpable.  He emphasised in particular the Judge’s apparent explanation of the not guilty verdict in respect of the possession for supply charge as being based on a conclusion that methamphetamine had not been possessed by Mr Watene‑Toi (or Mr Hall) for the purpose of supplying it.  Mr McKean pointed out that the quantity of methamphetamine found was such that it was deemed to be possessed for supply if the jury found Mr Watene‑Toi possessed it.  Consequently, the defence run was that Mr Watene‑Toi was not in possession of the methamphetamine, lacking the necessary knowledge and control.  That being the case, the Judge should have regarded absence of possession as a clear indication of a reduced role in the offending.  He submitted it was not logical to regard the appellant as having a leading role when he was not involved in possession of any of the end product.

3. To the extent that the Judge was relying on his own view of the facts, Mr McKean submitted the conclusion that Mr Watene‑Toi was a “prime mover” together with Mr Roberts was not justified.  He emphasised that Mr Roberts had pleaded guilty to all the charges, that he possessed the weapons and it was the bedroom used by him that contained $40,000 in cash.  By contrast, Mr Watene‑Toi was not shown to have occupied any of the bedrooms in the house, and he was acquitted on the firearms charges.  Mr McKean asserted that the jury must have accepted Mr Watene‑Toi’s statement to a police officer that he had been only a driver, doing what he was told.  He argued there was no other way to rationalise the jury’s verdicts.  Mr Watene‑Toi had simply transported the equipment for manufacture of the methamphetamine and had little or no financial gain from it. 

4. Mr McKean claimed that Mr Watene‑Toi’s role was subsidiary, and analogous to that of Ms Phillips, one of the appellants whose appeal was determined in Zhang.[17]  This Court accepted that Ms Phillips had a far lesser role than her co‑defendant in activities involving the supply of at least six kilograms of methamphetamine.  The sentencing Judge adopted a starting point of five years’ imprisonment for the two leading supply charges.  This Court upheld the starting point, even though having regard to the quantity of methamphetamine supplied, a starting point of at least 10 years might have been justified.  The lower starting point reflected the Judge’s appreciation of the “very limited role” that Ms Phillips had played.[18]

   [17]Zhang v R, above n 2, at [204]–[228].

   [18]At [218].

5. Mr McKean submitted that a starting point of four years’ imprisonment was appropriate to reflect Mr Watene-Toi’s limited role.

6. He properly acknowledged that the Judge made a deduction of 10 months from the starting point on the basis that Mr Watene‑Toi had spent 18 months on EM bail.  However, Mr Watene‑Toi was the only defendant who was remanded in custody on arrest and was refused bail for the entire period of remand.  That will of course be taken into account in due course under s 90(1) of the Parole Act 2002.  It is not a deduction that the Judge should have made at sentencing.

7. We do not accept Mr McKean’s submission that the Judge was wrong to conclude that Mr Watene‑Toi had a significant role in the manufacturing of the methamphetamine.  We are satisfied on the evidence that Mr Watene‑Toi’s role was significant.  Not only did he assist in bringing equipment to the site, but he was present during the actual manufacturing operation itself.  He can be assumed to have been well aware of what was going on:  apart from anything else, he had a previous conviction for manufacturing methamphetamine, to which the Judge referred.  Although that related to offending in 2002 the Judge was entitled to infer that he would have been well aware of what was going on.  His reaction to the arrival of the police at the scene was further evidence of that.  In terms of the roles identified in Zhang, Mr Watene‑Toi was on his own account involved for the purposes of paying off a debt and expected to profit from his involvement to that extent.  He must have understood the scale of the operation taking place and we are satisfied his conduct fell squarely within the “significant” category.

8. We do not consider the comparison with the appellant Phillips in Zhang is sound.  Mr Watene‑Toi’s role here was comparatively far more significant.  Mr McKean’s suggestion of a starting point of four years would not be justified on the facts.  It would take Mr Watene‑Toi below the entry point for band three in Zhang notwithstanding that over one kilogram of methamphetamine was manufactured.  We accept Mr Sinclair’s submission that this would be contrary to the apparent intent of Zhang, and inappropriate given the quantity involved and Mr Watene‑Toi’s role.[19]

   [19]At [123].

9. We consider an appropriate starting point which reflected both Mr Watene‑Toi’s role and the amount of methamphetamine manufactured in accordance with Zhang would be nine years’ imprisonment.

10. The Judge did not consider that there were any aggravating circumstances personal to Mr Watene-Toi justifying an uplift from the starting point.  The only mitigating circumstance to which he referred was the time spent on EM bail and as we have already noted Mr Watene‑Toi was not entitled to any reduction in that respect.  We are satisfied that the starting point we have identified of nine years will be an appropriate final sentence which also takes into account the overall offending, including the possession of equipment for which the Judge imposed a concurrent sentence of two years’ imprisonment.

11. For these reasons, we will allow Mr Watene‑Toi’s appeal, quash the sentence of 12 years and six months’ imprisonment imposed in respect of manufacturing methamphetamine and substitute a sentence of nine years’ imprisonment.

Mr Hall

1. For Mr Hall, Mr Ryan first submitted that in setting the starting point of 10 years the Judge gave insufficient weight to the appellant’s limited role.  Second, Mr Ryan claimed that the Judge erred by not giving the appellant credit for personal mitigating features, with the exception of time spent on EM bail. 

2. In relation to the first ground, Mr Ryan submitted that the starting point of 10 years’ imprisonment was manifestly excessive and did not properly reflect Mr Hall’s limited role.  He argued that the Judge placed too much emphasis on the scale of the operation when setting the starting point.  This had resulted in a failure to acknowledge that Mr Hall’s role was limited to arranging the booking for the holiday home used to set up the clandestine methamphetamine laboratory.  While apprehended on the day the police entered the property, Mr Hall and Ms Gibbons‑Hurinui were apprehended as they travelled to the property and were not present during the manufacturing process.  Nor was Mr Hall involved in the purchase of equipment or ingredients required for manufacture.  He had not driven other persons to the address and he was not present there when the police arrived.  His fingerprints were not found on any of the equipment used in the manufacture.  Mr Ryan claimed that the manufacture would have taken place regardless of Mr Hall’s presence.  He also pointed out that no cash had been found in the bedroom that Mr Hall occupied, and Mr Hall was not found guilty of possession of any of the methamphetamine.  There was no evidence that Mr Hall had shared in the profits of the manufacture.  Mr Ryan submitted that a starting point at the bottom of band three, of eight years’ imprisonment, would appropriately reflect Mr Hall’s culpability.

3. In relation to the second ground of appeal, Mr Ryan submitted that the evidence disclosed strong indications of Mr Hall’s addiction to methamphetamine.  He referred to text messages which he said contained evidence of Mr Hall’s low level dealing to support his addiction.  He referred initially to text messages asking “have you got a vessel?”, “have you got any?”, and “can I come around?”.  Mr Ryan filed supplementary submissions to which were attached 16 pages of text messages which he submitted were further evidence of Mr Hall’s addiction.  Reliance was also placed on an unsworn statement by Mr Eric Hall, the appellant’s father, in which Mr Hall senior confirmed that the appellant had got heavily involved in drugs living in New Zealand, overcome by loneliness and despair following the break-up of his marriage.

4. Mr Ryan also submitted that Mr Hall should have received a discount by virtue of being an Australian citizen, imprisoned away family support in a foreign country.  He submitted that although his family were only a four-hour flight away, the cost of travel for family members would be prohibitive.  Mr Hall has been in custody since July 2016 and has not had family visits during that time.  In his supplementary submissions Mr Ryan also raised the issue of a discount for previous good character, based on Mr Hall not having previous convictions, a matter not mentioned by the Judge.

5. In combination, Mr Ryan submitted that a discount of 20 per cent should have been allowed for mitigating circumstances personal to the appellant.

6. For the Crown, Mr Sinclair noted that Mr Hall had played a significant role by booking the house where the manufacturing took place and staying at the property being, as the Judge found, “ready, willing and able to assist” as the operation proceeded.[20]  However, the Judge had correctly concluded that a starting point of 14 years would overstate his involvement.  Mr Sinclair argued that Mr Hall’s role would fit within points one and five of the indicia of a “significant” role in Zhang.  Organising the venue for the production was a managerial role and although he denied having any awareness or understanding of the scale of the operation, that claim was not credible.  While he was not present when police searched the house, he was found nearby, and was clearly on his way there.  There was also evidence that he had been staying in the house in one of the bedrooms.  He had been convicted not only of manufacturing methamphetamine, but possession of equipment with intent to manufacture it and possession of a firearm and ammunition.

   [20]Sentencing judgment, above n 1, at [28].

7. As to the mitigating circumstances relied on by Mr Hall, Mr Sinclair submitted that the text messages relied on were insufficient to establish his offending was driven by addiction and he noted that no mention of addiction had been made in the pre‑sentence report.  The statement made by the appellant’s father did not advance relevant matters much beyond self‑reported addiction.  This was insufficient to justify a reduction in sentence, in accordance with the approach articulated in Zhang.[21]

   [21]Zhang v R, above n 2, at [148].

8. As to Mr Hall’s status as a foreign national, Mr Sinclair pointed out that his family were not far away, that he had been supported at legal appointments, and faced no language barriers.  He noted that Mr Hall had begun to offend after being in New Zealand for only six months, submitting that was not long enough to establish good character for the purpose of a discount.  Overall, it was submitted that there should be no reduction in sentence as a consequence of the various considerations relied on.

9. The Judge recognised that Mr Hall, despite having a significant role, was less culpable than either Mr Roberts or Mr Watene‑Toi.  The starting point adopted in his case was 10 years, as opposed to the 14 years fixed for the other two.  Given the 12‑year starting point that we have considered appropriate for Mr Roberts, an equivalent reduction for Mr Hall would suggest a starting point of about eight years and six months. 

10. Mr Ryan did not criticise the Judge’s approach of applying an uplift of one year in respect of the firearms charges, but then reducing that because of the time spent on EM bail.  Nor was there any criticism of the concurrent sentences imposed for the firearms and ammunitions charges.

11. We are not persuaded that there should be any reduction for the personal mitigating factors relied on by Mr Ryan.  As with Mr Roberts, we do not consider the evidence establishes that Mr Roberts had diminished culpability because of his addiction.[22]  As Mr Sinclair pointed out, the pre‑sentence report contains no narrative that would justify a conclusion that addiction was the reason for Mr Hall’s offending and while we accept the text messages establish he was a user, they go no further.

    [22]At [138] and [147].  See for example Royal v R, above n 4, at [24].

12. An Australian citizen in prison in New Zealand is in our view a far less worthy candidate for a reduction in the sentence that would otherwise be appropriate because of the difficulties of imprisonment in a foreign country, away from family support networks and having limited English.[23]  The family are not as far away as  in  other cases where a discount for this factor has been applied, and Mr Hall faces no language difficulty.  His circumstances may be contrasted with cases such as de Macedo v R where an allowance was made for an offender with a low level of English and isolated from his support network in Brazil,[24] and the case of Mr Yip, dealt with in Zhang.[25] In this case, there is also some evidence of family support.  The pre‑sentence report referred to Mr Hall’s parents owning a property in Tokoroa which was referred to as a possible location where a sentence of home detention could be served.  We were advised at the hearing of the appeal that that property has since been sold.  However, we note that Mr Ryan conceded that family support had been available at “legal appointments” during the time that Mr Hall has spent in custody.  Mr Eric Hall’s statement is apparently that of a responsible and caring father, who has some insight into the cause of his son’s problems and, in our assessment, is likely to support him through the inevitable term of imprisonment which his conduct merits.  Overall, we are not satisfied that the element of hardship which would be necessary to justify a reduction for this consideration has been made out.

    [23]At [163].

    [24]      de Macedo v R [2020] NZCA 132 at [26]

    [25]Zhang, above n 2, at [301].

13. Nor do we consider the Judge erred by not giving a reduction for good character.  This issue was not mentioned in the sentencing remarks, and it is unclear the issue was advanced before the Judge.  In any event, while it appears Mr Hall has no previous convictions, as Mr Sinclair pointed out he began to offend soon after he arrived in New Zealand.  He was it appears a regular user of methamphetamine and his father’s letter indicates he was using drugs in Australia.  No considerations apart from the lack of convictions were advanced in support of his good character and we are not persuaded a reduction is appropriate.

14. For these reasons, we propose to allow the appeal by quashing the sentence of 10 years’ imprisonment imposed on the charge of manufacturing methamphetamine and substituting instead a sentence of eight years and six months.

Summary

1. The appeals against sentence are allowed.

2. In each case, the sentences imposed on the appellants for the manufacture of methamphetamine are set aside.  The sentence imposed on Mr Roberts for the possession of methamphetamine for supply is also set aside. 

3. In the case of Mr Roberts, concurrent sentences of eight years and 10 months’ imprisonment are substituted.  In the case of Mr Watene‑Toi, a sentence of nine years’ imprisonment is substituted.  In the case of Mr Hall, a sentence of eight years and six months’ imprisonment is substituted.

Solicitors:
WRMK Lawyers, Whangarei for Appellant Watene-Toi
Crown Law Office, Wellington for Respondent