Hastie-Sonnenberg v The King
[2024] NZHC 551
•14 March 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-412-00093 CRI-2023-412-00094 CRI-2023-412-00095 CRI-2023-412-00096 CRI-2023-412-00097
CRI-2023-412-00098 [2024] NZHC 551
BETWEEN NATHAN GEORGE HASTIE- SONNENBERG
AppellantAND
THE KING
Respondent
Hearing: 19 February 2024 Appearances:
A M S Williams for Appellant R D Smith for Respondent
Judgment:
14 March 2024
JUDGMENT OF PRESTON J
(Appeal against sentence)
This judgment was delivered by me on 14 March 2024 at pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
HASTIE-SONNENBERG v R [2024] NZHC 551 [14 March 2024]
Introduction
[1] Having accepted a sentence indication on the basis of a starting point of four years imprisonment before further adjustments, Nathan Hastie-Sonnenberg was sentenced to two years 11 months’ imprisonment on 10 charges:1
(a)possession of methamphetamine for supply;2
(b)possession of an offensive weapon;3
(c)receiving stolen property (over $1,000) x3;4
(d)receiving stolen property (under $500) x3;5
(e)possession of a knife in a public place;6 and
(f)unlawfully in an enclosed yard.7
[2] Mr Hastie-Sonnenberg now appeals on the basis that the sentence imposed was manifestly excessive and “inappropriate”.
Factual background
[3] The facts were summarised by Judge Turner in the sentencing indication. I adopt them.
Receiving the caravan
[4] In early September 2020, a caravan and trailer were stolen from a Christchurch address. In late July 2021, the caravan was advertised for sale on Facebook by a female associate of Mr Hastie-Sonnenberg. When prospective purchasers made
1 R v Hastie-Sonnenberg [2023] NZHC 24362.
2 Misuse of Drugs Act 1975, s 6(1)(f) and (2); maximum penalty life imprisonment.
3 Crimes Act 1961, s 202A(4)(b); maximum penalty three years’ imprisonment.
4 Sections 246 and 247(a); maximum penalty seven years’ imprisonment.
5 Sections 246 and 247(c); maximum penalty three months’ imprisonment.
6 Section 202A(4)(a); maximum penalty three years’ imprisonment.
7 Summary Offences Act 1981, s 29; maximum penalty three months’ imprisonment or $2000 fine.
contact about the caravan they spoke directly to Mr Hastie-Sonnenberg and paid the agreed upon sale price of $4,500 into a bank account as directed by him. However, the caravan was not delivered as the purchasers were later advised by the caravan’s lawful owner that it had been stolen. Mr Hastie-Sonnenberg said he would repay the money, but he has failed to do so.
Unlawfully in an enclosed yard
[5] On 9 December 2021, Mr Hastie-Sonnenberg entered an address in Woodend, Christchurch, by removing a large, immobilised tractor from a driveway. Once inside, he hooked up his vehicle with a rented trailer attached to a disused forklift and attempted to tow it away. He was unsuccessful in removing the forklift and left the premises, leaving the trailer at the scene.
Possession of a knife in a public place
[6] At about 11:30 pm on 9 July 2022, Mr Hastie-Sonnenberg was at a Christchurch service station. Police arrested him on an unrelated matter and upon searching he was found in possession of a medium-sized hunting knife concealed in his belt liner. He told police the knife was for his protection.
Possession of methamphetamine for supply, possession of an offensive weapon and receiving charges
[7] In the early afternoon on 28 November 2022, police stopped Mr Hastie- Sonnenberg’s vehicle in Dunedin and arrested him on an outstanding warrant for his arrest. Police observed a large silver-coloured knife with a knuckle duster type handle in the footwell. Police searched the vehicle and found a Stanley knife between the driver’s seat and centre console and a knuckle duster in the rear of the vehicle.
[8] While searching, police located a large paper bag containing a Tommy Hilfiger bag. Mr Hastie-Sonnenberg had previously been observed wearing the bag. The Tommy Hilfiger bag contained brown-coloured crystals and a large bundle of cash. Upon further search of the vehicle, a clear plastic snap lock bag containing 3.3 g of brown-coloured methamphetamine, two sets of digital scales and 100 clear snap lock
bags containing 48.31 g of methamphetamine were located.8 The drugs found were sitting on top of $3,470 cash in denominations of $20 and $50 notes.
[9] In the backseat of the car, a briefcase style lockbox containing $25,950 cash (again, in $20 and $50 notes) and two snap lock bags containing 55.8 g of methamphetamine was located.
[10] Police estimate the methamphetamine located was the equivalent of 5,350 doses and had a street value of about $37,450.
[11] Also located in the vehicle was a key for a Holden Barina vehicle that had been stolen in a residential burglary in November 2022, and a CardSmart petrol card for a Subaru vehicle that had been stolen in November 2022. As well, a driver’s licence in the name of a 60-year-old female, which had been taken in a burglary in Dunedin in mid-January 2022, was found.
[12] Police obtained a search warrant to search Mr Hastie-Sonnenberg’s home. Two mountain bikes, stolen in early November 2022 from addresses in Dunedin, were located.
Sentence indication
[13]On 20 July 2023, Judge Turner provided a sentencing indication.
Lead offence
[14] Judge Turner considered that, of Mr Hastie-Sonnenberg’s numerous convictions, his three convictions for possession of an offensive weapon in 2021 (in respect of which he was sentenced to community work and intensive supervision), multiple convictions for theft by shoplifting, possession of methamphetamine, and two convictions for unlawfully carrying or possessing firearms were particularly relevant to the charges he faced.
8 The Judge’s reference to 100 bags appears an inadvertent error; the summary of facts records this was 10 snap lock bags of white crystal methamphetamine, weighing in total 48.31 g.
[15] Applying Zhang v R as modified by Berkland v R, the Judge acknowledged the offending fell within band two, where starting points of between two and nine years’ imprisonment are warranted.9 The Judge considered Mr Hastie-Sonnenberg was a street level dealer supplying significant quantities of methamphetamine (107 g were found in his possession along with two sets of electronic scales, a tick list, and more than $29,000 cash). The Judge also noted the methamphetamine pipes and new syringes located in the car signalled drug usage. The Judge considered there was a clear commercial element to the offending.
[16] Considering Mr Hastie-Sonnenberg’s role, Judge Turner noted there was no evidence to suggest Mr Hastie-Sonnenberg was performing a limited function under direction or that he was pressured or coerced to sell drugs, nor that his involvement arose through naivety or exploitation. The evidence also did not establish he was motivated solely or primarily by his own addiction or that he had little or no actual financial gain. The Judge further acknowledged there was no evidence to suggest he had a management function in the operation or to situate him within the overall chain of supply. The Judge inferred the expected financial advantage to the appellant was commensurate with his role within the operation and the risk he assumed.
[17] Having regard to the quantity of methamphetamine involved, the circumstances of the offending, and the similar case of Scott v R, Judge Turner adopted a starting point of four years’ imprisonment for the lead charge.10 On a totality basis, the Judge indicated a 12-month uplift for the remaining charges, resulting in a total starting point of five years’ imprisonment.
[18] The Judge indicated a 10 per cent uplift for deterrence purposes to recognise that Mr Hastie-Sonnenberg was on bail at the time of the methamphetamine offending, had failed to answer to his bail resulting in the issuing of a warrant for his arrest, and had previous convictions for possession of weapons and an earlier conviction for receiving.
9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Berkland v R [2022] NZSC 143, [2022] 1
NZLR 509.
10 Scott v R [2022] NZHC 2274.
[19] The Judge indicated a 20 per cent discount for a guilty plea and noted further credits for background or addiction matters may also be available at sentencing upon receipt of additional information.
District Court decision
[20] On 3 November 2023, Mr Hastie-Sonnenberg appeared for sentence. In the interim, his co-offender Ms Pratt had been sentenced by another Judge, receiving a starting point of three years’ imprisonment.
[21] Judge Turner considered the same starting point he had indicated, of four years’ imprisonment, should be adopted despite this. The Judge assessed that Mr Hastie- Sonnenberg “was the principal, the leader in this offending and his role straddled the lesser and significant bands [in Zhang]”.11 In doing so, the Judge noted the sentencing remarks of Judge Phillips, who considered Ms Pratt a secondary offender because she was a passenger in the car Mr Hastie-Sonnenberg was driving where the drugs were located, she did not have the contacts nor level of knowledge Mr Hastie-Sonnenberg possessed, and her admission to being in possession of the methamphetamine was likely borne out of her feelings toward Mr Hastie-Sonnenberg. The Judge further noted the Crown had accepted Ms Pratt played a lesser role.
[22] Judge Turner agreed with Judge Phillips’ assessment, finding Mr Hastie- Sonnenberg sourced significant quantities of methamphetamine and had a market for sales or supply of those amounts, and consequently, that offending cannot be explained by his drug addiction alone. The Judge noted counsel had submitted a starting point at the sentencing indication of between three and a half and four years’ imprisonment. Overall, the Judge considered the difference in starting points was justified as it reflected Mr Hastie-Sonnenberg and his co-defendant’s respective roles.
[23] The Judge then turned to reconsider the uplift for prior convictions he had indicated previously. Defence counsel submitted that material before the Court indicated the offending was driven by addiction which Mr Hastie-Sonnenberg had by then addressed, and therefore no uplift was required due to the lesser requirement for
11 R v Hastie-Sonnenberg, above n 1, at [12].
deterrence. At the sentence indication, defence counsel had submitted any uplift should not exceed three months’ imprisonment.
[24] The Judge considered an uplift of 10 per cent was justified for deterrence purposes because:
(a)Mr Hastie-Sonnenberg had been non-compliant with a sentence of community work and therapeutic interventions offered, including those for substance abuse issues, shortly before the current offending occurred;
(b)Mr Hastie-Sonnenberg was on bail at the time of the methamphetamine offending and had failed to answer it and, when arrested for that offending, there was a warrant for his arrest; and
(c)Mr Hastie-Sonnenberg had relevant convictions for possession of weapons and a conviction for receiving. The Judge noted in setting the uplift that no consideration was given to previous convictions for possession of methamphetamine simpliciter.
[25] The Judge gave a 15 per cent discount, as sought, for background and addiction matters. The Judge first noted the matters identified in the s 27 report as potentially causative of the offending were self-reported, with verification from Mr Hastie- Sonnenberg’s mother. Due to lack of verification or causal nexus between a factor and the offending, the Judge did not take into account Mr Hastie-Sonnenberg’s alleged experience of childhood sexual abuse, or his early exit from mainstream schooling.
[26]The factors the Judge did take into account were:
(a)Exposure to alcohol abuse and family harm by Mr Hastie-Sonnenberg’s stepfather: his biological father was not in his life for the first five years, however, his relationship from that time was not recorded as positive, also involving drug use and drug dealing. This early exposure
the Judge considered led to Mr Hastie-Sonnenberg viewing substance abuse and violence to be normal.
(b)Alcohol and drug addiction: the normalisation of drug and alcohol use in Mr Hastie-Sonnenberg’s family unsurprisingly led to experimentation with drugs and later developed into an addiction. To this point, the Judge noted there were clear elements of commerciality in the drug offending and so the addiction could not fully explain that offending.
[27] The Judge gave a 10 per cent discount for Mr Hastie-Sonnenberg’s rehabilitative efforts, noting the participation of Mr Collinge from the Red Door Rehabilitation facility during the hearing and written reports from the facility, as well as letters from Mr Hastie-Sonnenberg’s mother and previous partner (mother of his two children) indicating they had seen a real change in him.
[28] The Judge allowed a discount for the time spent on EM bail, 162 days, of 81 days (50 per cent).
[29] To summarise, the Judge adopted a starting point of four years’ imprisonment for the methamphetamine offending and a one-year uplift for the remaining charges. He applied a 10 per cent uplift for previous convictions and gave discounts totalling 45 per cent, netting out at 35 per cent and landing at three years three months’ imprisonment. He then applied a further discount for time spent on EM bail of three and a half months. The end sentence was two years and 11 months’ imprisonment.
Approach on appeal
[30] Appeals against sentence are available as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 A court will not intervene if the ultimate sentence imposed is within the
12 Criminal Procedure Act 2011, s 250(2) and (3).
available range and is one that can properly be justified on the application of relevant sentencing principles.13 When assessing whether the sentence under appeal is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.14
Discussion
[31] Mr Williams submits the sentence imposed was manifestly excessive and inappropriate in the appellant’s circumstances.
[32] He challenges the starting point for methamphetamine offending, the uplift for previous convictions, and the discount for rehabilitative efforts, contending:
(a)a starting point of three years’ imprisonment should be adopted, as Mr Hastie-Sonnenberg and his co-defendant had the same role in the methamphetamine offending, having regard to parity;15
(b)no uplift for previous convictions was warranted; and
(c)15 (not 10) percent credit should have been afforded for rehabilitative efforts.
[33] These adjustments would render an end-sentence of one year eight months, which the appellant argues should be commuted to home detention, to be completed at the Red Door recovery facility. It is not in dispute that Mr Hastie-Sonnenberg had, while on electronically monitored bail, undertaken significant rehabilitative steps on that programme.
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].
14 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
15 Sentencing Act 2002, s 8(e).
Starting point
[34]No error is disclosed in relation to the starting point.
[35] It is a fundamental principle of sentencing, and accords with natural justice, that offending by joint offenders with the same culpability should attract similar sentences. McMullin J in R v Lawson held:16
[A] marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear that in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly.
[36] However, just as markedly different sentences for defendants sharing equal culpability may damage public confidence, the converse also applies: imposing the same sentence (or starting point) on co-defendants with differing culpability will also erode the public’s confidence.
[37] Police located 107.49 g of methamphetamine in total. As Judge Turner identified, this quantum places the appellant in band two in respect of Zhang and Berkland with a starting point range of two to nine years’ imprisonment.
[38] The second stage in fixing the starting point for methamphetamine offending relates to role. The Judge assessed Mr Hastie-Sonnenberg’s participation as between the “lesser” and “significant” roles, both at the sentence indication and at sentencing. He received a starting point of four years (from a range of three and a half to four years). The co-offender received a starting point of three years (from a range of three to three and a half years), as she was found to be in the “lesser category”.
[39] I agree with the District Court Judge's assessment that Mr Hastie-Sonnenberg played a more significant role in the methamphetamine offending than his co- defendant. So much is clear from the summary of facts.
16 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
[40] Mr Hastie-Sonnenberg had previously been observed wearing the Tommy Hilfiger bag located in the search of the vehicle. In that bag police found over 50 g of methamphetamine. This included 3.3g of brown-coloured methamphetamine made up in three smaller snap lock bags and 10 other bags with various amounts of white crystal methamphetamine, totalling 48.31 grams. There were also a set of digital scales and $3,470 cash, largely in $20 and $50 notes. It was Mr Hastie-Sonnenberg’s vehicle and he was driving. The remainder of the methamphetamine and other items found throughout his vehicle included the “tick list” notebook, another set of scales and the lockbox containing nearly $26,000 in cash, again predominantly $20 and $50 notes. The key to the lockbox was in a separate toiletry bag under the driver’s seat.
[41] The co-defendants were in a relationship but not believed to be residing at the same address. The Crown did not dispute the categorisation of the co-defendant as having played a lesser role. At her sentencing, her counsel submitted that she did not know who supplied the methamphetamine or organised payments of the drugs, as she assumed the appellant “had that under control”. This too was not disputed by the Crown. For his part, Mr Hastie-Sonnenberg, although he claimed to be acting under some duress and not for his own gain, appeared to acknowledge sourcing the methamphetamine in the pre-sentence report.
[42] Standing back, while Mr Hastie-Sonnenberg’s culpability is not significantly higher than his co-offender’s, on the facts he pleaded to he played a greater role.17 This notwithstanding that there is no evidence of pressure or coercion upon Ms Pratt, which Judge Phillips’ in his sentencing remarks considered was the case.
[43] The difference in culpability justified the different starting point. Accordingly, Mr Hastie-Sonnenberg’s case is distinguishable from Glover v R.18 In that case the two-co-defendants committed a series of burglaries but there was no evidence of their respective roles and therefore no basis upon which to differentiate starting points.
17 At first glance the difference between the respective starting points adopted appears greater as the co-offender received a starting point at the lower end of the range for her culpability, whereas Mr Hastie-Sonnenberg’s starting point was not at the lower end of the range indicated for his culpability.
18 Glover v R [2011] NZCA 249.
[44] On the basis of the quantum of methamphetamine and the appellant’s lesser- significant role, a four-year starting point was within the available range.19 Counsel accepted this range at the sentence indication. Further, Mr Hastie-Sonnenberg accepted not only the range but the indication of the actual starting point the Judge intended to apply, before entering his pleas.
[45]There is no basis to disturb the starting point of four years’ imprisonment.
Uplift
[46] Mr Williams submits that given the additional material before the Court at sentencing, which was not available at the sentencing indication, the 10 per cent uplift was inappropriate. He says that the offending was driven by the appellant’s addiction and there is no need for deterrence, in those circumstances. As well, he submits the uplift was disproportionate to the sentences imposed for the previous offending, which community work and intensive supervision.
[47] Dunningham J in Reedy v Police outlined the reasons justifying an uplift are previous convictions that bear on character and culpability, previous convictions that indicate a predilection to offend in a specific way, or the need to protect society through a deterrent sentence.20 The focus here is on deterrence.
[48] The Judge did not disregard the additional information available at sentencing. However, he considered an uplift remained necessary for deterrence purposes, for multiple reasons. First, Mr Hastie-Sonnenberg was subject to a sentence of intensive supervision at the time of the offending on numerous charges similar to those before the Court. Due to non-compliance with the original sentence including special conditions to address his substance abuse issues, Corrections had applied to cancel and substitute it. He appeared on that application just 10 days prior to this offending.
19 See, Scott v R, above n 10.
20 Reedy v Police [2015] NZHC 1069 at [19].
[49] Secondly, the appellant was on bail at the time of the methamphetamine offending and had failed to answer bail. There was a warrant for his arrest. Finally, the Judge considered Mr Hastie-Sonnenberg’s relevant convictions, for possession of weapons (there are five) including two for firearms, and an earlier conviction for receiving.
[50]All of the matters considered by the Judge warranted an uplift.
[51] A disregard for the courts’ sentences always warrants concern but is of particular relevance here as the sentence’s therapeutic focus responded to the addiction drivers of Mr Hastie-Sonnenberg’s offending.
[52] It is clear the appellant had addiction problems at the time of the offending, although as I have found deterrence remained relevant as his addiction did not entirely explain the level of commerciality here. He has now taken some important steps to address this.
[53] For similar reasons, the nexus between Mr Hastie-Sonnenberg’s addiction and his offending does not eliminate the relevance of deterrence in relation to the previous weapons and receiving charges. Plainly these justify an uplift given the nature and scale of his methamphetamine offending and in particular the election to arm himself again with offensive weapons in doing so. The uplift in relation to this aspect was also justified to reflect public risk, in addition to deterrence.21
[54] The issue of proportionality is less straightforward. The uplift amounted to six months’ imprisonment, upon the adjusted starting point of five years. Mr Williams says this is disproportionate given that Mr Hastie-Sonnenberg only received sentences of community work and intensive supervision in respect of his five previous convictions for possession of an offensive weapon/firearm (that sentence ultimately being cancelled by the District Court Judge).22 There is also one previous conviction
21 Orchard v R [2019] NZCA 529, [2020] NZLR 37 at [39] and [41].
22 The Judge’s notes record the original sentence was one of four months’ community detention and 18 months intensive supervision, but the community detention was subsequently cancelled and replaced with community work, with which Mr Hastie-Sonnenberg was non-compliant, completing only half an hour of the 130 hours imposed: at [49].
for receiving from 2 September 2022. An uplift for prior offending must be proportionate to the sentence imposed for previous offending.23 It is unlikely to be proportionate if it exceeds the prior sentence, including where that sentence was less than a sentence of imprisonment.24 However, an uplift may also be imposed in respect of offending while on bail or subject to sentence, as occurred here in both respects. As I have found, while the appellant’s addiction reduced the relevance of deterrence, it did not eliminate it altogether. Nonetheless, I consider the uplift was disproportionate to some extent given the prior convictions had attracted a community-based sentence.
[55] In my view, the uplift of 10 per cent (six months) should be reduced to five per cent (three months). This strikes the balance between the existing need for deterrence as well as accounting for the appellant’s addiction.
[56] I reduce the uplift for previous convictions to five per cent for reasons of proportionality.
Rehabilitative discount
[57] Mr Williams submits that Mr Hastie-Sonnenberg has taken significant steps between the offending and the date of sentencing which requires a meaningful recognition of these rehabilitative efforts. 25 Counsel says this warranted a 15 per cent discount, not the 10 per cent the Judge afforded.
[58] Mr Hastie-Sonnenberg’s time at the Red Door facility has indeed been successful — he spent 70 days at the facility’s main residence before moving into transitional accommodation and is part of a two-year aftercare programme. His primary reason for relocation was to sever all connections with his previous social network. As well, he has started studying towards a level four certificate in Health and Wellbeing specialising in addiction, a precursor to a Bachelor of Arts in addiction studies. Several people, including the director, manager and a senior clinician at Red
23 Webb v R [2022] NZCA 137 at [27], citing R v Ward [1976] 1 NZLR 588 (CA) at 590; R v Casey
[1031] NZLR 594 (CA) at 597; and Tiplady v Koroheke [2012] NZCA 477 at [24].
24 Orchard v R, above n 19 at [41] and Webb v R [2022] NZCA 137 at [27].
25 Mallett v R [2014] NZCA 39.
Door Recovery have provided letters indicating the appellant has engaged in the programmes available at the facility and is turning his life around.
[59] In R v Gear, the defendant received a 15 per cent discount for substantial rehabilitative efforts for serious methamphetamine offending.26 Mr Gear had handed in his gang patch, completed three rehabilitative courses, became clean from drugs for one month before enrolling in a 90-day inpatient programme and completed a harm reduction programme.27 As well, he became involved in the White Ribbon Riders Domestic Violence Awareness group and was a key speaker on rehabilitation.28 At the time of the decision, he had been clean from cannabis and methamphetamine for over 12 months and had established on his family lifestyle block, Hapū Collective, which helps to provide wrap-around services focusing on rehabilitation and support for recovering addicts.29 The Court found his rehabilitative efforts went well beyond his own recovery and extended to the community and his son’s rehabilitation too.30
[60] It is clear the efforts of Mr Gear were above and beyond what is normally seen before the courts. Care is needed as no two cases are the same, but I accept that, as in Gear, Mr Hastie-Sonnenberg’s rehabilitation similarly goes beyond his own personal recovery. His active participation in the programmes at the Red Door facility obviously provides a benefit to the community at large, but his further steps to complete study relevant to both his offending and addiction issues demonstrate a commitment to reducing similar harm in the community more directly. Mr Collinge, the Director of Red Door, recorded in his report that Mr Hastie-Sonnenberg’s goal is to work in the same sector. Mr Collinge stated Red Door “would have no hesitation in employing” Mr Hastie-Sonnenberg because “his lived experience brings credibility”. No doubt his personal experience would be an invaluable asset if he continues to pursue that pathway as he has indicated he intends to do.
26 R v Gear [2023] NZHC 432.
27 R v Gear, above n 21, at [17].
28 At [17].
29 At [18].
30 At [18].
[61] In Berkland, the Supreme Court stated one way to encourage offenders to take up the rehabilitative opportunities offered by programmes is to give material sentencing discounts when the evidence suggests the offender is genuinely willing to do so.31 The evidence before this Court does more than “suggest” this is the case here. Mr Hastie-Sonnenberg has made considerable efforts toward his rehabilitation and this should be reflected in the discount. For all these reasons, I find a discount of 15 per cent is appropriate.
[62] Finally, I note counsel’s confirmation from the bar that Mr Hastie-Sonnenberg received funding from St Vincent de Paul to attend the Red Door private facility and that the possibility of him attending on parole, should the New Zealand Parole Board so direct, remains open as was canvassed before Judge Turner.
Summary
[63] As he did so before the District Court Judge, Mr Williams submits the appropriate outcome would be a sentence that enabled the appellant to continue with his rehabilitation which was commenced when he was admitted to EM Bail. As the Crown acknowledged, if this could be achieved on a principled basis by a sentence of home detention that would be consistent with the sentencing purpose of rehabilitation and reintegration. However, the Court cannot tailor the elements of a sentence in order to reach a particular outcome when that is out of the available range.
[64] I have found no error in relation to the four-year starting point which the Judge fixed at the sentence indication and confirmed at sentencing, based on Mr Hastie- Sonnenberg’s culpability. With the one-year uplift for the appellant’s remaining charges, this gives an end starting point of five years’ imprisonment.
[65] For reasons of proportionality, I reduce the uplift to five percent, that is, three months. This appropriately recognises other factors in addition to the previous convictions, including that the offending occurred while the appellant was on bail and that deterrence is still an important principle given the appellant’s addiction does not explain the commercial level of dealing he was involved in.
31 Berkland v R, above n 8, at [161].
[66] I increase the rehabilitative discount to 15 per cent. This, together with 20 per cent for guilty plea and 15 per cent for background and addiction, amounts to 50 per cent. Taking off the 5 per cent uplift, the net discount is 45 per cent. This reduces the sentence to two years nine months’ imprisonment.
[67] There is then the credit of three and a half months for time spent on EM bail which brings the sentence to two years five and a half months’ imprisonment. Rounded down, this brings the end sentence to two years five months’ imprisonment.
Result
[68]The appeal is allowed.
[69] On the charge of possession of methamphetamine for supply the sentence is quashed and substituted with a sentence of two years five months’ imprisonment.
[70]All other orders and sentences imposed concurrently remain.
………………………………………
Preston J
Solicitors:
Crown Solicitor, Dunedin
Copy to: A M S Williams Barrister, Christchurch
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