Horsfall v R
[2012] NZCA 97
•19 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA667/2011 [2012] NZCA 97 |
| BETWEEN MUCKUNDA HORSFALL |
| AND THE QUEEN |
| Hearing: 12 March 2012 |
| Court: Stevens, Chisholm and Heath JJ |
| Counsel: B J Hart for Appellant |
| Judgment: 19 March 2012 at 11.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
The appellant, Mr Horsfall, pleaded guilty on the first day of trial to charges of manufacturing and supplying the Class A controlled drug methamphetamine. He was sentenced by Judge Perkins in the District Court to two years and six months imprisonment.[1] The appellant appeals against that sentence on the basis that it is manifestly excessive.
Factual background
[1]R v Horsfall DC Auckland CRI-2010-404-94, 4 October 2011.
The appellant belonged to a small group whose members have been charged with a number of methamphetamine-related offences, laid following a police investigation known as Operation Heller in late 2008. The charges against the appellant relate to one particular “cook” between 13 and 25 November 2008.
The appellant’s role involved assisting in the manufacture of methamphetamine by supplying pseudoephedrine that was used to manufacture two ounces of methamphetamine. The appellant then delivered the final product to Mr Hunter, who was at a higher level in the methamphetamine manufacturing operation.[2] The appellant had contacted Mr Hunter immediately following his release from prison and became involved in assisting him.
Sentencing
[2]Mr Hunter was sentenced to six years imprisonment: R v Hunter DC Auckland CRI‑2010‑404‑94, 31 August 2011.
Judge Perkins first conducted a disputed facts hearing to determine two issues. One related to the truth of the appellant’s contention that the primary offender, Mr Hunter, exerted an “evil control” over him because of a debt allegedly owed to Mr Hunter by the appellant’s partner. The Judge rejected this claim. The second disputed fact was the quantity of methamphetamine manufactured. The Judge found that two ounces (approximately 56 grams) was manufactured and supplied.
The Judge considered the nature of the offending as well as all aggravating and mitigating factors before setting a “starting point” of three years imprisonment. He adopted the same starting point as he had for another member of the group, Mr Butt.[3] The Judge noted that the Crown accepted that the appellant’s role was as a party to manufacture. He then considered the appellant’s personal circumstances, which included strong support from his partner and her family. The Judge stated that he had not been able to identify in the relevant documents any expression of remorse. Finally, the Judge noted that, while a starting point of four to five years imprisonment would be “in keeping with the tariff authority”,[4] he preferred to adopt a starting point that was consistent with the sentence given to Mr Butt, a co-offender. Therefore a starting point of three years was adopted. From this starting point, the Judge allowed a discount of 15 per cent for the guilty plea. An overall sentence of two years, six months imprisonment was imposed.
Submissions
[3]Mr Butt appealed against his sentence of three years imprisonment. The appeals were heard at the same time and we have dismissed Mr Butt’s appeal: Butt v R [2012] NZCA 96.
[4]This is a reference to R v Fatu [2006] 2 NZLR 72 (CA).
There are three issues on appeal. First, did the appellant receive adequate credit for his steps taken towards rehabilitation? Second, was adequate credit given for his remorse? Third, if this Court on appeal were to conclude that a sentence of two years imprisonment was appropriate, should a sentence of home detention have been considered? We will deal with each issue in turn.
Rehabilitation
The appellant contends that he did not receive due credit for steps taken towards his rehabilitation from drug and alcohol addictions. At the time of his sentencing the appellant claimed not to have used drugs or alcohol for two years. As proof of this he presented to the Court a drug test from the New Zealand Drug Detection Agency showing a negative result for amphetamines. Counsel for the appellant referred to R v Hill.[5] where this Court approved a 35 per cent reduction in the case of an appellant who had attended an outpatient rehabilitation course. Counsel also identified R v Stempa[6] as a case where a significant discount was given for mitigating factors including a commitment to rehabilitation.
[5]R v Hill [2008] NZCA 41, [2008] 2 NZLR 389.
[6]R v Stempa [2008] NZCA 254.
The Crown submitted that the cases of Stempa and Hill are not analogous as they both involved possession of methamphetamine for supply. Manufacturing methamphetamine is more dangerous to the community than possessing or supplying and there is thus a greater need for denunciation and deterrence. Counsel for the Crown contended that this should result in less relative weight being given to rehabilitation.
Remorse
The appellant submitted that he did not receive adequate credit for his remorse. Counsel points to the following passage in the pre-sentence report as evidence of remorse:
He shows remorse for his offending and said he “wishes (he) never got involved with it at all”. He said he had promised himself he would not get in trouble and was disappointed that he had become involved. He showed insight into his offending and its seriousness acknowledging that “it (methamphetamine) destroys people’s lives” and “causes violence and crime”.
The Crown acknowledged that the sentencing notes indicate that the Judge may have overlooked this passage. However, Mr Raftery argued that this comment was made in the context of the appellant showing no remorse, in that immediately following his release from prison he went to contact Mr Hunter. In any event, counsel submitted that taken as a whole the sentence was not manifestly excessive.
Home detention
The appellant argued that the appropriate end sentence should come within the range that allows home detention to be considered. Whether we get to this point depends on our views on the first and second issues.
Discussion
We see no merit in the first and second grounds of the appeal. First we are satisfied that the starting point of three years imprisonment was lenient. The Judge determined that starting point by drawing a comparison with the starting point of three years for one of the co-offenders, Mr Butt. But the circumstances of the offending were not comparable.[7] Following his trial, Mr Butt was sentenced on one charge of being a party to the manufacture of methamphetamine. He was not sentenced for any charge of supplying methamphetamine, having been discharged on that count during the trial. The appellant by contrast pleaded guilty to two charges, being a party to manufacturing methamphetamine and supplying what the Judge found was two ounces of methamphetamine to Mr Hunter. A starting point in excess of three years would not have been out of range. It follows that the three year starting point was generous to Mr Horsfall.
[7]The factual background to Mr Butt’s offending is described in the judgment of this Court: Butt v R [2012] NZCA 96 at [3]–[4].
The second point is that the discount of 15 per cent for the guilty pleas (six months imprisonment) was equally generous. Given that the pleas only came on the first day of trial, a discount of 10 per cent would not have been out of line. Mr Hart argued that the appellant was discharged on a conspiracy count at the time of his entering the pleas. We do not consider this changes what was plainly a generous allowance for these very late guilty pleas.
As to remorse, we accept that the Judge was in error when he said that he could not find in the documents any expression of remorse. The fact is that the pre‑sentence report mentioned that the appellant “shows remorse for his offending”.[8] But we are satisfied that this error did not result in the sentence being manifestly excessive. Any adjustment for remorse would have been small. Given the lenient starting point and the generous allowance for the guilty pleas, the failure to address whatever true remorse existed could not have led to a materially different sentence.
[8] In the passage quoted at [9] above.
The same applies to the alleged failure to consider and make an allowance for steps towards rehabilitation. The Judge plainly considered the submission on this point when he referred to counsel’s argument that mitigating factors included “strong efforts to rehabilitate yourself” and some restrictive bail conditions.[9] We are satisfied that neither of these factors warranted a discount greater than the 15 per cent allowed for the guilty pleas. The appellant was being sentenced for his part in the manufacture of two ounces of methamphetamine and its supply to a major drug dealer, Mr Hunter. Personal factors, including rehabilitation, will inevitably be of lesser significance.[10]
Result
[9] At [30].
[10]See the statement of this Court in Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174]: “While the Court will not fetter the discretion to take [personal] circumstances into account, they generally carry little weight in sentencing for serious, drug related offending given the vital need for denunciation and deterrence.”
The final sentence of two years and six months imprisonment was lenient. No lower figure can be justified. It follows that no issue of home detention arises.
The appeal is dismissed.
Solicitors:
Nigel Cooke, Solicitor, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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