Hunt v R
[2024] NZCA 10
•12 February 2024 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA423/2022 [2024] NZCA 10 |
| BETWEEN | DION JAMES HUNT |
| AND | THE KING |
| CA424/2022 | ||
| BETWEEN | ADA SHARON PUE | |
| AND | THE KING | |
| Hearing: | 5 October 2023 |
Court: | Katz, Palmer and Jagose JJ |
Counsel: | R A A Weir for Appellant in CA423/2022 |
Judgment: | 12 February 2024 at 10.00 am |
JUDGMENT OF THE COURT
The appeals are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Palmer J)
Mr Dion Hunt and his partner, Ms Ada Pue, were convicted of possessing methamphetamine for supply and supplying methamphetamine in Taranaki in 2017. They were each sentenced to five years and five months’ imprisonment with a 50 per cent minimum period of imprisonment (MPI).[1] Ms Pue appeals her conviction and sentence. Mr Hunt appeals his sentence. None of the grounds of appeal succeed, for the reasons provided below.
What happened?
[1]R v Hunt [2022] NZDC 13894 [sentencing notes].
On 6 July 2017, the police observed Mr Hunt meet Mr Tony Pue, Ms Pue’s son, at a McDonald’s carpark in New Plymouth. Mr Pue got out of his vehicle, approached Mr Hunt, got into Mr Hunt’s vehicle for a short period of time, and went back to his own vehicle. Shortly afterwards, the police stopped Mr Pue and found a total of 33.79 grams of methamphetamine:
(a)9.19 grams of methamphetamine was located on his person in four snap lock bags (6.7 grams of 80 per cent purity, 819 milligrams of 78 per cent purity, 819 milligrams of 80 per cent purity, 848 milligrams of 80 per cent purity);[2] and
(b)24.6 grams of brown-coloured methamphetamine of 73 per cent purity, was located in a snap lock bag in the vehicle.[3]
[2]This is equivalent to 7.32 grams of pure methamphetamine.
[3]This is equivalent to 17.95 grams of pure methamphetamine.
On 27 July 2017, the police executed a search warrant at the rural Taranaki property of Mr Hunt and Ms Pue. The police intercepted a telephone call from Ms Pue to Mr Hunt when she realised the police were executing the search warrant, saying “Dion get those plates”. In a plastic container by the fence line, the police found 24.2 grams of methamphetamine with a purity of 80 per cent.[4] They found smashed glass cookware on the grass outside the house with traces of methamphetamine on it. They also seized, as apparent in the exhibit schedule, $4,695.60 in cash.
[4]This is equivalent to 19.3 grams of pure methamphetamine.
In May 2022, in the District Court at New Plymouth, Mr Hunt and Ms Pue stood trial before Judge Greig and a jury on charges of manufacturing methamphetamine, possessing methamphetamine for supply, and supplying methamphetamine. Mr Hunt and Ms Pue denied any involvement in the offending. Neither gave evidence. At trial, as discussed further below, the Crown successfully applied to dismiss the charge of manufacturing methamphetamine.[5] On 1 June 2022, the jury found them each guilty of possession of methamphetamine for supply and supply of methamphetamine.
Ms Pue’s conviction appeal
[5]R v Hunt [2022] NZDC 9726 [trial ruling four] at [3]–[5].
Under s 232 of the Criminal Procedure Act 2011 (the CPA), the Court must allow Ms Pue’s appeal against conviction only if we are satisfied that a verdict was unreasonable or a miscarriage of justice occurred that created a real risk that the outcome of the trial was affected or resulted in an unfair trial. Ms Abdale, for Ms Pue, submits the threshold is satisfied because of the combination of several errors, irregularities, or occurrences. Mr Davie, for the Crown, submits the threshold is not satisfied. We address each issue in turn.
Issue 1: Did a change in charges make propensity evidence inadmissible?
Propensity evidence
On 23 May 2018, Judge Sygrove ruled that propensity evidence would be admissible at trial.[6] At that point, Mr Hunt and Ms Pue also faced charges of manufacturing methamphetamine and conspiring with each other to supply methamphetamine. The propensity evidence was that, in March 2004 in Auckland, Mr Hunt was convicted of manufacturing and supplying methamphetamine and Ms Pue was convicted of supplying a Class B drug, conspiring to deal with a Class B drug, and manufacture of methamphetamine.[7] During an intercepted conversation in 2002, Ms Pue gave instructions to put the methamphetamine on a glass plate and spread it really thin so it would dry faster. The Crown wished to contend that the previous convictions showed Ms Pue and Mr Hunt had been willing to play a part in the process of manufacturing and supplying methamphetamine. The instructions given in the intercepted call were included in the admitted facts at the 2022 trial. Judge Sygrove’s decision was upheld by the Court of Appeal and the Supreme Court declined leave to appeal.[8]
[6]R v Hunt [2018] NZDC 8893 at [34].
[7]At [24].
[8]Hunt v R [2018] NZCA 503 at [24]; and Hunt v R [2019] NZSC 15 at [5]–[6].
On 13 August 2021, Judge Greig declined a defence application that the propensity evidence should not be admissible at trial because of a material change in circumstances.[9] The material change was said to be the Crown’s withdrawal of the charge of conspiring to manufacture methamphetamine. The Judge considered that was not a material change in circumstances and the proposed propensity evidence was still relevant and admissible.[10]
[9]R v Pue [2018] [sic] NZDC 16285.
[10]At [25]–[26].
During the trial, on the basis of the evidence of its scientific expert witness, the Crown concluded that it could potentially prove the defendants had crystallised methamphetamine but could not prove that amounted to production or manufacture of methamphetamine. In light of that, at the conclusion of the Crown case, the Crown applied to dismiss the charge of manufacturing methamphetamine, which the Court did.[11]
[11]Trial ruling four, above n 5, at [3]–[5].
In summing up at the end of the trial, Judge Greig gave the jury a written propensity direction, talked them through it, and told them that they could not jump to a finding of guilty based solely on the 2004 convictions.
Submissions
Ms Abdale submits the propensity evidence was not admissible because the conspiracy charge had been withdrawn and the manufacturing charge had been dismissed. Of the four charges to which the propensity ruling related, only two are left.
Mr Davie submits the 2004 convictions, which involved the recrystallisation of methamphetamine, have high probative value as circumstantial evidence of the Crown’s allegations of recrystallisation in 2017. That analysis is not materially altered by the withdrawal of the conspiracy charge or the dismissal of the manufacturing charge.
Admissibility of the propensity evidence
As the Judge said in his summing up, it would be “utterly wrong to reason that because the defendants have done this sort of thing before they must be guilty this time”. The Judge noted in his summing up that the manufacturing charge had been withdrawn because the Crown had not provided sufficient evidence that the specific scientific processes were undergone. But, as the Judge also told the jury, the Crown still maintained that the defendants were involved in recrystallising or improving methamphetamine. The Crown relied on Ms Pue’s instruction to Mr Hunt to “get those plates”. The dismissal of the manufacturing charge did not change the relevance of the propensity evidence. The Crown continued to allege that Ms Pue recrystallised the methamphetamine, which is why it was on the glassware. The previous conviction for manufacturing, and her use of glassware for recrystallisation in doing that, in 2002 was probative of her alleged recrystallisation here. It made it more likely that Ms Pue knew about, and was involved with, the alleged recrystallisation here, and therefore possessed the methamphetamine, contrary to her defence. We dismiss this ground of appeal.
Issue 2: Was the amendment of charges unfair?
The amendments to the charges
At the beginning of the trial, Ms Pue was charged with:
(a)supplying methamphetamine to Mr Pue on 6 July 2017, as a party under s 66(1) of the Crimes Act 1961;
(b)possessing methamphetamine for supply on 27 July 2017, as a party under s 66(1) of the Crimes Act; and
(c)manufacturing methamphetamine between 1 March 2017 and 27 July 2017, as a party under s 66(1) of the Crimes Act.
During the trial, the charge list was amended to remove a reference to s 66(1) in relation to the possession for supply charge. There is a lack of clarity about what led to this. Mr Weir, as counsel for Mr Hunt at trial and on appeal, recalls that the Judge raised with counsel for the Crown that, in his view, the way in which the charging document was expressed for charges 1 and 2 presented problems for the Crown, following which the further charging document was filed. Ms Abdale cannot locate her notes of the trial.
Submissions
Ms Abdale submits the Judge erred in inviting, and then permitting, the Crown to amend the charge notice to remove the alleged party liability nature of the charge of possession for supply under s 66(1). Ms Abdale invites us to obtain a transcript of the Judge’s conversation with counsel and otherwise, effectively, to infer from the Crown’s closing submissions, and from the Judge’s summing up, that the possession for supply charge against Ms Pue was based on party liability under s 66(2) at the end of the trial, as opposed to party liability under s 66(1) for which she was originally charged. She submits that substantially changed the entire nature of the case. It was made too late in the trial and prejudiced the defence.
Mr Davie submits the Crown case against Ms Pue never changed. She was charged as a party under s 66(1) for charge 1 and as a joint principal for charge 2. There was never any suggestion of liability under s 66(2). In any event, there would have been no prejudice.
The amendment
The second Crown charge list, which was the list at the beginning of the trial, referred to s 66(1) as relevant to the possession for supply charge. That could have been as the person who actually committed the offence under s 66(1)(a) (effectively as a principal) or as a secondary party under s 66(1)(b), (c), or (d). Apart from the charging document, there is no indication from any of the pre-trial decisions, the Judge’s opening address or the Crown’s opening address, or any other document before us that the trial opened on the basis that Ms Pue was charged with possession for supply as a party.
The third list, on the basis of which the Judge noted Ms Pue had been convicted, did not refer to s 66(1) in relation to the possession for supply charge. However, neither did it refer to s 66(2), as Ms Abdale suggests. So, the charge list itself suggests Ms Pue faced the possession for supply charge at the end of the trial as a joint principal with Mr Hunt. We consider that is entirely clear, given the content of the question trail, the Judge’s summing up, and the closing submissions:
(a)The question trail, considered by the jury in respect of Ms Pue, indicates that no party liability was alleged in relation to the possession for supply charge, by contrast to the supply charge. The supply charge in the question trail was entitled “Being a Party to Mr Hunt in the Supply of Methamphetamine” and asked whether the jury was sure that Ms Pue encouraged and/or assisted Mr Hunt to give the methamphetamine to Mr Pue and intended to encourage or assist him to do so. The possession for supply charge in the question trail, entitled “Possession of Methamphetamine for Supply”, asks whether the jury was sure she had possession of the methamphetamine found on the fence line. There was no question about Ms Pue having a common unlawful purpose with Mr Hunt or an agreement to help achieve that purpose, as would be required if liability was being alleged under s 66(2).
(b)Similarly, the Judge explained in his summing up that Ms Pue was charged as a party in relation to the first charge and explained how a defendant can be a party. There was no explanation of a common unlawful purpose nor agreement to help each other achieve the common unlawful purpose in relation to the possession for supply charge. Rather, the Judge explained “in relation to charge 2 as it relates to Ms Pue, you simply follow the same reasoning process as you did in relation to charge 2 for Mr Hunt”.
(c)Neither do we consider that the Crown’s closing submissions suggest that s 66(2) liability was being alleged, or that they differed materially from its opening submissions in this regard. There was a reference in the “nutshell” of the Crown’s closing to “joint possession” of the methamphetamine on the fence line on 27 July 2017. But that does not constitute the Crown alleging s 66(2) liability.
We obtained a transcript of the legal discussion between the Judge and counsel, to which Ms Abdale referred. There was no discussion of liability under s 66(2). The Crown stated that, from the outset, its case had always been one of joint possession. Party liability for both Mr Hunt and Ms Pue under s 66(1) was under s 66(1)(a). The Crown submitted it was entitled to preserve its position on the type of party liability under s 66(1) until the Crown closings and defence counsel agreed with this. The Judge agreed that the Crown’s case has been one of joint possession, and said he would prepare his summing up and the question trail on that basis. It was Mr Weir who asked for the reference to s 66(1) to be removed from the charge list. We consider the record is clear that there was no substantive change in the case against Ms Pue and, therefore, she was not prejudiced. We dismiss this ground of appeal.
Issue 3: Did the Judge err in refusing to allow a question about cash seized?
On execution of a search warrant at Mr Hunt’s and Ms Pue’s house, the police found $3,000 in a bag in the kitchen, $1,160 in Mr Hunt’s wallet, $37.60 in a car at the address, and $498 in Ms Pue’s handbag. The Crown opened its case on the basis that the cash found, specifically the $3,000 in the bag and the $1,160 in Mr Hunt’s wallet, was evidence of drug dealing. But all of the money seized, except for the $37.60, was returned to the appellants following a successful appeal of its restraint.[12] During the trial, defence counsel sought to question the officer in charge about this so as to invite the jury to infer the money was not sourced from criminal activity. This was backed by an affidavit by a witness who said he had given Mr Hunt $3,000 from a large gambling win to buy Ms Pue’s car.
[12]Hunt v Commissioner of Police [2021] NZCA 644, [2023] 2 NZLR 1.
On 27 May 2022, towards the end of the trial, the Judge refused to allow the questioning. He stated that the Court of Appeal had observed that the question of whether that property was tainted was still open.[13] The money was returned primarily because the amount of assets seized was disproportionate to the level of drug dealing the police were alleging and some had to be returned.[14] So the Judge considered that it would give the jury a completely false picture to put to the jury that they can conclude the money was not proceeds of drug dealing. He stated that, if the defence wanted to suggest an alternative source for the money, they would need to call the witness. Otherwise, they were not to ask questions about the money being returned.
[13]At [72].
[14]At [68] and [72].
Ms Abdale submits the Judge erred. There was proof the money had been derived legitimately and the money was accordingly returned to Ms Pue.
But, as Mr Davie submits, the question about the money was properly ruled out. The answer would have implied the money was not evidence of offending. That would have been misleading. The $4,825 was returned, along with other property, because its total value of $874,000 exceeded the alleged financial benefits of the offending. This Court did not decide the money was not proceeds of crime. If Ms Pue had wanted to pursue this point, she could have called a witness as the Judge explicitly allowed. In the absence of that, the Judge was correct to rule the question out. We dismiss this ground of appeal.
Issue 4: Was there insufficient evidence of Ms Pue supplying methamphetamine?
A verdict can only be set aside for being unreasonable if, on the basis of all the evidence, a jury acting reasonably ought to have entertained a reasonable doubt as to guilt.[15] The appellate court exercises a review function in this regard and is not conducting a retrial or substituting its own view of the evidence. We must give appropriate weight to the advantages the jury had, such as assessing the credibility and reliability of witnesses. Appellate courts do not lightly interfere with a jury’s findings of fact.
[15]Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [31]. The Supreme Court recently noted that it will not be revisiting the principles in Owen v R: see Kuru v R [2023] NZSC 102 at [3].
Ms Abdale submits there was no evidence linking Ms Pue to the supply of methamphetamine to Mr Pue. She only returned to the address from Hamilton the day before. The fact she knew of smashed plates was not evidence of her involvement in supply or possession or control of methamphetamine.
Mr Davie submits the Crown’s case was strong. There are compelling strands of evidence that, together, provide a sound basis for the guilty verdict to the charges against Ms Pue of being a party to supply and possession for supply.
We agree that there was an adequate evidential foundation for the jury’s verdict that Ms Pue was guilty of being a party to supplying methamphetamine to Mr Pue on 6 July 2017:
(a)Intercepted phone conversations indicate that Ms Pue helped arrange the meeting between Mr Hunt and Mr Pue. This was in the context of Mr Hunt and Ms Pue discussing the possibility that the police were listening to them.
(b)Mr Hunt supplied Mr Pue with methamphetamine at McDonalds. Mr Pue pleaded guilty. Ms Pue suggested it was a mistake to meet at McDonalds.
(c)After Mr Pue’s arrest, Ms Pue agreed with Mr Hunt that he should tow Mr Pue’s caravan and should tell someone else to clean it. They also discussed whether Mr Pue was watched or set up. There was no suggestion in their discussions that Mr Pue might have been wrongly accused.
(d)When Ms Pue was arrested, she asked whether she was being arrested for supplying or being a party to supplying methamphetamine. When told it was being a party to supply, she said “that makes more sense”.
(e)The 2004 convictions are propensity evidence of Ms Pue’s involvement with, and knowledge of, methamphetamine.
There was also an adequate evidential foundation for the jury’s verdict that Ms Pue was guilty of possession of methamphetamine for supply:
(a)Ms Pue lived at the address where the methamphetamine was found on the fence line.
(b)Intercepted phone conversations indicated Ms Pue directed Mr Hunt to the location of the fence line where the methamphetamine was stored and that she was the one who “wrapped” it.
(c)The plastic container in the fence line that was storing the methamphetamine also had paper tissues inside of it, which corresponded with a roll of paper tissues found inside the address.
(d)Significant quantities of cash were found, significant cash transactions were uncovered, and there was no evidence to establish a legitimate explanation for the cash.
(e)The evidence of recrystallisation occurring inside the kitchen of the property, alongside Ms Pue’s previous convictions, suggested it was less likely there was an innocent explanation for the phone conversations about the cash.
We dismiss this ground of appeal.
The sentence appeals
Context of the other sentencing
Along with the charges against Mr Hunt and Ms Pue in respect of the 6 July 2017 interaction in the McDonald’s carpark, the police also charged Mr Pue with possession of methamphetamine for supply and his associate, Mr Mawene Bidois, with possession of methamphetamine. Mr Pue and Mr Bidois pleaded guilty on the basis of a summary of facts which stated that:
(a)Mr Bidois had six “deal” bags of methamphetamine each with 0.04 to 0.35 grams of methamphetamine, totalling 0.88 grams, on his person and a digital scale in his pocket.
(b)Mr Pue had a larger “deal” bag with 8.68 grams of methamphetamine, three smaller “deal” bags with 0.49 grams, 0.48 grams, and 0.49 grams, and a substantial amount of cash on his person.
(c)In their vehicle was a satchel, of which Mr Pue accepted ownership, with another larger deal bag of 27.22 grams of methamphetamine, digital scales, and a packet of smaller deal bags matching those found on Mr Bidois.
The summary of facts on which Mr Pue and Mr Bidois pleaded guilty clearly conflicts with the evidence which came out at the trial of Mr Hunt and Ms Pue in respect of the amounts found on Mr Pue and in his vehicle. On 8 December 2017, in the District Court at New Plymouth, Judge Sygrove sentenced Mr Pue after having given him and Mr Bidois a sentencing indication based on the amounts in that summary of facts.[16] Mr Pue was also sentenced for two previous charges of selling cannabis and another charge of supplying methamphetamine in Palmerston North.
The sentences
[16]R v Pue [2017] NZDC 28096.
On 22 July 2022, in the District Court at New Plymouth, Judge Greig sentenced Mr Hunt and Ms Pue to five years and five months’ imprisonment with an MPI of 50 per cent. At the sentencing, Mr Hunt claimed he had only supplied the bag containing 6.7 grams to Mr Pue, not the rest. The Judge stated:[17]
[5] Mr Hunt, although you denied the offence at trial you now concede that you supplied one of those packets to Tony Pue. You claim it was the smaller of the two packets, in effect now admitting to supplying 10 grams.[18] We have already had a discussion earlier on this afternoon as to whether you should be allowed to retract those remarks that you made to the probation officer and I have rejected that application made by your counsel.
[6] But I am entitled to take what view of the facts I feel are supported by the evidence and based on all of the evidence around what you two were doing at the time, recrystalising brown meth into white meth, which describes the appearance of the two packets that were found on Tony Pue, I find that you supplied all of the methamphetamine found on him that day, not the much smaller amount that you now admit to, and although I know that, Ms Pue, you were in Hamilton on that day, and the day before when you had that conversation with your partner, it is very clear judging from that conversation and of course because the methamphetamine was supplied to your own son, that this was a joint enterprise and you are both equally guilty in supplying those drugs to Tony Pue.
…
[13] On your behalf Mr Hunt, your counsel, has asked me to sentence you on the basis that you only supplied a little over 10 grams to Tony Pue. Mr Weir points to the two packets of drugs being in different places in the car and I also do bear in mind that both quantities of the drugs looked different, one was made up of brown crystals and the other was made up of white crystals. However, the evidence established that you were in the business of receiving brown crystals and washing them or recrystalising them as the scientists referred to, turning them from a less attractive product into the more attractive white crystalline product. It is also inherently unlikely that Tony Pue would need a further 10 grams of meth along with the $4,000 you gave him if he was already in possession of over twice that amount. I am not going to sentence you on the basis that you only provided Tony Pue with 10 grams.
[17]Sentencing notes, above n 1.
[18]We understood from submissions that the 10-gram figure was an error, based on the bag-inclusive weight in the summary of facts to which Mr Pue pleaded guilty.
The Judge set a starting point of five years’ imprisonment based on the 33.79 grams that Mr Pue had, plus the 24.2 grams found at Mr Hunt’s and Ms Pue’s address.[19] The Judge uplifted the starting point by nine months for their previous offending of manufacturing methamphetamine.[20] He discounted their sentences by four months for their time on electronically monitored bail, some of which was with a curfew.[21] He declined to discount the sentences for delay, the vast majority of which he considered were due to their own applications and appeals designed to delay the trial.[22] He imposed a 50 per cent MPI because of their previous convictions.[23]
The appeal
[19]At [20].
[20]At [20].
[21]At [20].
[22]At [21].
[23]At [24].
Under s 250(2) of the CPA, this Court must allow a sentence appeal only if we are satisfied that there was an error in the sentence imposed and a different sentence should be imposed. Otherwise, we must dismiss the appeal. The sentence must be “manifestly excessive” for this Court to intervene on appeal.[24]
The submissions
[24]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].
Mr Weir submits the Judge was wrong to treat all the methamphetamine found on Mr Pue as supplied by Mr Hunt. The summary of facts which were the basis for the guilty pleas and sentences of Mr Pue and Mr Bidois contradicts this finding. The amount Mr Hunt supplied to Mr Pue cannot reasonably be estimated. Mr Hunt should have been sentenced on the basis of supply of 6.7 grams of methamphetamine. Given that, the starting point was too high, having regard to other cases.[25] In addition, the uplift was too high and the imposition of the MPI was wrong given that the previous convictions were 20 years old. The MPI was also wrong because it would hinder Mr Hunt’s rehabilitation. There was no basis on which to comment about there being tactical reasons for delays.
[25]Philip v R [2022] NZSC 149, [2022] 1 NZLR 571; and R v Williams [2022] NZHC 2660.
Ms Pue endorses Mr Weir’s submissions in relation to Ms Pue’s sentence. She submits that the Judge erred by taking into account irrelevant or unsupported factors:
(a)Ms Pue exercised her rights of pre-trial applications and appeal and this should not have counted against her in sentencing.
(b)The Crown had the manufacturing charge dismissed. So Ms Pue recrystallising brown methamphetamine into white methamphetamine was not relevant nor proven.
(c)There was no evidence Mr Hunt supplied all the methamphetamine to Mr Pue.
(d)There was no evidence Ms Pue knew the methamphetamine was hidden on the fence line, as intercepted communications referred to something unidentified previously hidden along the fence line.
(e)There was no evidence that the offending was a “family business”.
Ms Abdale also submits Ms Pue was given insufficient discount for her work in the community, her poor health and the delays in the proceedings.
Mr Davie submits the Judge was entitled to find that Mr Hunt supplied all of the methamphetamine. The Judge was entitled to consider the summary of facts and sentencing of Mr Pue but was not required to do so because of the different roles involved in the commercial drug plan. There was no error in the starting point, given the Judge’s findings of Mr Hunt’s and Ms Pue’s lead role as the architects and main actors in the commercial plan for profit. The Judge was entitled to uplift the sentence for re-engaging with commercial methamphetamine a decade after leaving prison for doing so previously. A discount for delays was not appropriate, due to the role the appellants played in the delay. The MPI was justified.
Were the sentences manifestly excessive?
The Judge was entitled to consider the implications of the summary of facts on which Mr Pue pleaded guilty and to consider the implications of Mr Hunt’s assertion, contrary to his position at trial, that he had supplied Mr Pue with methamphetamine but that it was not as much as the Crown alleged. But the Judge also conducted the trial of Mr Hunt and Ms Pue. In assessing the facts for the purposes of sentencing, he was entitled to give more weight to facts proven on the basis of evidence given at trial if that conflicted with the summary of facts that was the basis for Mr Pue’s plea and Mr Hunt’s changed position. That included evidence of a recrystallisation process. Just because some of the methamphetamine was crystalised to white does not mean it all was. The Judge was entitled to consider it was unlikely Mr Pue would try to obtain more methamphetamine if he already had 24.6 grams. There are obvious problems of reliability and credibility with Mr Hunt’s change of position. The Judge did not err in sentencing Mr Hunt and Ms Pue on the quantity of methamphetamine that he did. We consider the starting point he adopted was within the range available to him having regard to comparable cases.[26] The case of Philip v R, relied upon by Mr Weir and Ms Abdale, is not comparable, because the offender there had significant mitigating factors, being driven by addiction and having limited expectation of financial gain.[27]
[26]Reid v R [2013] NZCA 89 at [11]; and Pou v R [2020] NZCA 160 at [82].
[27]Philip v R, above n 25, at [38].
We do not consider that the uplift to the sentence or the MPI imposed on the basis of Mr Hunt’s and Ms Pue’s previous convictions were too high. There was a nine‑to‑ten‑year gap between their release from prison and their repeat offending. That suggests they will remain a risk to public safety. Their offending has not been curbed by punishment, opportunities for rehabilitation, or the passage of time. The uplifts and MPI were not out of proportion to the offending here.
The arguments based on delay are misconceived. The Judge did not treat the delays as an aggravating factor, and he explicitly recognised Mr Hunt’s and Ms Pue’s exercise of their rights to make applications and appeals. But he was justified in assessing that their motivation in exercising those rights meant they were not entitled to a discount.
The thrust of the material Ms Pue relies upon is that she is of good character. But, given her previous convictions, a discount for that is clearly not available to her. There is also no evidence her health issues cannot be addressed in prison. There is evidence they are being addressed in prison.[28]
[28]See Pue v R [2022] NZCA 529 at [7].
We dismiss the sentence appeals.
Result
The appeals are dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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