Hussey v The King

[2024] NZHC 780

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-088-000018

[2024] NZHC 780

MAXWELL HUSSEY APPELLANT

v

THE KING RESPONDENT

Hearing:	11 April 2024
Appearances:	M R Ridgley for the Appellant D M Soich for the Respondent
Judgment:	26 April 2024

JUDGMENT OF WHATA J

Appeal

Solicitors / Counsel:

Thompson Wilson, Whangarei

MWIS Lawyers, (Office of the Crown Solicitor) Whangarei

HUSSEY v R [2024] NZHC 780 [26 April 2024]

[1]    Mr Hussey pleaded guilty to one charge of producing or manufacturing methamphetamine,1 and one charge of possession of equipment with intent.2 He was sentenced to two years six months’ imprisonment. He appeals that sentence as manifestly excessive.

Key facts

[2]    The key facts of the offending may be simply stated.   In the early hours of    2 November 2022, Mr Martin, a co-defendant, uplifted items required to manufacture methamphetamine. He later met up with Mr Hussey, who had just purchased two glass two-litre measuring jugs. They then together purchased eight bags of ice. The Police obtained a search warrant of Mr Hussey’s property. While they were executing the search, Mr Martin arrived and drove away to avoid detection. He was later found with a gun and a warm keg distillation unit in his car.

[3]    Meanwhile Mr Hussey was arrested at his property. Police located clandestine laboratory equipment there. Hypophosphorus acid, methamphetamine and biproducts of the methamphetamine manufacturing process were also found, indicating it has been used during the methamphetamine manufacture process. Liquid contained in a two-litre glass jug contained methamphetamine, pseudoephedrine and ephedrine. There was also evidence of methamphetamine residue on various surfaces, including on a baby rocker in the children’s bedroom. This could be attributable to use or manufacture.

Key disputed inferences

[4]    Two key inferences are disputed. First, the Crown claims that it may be inferred from the available facts that Mr Hussey was actively engaged in the manufacture and so is equally culpable for the manufacture as Mr Martin. Second, while the Crown accepts that Mr Hussey’s addiction contributed to his offending, its significance is disputed given that it may be inferred the offending was both

1      Misuse of Drugs Act 1975, s 6(1)(b) and (2). Maximum penalty: life imprisonment.

2      Misuse of Drugs Act, s 12A(2)(a) and (3)(b). Maximum penalty: Five years’ imprisonment.

premeditated and motivated by commercial gain. Mr Hussey does not accept these inferences are available from the summary of facts to which he pleaded guilty.

Mr Martin’s sentencing indication

[5]    Mr Martin was given a sentencing indication for his role. It was one of several manufacturing sites used by Mr Martin. The starting point for manufacturing at one site was three years which was then uplifted for each of the other manufacturing sites.

The District Court sentence

[6]    Judge Orchard found Mr Hussey’s culpability to be the same as Mr Martin and adopted a starting point of 3  years  for  the  manufacture  of  methamphetamine.3  She referred to the high level  of  premeditation  and  planning  involved  and  that Mr Hussey helped obtain equipment. The Judge found that there was a commercial element involved. She did not uplift for possession as this was part of the manufacture offending.

[7]    The Judge considered that Mr Hussey’s prior convictions in 2020 and 2021 to be aggravating features, noting that he was subject to bail conditions at the time of the 2020 offending and to parole at the time of the 2021 offending. She applied a four month uplift for this. Another four months was applied for his extensive criminal history dating back to 2006.

[8]    Mr Hussey’s addiction, which overtook him at 21 when his infant son died, was acknowledged but not considered as a relevant factor given that 16 years had passed. While the Judge expressed scepticism about Mr Hussey’s rehabilitation efforts, she applied a 10 per cent discount for this factor and s 27 cultural considerations, endorsing the Crown’s submission that that the latter does not reduce his agency and that he has retained  some  of  his  old  pro-criminal  associations. The Judge also noted that he had received s 27 discounts for the 2021 offending, and that it seemed wrong to her that “a mature man should be able to get almost an

3      R v Hussey [2024] NZDC 4895 at [18].

automatic deduction for things that have happened years ago whenever they appear for sentencing before the criminal court.”4

[9]    Combined with a discount of 20 per cent for guilty pleas, the total discount came to 13.2 months. This was rounded up to 14 months. The Judge then arrived at an end sentence of three years four months, together with a concurrent sentence of six months for possession of equipment.

Threshold for Appeal

[10]   I must allow the appeal if satisfied there is an error in the sentence and a different sentence should be imposed. Error includes a sentence that is manifestly excessive. 5

Appeal grounds

[11]Mr Ridgley for Mr Hussey identifies five main grounds of appeal:

(a)The starting point was wrong – Mr Hussey’s involvement is not the same as Mr Martin who actually manufactured the methamphetamine. A starting point at the lower end of Band two from Zhang was appropriate, in the order of two to two and a half years.6

(b)A discount should have been given for Mr Hussey’s addiction as it was causative of his offending and there is no basis to assume that it has become less relevant with the passage of time.

(c)A discount should have been applied for his time on EM bail of two months and 25 days.

(d)Acknowledging the risk of double counting the significance of the addiction and its genesis, a further discount should have been given for s 27 background factors.

4 At [36].

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

6      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

(e)The Judge wrongly assumed that Mr Hussey was on parole at the time of the 2020 drug offending.

Crown’s position

[12]    Ms Soich submits that Mr Hussey’s level of culpability is similar to Mr Martin because Mr Hussey actively assisted in the manufacture. She adds that in terms of the starting point adopted for Mr Martin, it did not include his involvement in the wider methamphetamine operation as an aggravating feature. That was taken into account in uplifts and a final starting point sentence of nine years. As a consequence, the starting point of three years is appropriate in terms of culpability specifically in relation to the manufacturing at Mr Hussey’s home.

[13]   Ms Soich also submits sufficient regard was had to Mr Hussey’s addiction in the form of the 10 per cent discount given for background factors, and any further discount for addiction would involve double counting. She says that the EM bail aspect is effectively accommodated by the increase in discount from 13.2 months to 14 months. She accepts that the Judge erred in finding that Mr Hussey had offended multiple times while on  parole  when  he  had  offended  only  once  previously.  She submits however that an uplift of four months was in any event justified given that he offended while on parole following a sentence for commercial methamphetamine offending. It is also noted that the Judge could have given a lesser discount for guilty plea, which was made some 13 months after the charges were laid, a pre-trial application to exclude evidence, and several call over appearances in which a not guilty plea was maintained.

Errors

[14]I consider that the Judge erred in two key respects.

[15]   First, I do not accept it can be inferred that Mr Hussey’s involvement was similar to Mr Martin’s. It is helpful to remind ourselves of the approach to the

assessment of culpability mandated by the Court of Appeal in Zhang. The bands are as follows:7

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 kilo grams	10 years to life	8-16 years
Band five: > 2 kilo grams	10 years to life	10 years to life

[16]The role categorisations are:8

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

7      Zhang v R, above n 7, at [125].

8      Zhang v R, above n 7, at [126].

9. if own operation, solely or primarily for own or joint on non-commercial basis.

[17]   For my part, it may be reasonably inferred from available and uncontested information, that Mr Martin engages all items in the significant category. He has expertise in the manufacture of methamphetamine and was involved in the manufacture of methamphetamine at multiple locations. By contrast, Mr Hussey, on the available facts, engages items one, and seven of the lesser role category. It may be inferred that he stood to gain commercially per item four of the significant category, but also that his addiction was a contributory factor to his offending. While not an exact fit within item four of the lesser category, it is a mitigating factor. Mr Hussey is also likely to have some awareness of the commercial operation per item five of the significant category, but nothing like the knowledge held by Mr Martin. Accordingly, the Judge erred in treating their culpability as similar.

[18]   Second, I disagree with the Judge’s approach to background factors and in particular her finding that the passage of time was good reason to dismiss the significance of Mr Hussey’s personal trauma.9 To the extent this informed her assessment of the discount available for background factors, this was a material error.

[19]   Having identified material errors, I turn to my assessment of the appropriate sentence. I note for completeness that the Judge’s error in terms of the assessment of offending while on parole would not have been by itself sufficient reason to revisit the sentence.

Assessment

Starting point

[20]   It is common ground that the offending sits within Band two. I consider that Mr Hussey’s low level involvement, though for commercial gain, sits on the cusp of lesser and significant. He provided a venue and actively assisted the methamphetamine production through supply of equipment. Based on this, a starting point for the

9 At [29].

offending of between two and four years is within range. Having regard to his lesser role, and the fact that a starting point of three years was adopted for Mr Martin in relation to a single manufacture charge, I consider that a lower starting point of two years six months is justified. In reaching this view I acknowledge that Mr Martin’s full culpability is likely to be better reflected in the cumulative starting point adopted for his overall methamphetamine offending. Nevertheless, given the differences between his role and Mr Hussey’s role, a lower starting point for Mr Hussey is required.

Aggravating personal factors

[21]   A two month uplift for prior offending while subject to parole and a four month uplift for prior offending appears justified.

Mitigating factors

[22]   I consider a combined discount of 15 per cent for background factors and   Mr Hussey’s addiction is warranted. There is no dispute that Mr Hussey is likely to be suffering under a methamphetamine addiction and I accept that the personal trauma suffered by him (the tragic death of his infant son, the suicide of a sister, and the death of another sister by motor vehicle accident) underlay, in part at least, this addiction. Nonetheless, this is not a case where the addiction has overwhelmed Mr Hussey’s decision making, and so these personal background factors can be afforded only limited weight.

[23]   I accept that there should be a discount to account for the time spent on bail of one month. But I consider the judge’s discount for guilty plea was generous. For my part a discount of 15 per cent was justified for the reason stated by Ms Soich.

[24]    In the result, an indicative term of imprisonment of 25 months would be appropriate. This is based on a 36 month accumulative starting point, comprising 30 months for the offending and an uplift of six months for prior offending, including while on parole. From this I would deduct five months for background factors, and a further month for time spent on EM bail. I then arrive at a sentence of 30 months. Applying then a discount of 15 per cent or five months for the guilty plea, I arrive at an end sentence of 25 months.

[25]   I consider that the difference of five months between this sentence and the District Court sentence to be manifestly excessive. The sentence will need to be adjusted accordingly.

[26]   I have paused to consider whether in all the circumstances there is reason to reduce the sentence still further so that sentence of home detention might be imposed. But I am not satisfied that this is mandated by the sentencing purposes or principles in this case. The offending is serious, and there is a concerning pattern emerging. While the rehabilitation of Mr Hussey is important, this has been adequately accommodated in the sentencing process already.

Result

[27]   The appeal is allowed. The sentence of two years six months’ imprisonment is quashed. A sentence of two years one month is substituted in its place.

Whata J