Huxford v The the Queen
[2022] NZHC 750
•12 April 2022
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2022-476-3
[2022] NZHC 750
SAMUEL PAUL HUXFORD v
THE QUEEN
Hearing: 11 April 2022 (teleconference) Counsel:
T J Jackson for Appellant A McRae for Respondent
Judgment:
12 April 2022
JUDGMENT OF ELLIS J
[1] On 17 February 2022, Judge Maze sentenced Mr Huxford to 14 months’ imprisonment on charges of:1
(a)offering to supply methamphetamine (x 7);2 and
(b)offering to supply MDMA.3
[2]Mr Huxford was also convicted and discharged on charges of:
1 R v Huxford [2022] NZDC 4848.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a) [maximum penalty: life imprisonment].
3 Section 6(1)(c) and (2)(b) [maximum penalty: 14 years’ imprisonment].
HUXFORD v R [2022] NZHC 750 [12 April 2022]
(a)possession of methamphetamine;4
(b)possession of cannabis;5 and
(c)possession of a utensil.6
[3] Mr Huxford now appeals his sentence on the ground that the Judge erred when she declined to convert his sentence to one of home detention.
[4]Mr Huxford’s statutory release date is 28 April 2022, in 17 days’ time.
Factual Background
[5] Between June and July 2021, Police intercepted communications by several persons involved in manufacturing and distributing methamphetamine in South Canterbury. These communications—and Mr Huxford’s subsequently obtained text messages and intercepted phone calls—identified Mr Huxford as being involved in the supply of methamphetamine and other drugs. A search of Mr Huxford’s home resulted in the discovery of six grams of cannabis, .54 grams of methamphetamine and two pipes for smoking methamphetamine.
[6] The prosecution case was that he had offered to supply 10 grams of methamphetamine in total.
[7] Mr Huxford is not a stranger to the courts. He has 27 prior convictions, including two for possession of methamphetamine.7 He has received sentences of community work, home detention and supervision for these offences. He has never been sentenced to imprisonment before. He also has two outstanding charges of family violence against him.
4 Section 7(1)(a) and (2)(a) [maximum penalty: 6 months’ imprisonment and $1,000 fine].
5 Section 7(1)(a) and (2)(b) [maximum penalty: 3 months’ imprisonment and $500 fine].
6 Section 13(1)(a) and (3) [maximum penalty: 1 year imprisonment and $500].
7 The remainder are for possession of drug utensils, family violence, failure to comply with bail/community work/home detention requirements, thefts of varying severity, or driving offences.
[8] The Crown acknowledges that Mr Huxford’s drug offending was motivated by his need to feed his own methamphetamine addiction. A pre-sentence report indicates that Mr Huxford has used methamphetamine almost continuously for more than 10 years (he is now 34).
Sentence Indication
[9] Mr Huxford pleaded guilty to the drug charges following a sentence indication given by Judge Maze on 16 December 2021.
[10] Taking the offering to supply as the lead charges, she adopted a starting point of two years and six months’ imprisonment in light of the principles set out in Zhang and the need for parity with the starting point adopted in an indication she had given to Mr Huxford’s co-offender Mr Austin.8 She provisionally indicated discounts of around 35 per cent (10 per cent for addiction, 25 per cent for a guilty plea), giving an endpoint of one year and seven months’ imprisonment.
[11]As regards the possibility of home detention/an EM sentence, her Honour said:
[10] I am not prepared to indicate home detention as a particular outcome. Mr Huxford has had previous sentences of imprisonment without change. He has had ample opportunity to try to change without effect. It will be a matter for consideration in due course. Once again given his responsibilities for children it would be desirable to avoid a further generation being blighted by Mr Huxford’s inability to confront his problems without resort to the dulling impact of sedation by drugs.
…
[14] … if he wants conversion to home detention he would need to provide an evidential basis for the court to be satisfied that he actually is committed to doing that change and he cannot continue with this revolving door cycle of offending in this court.
Sentencing
[12] At sentencing itself, the Judge gave further credit to Mr Huxford for matters revealed in a s 27 report, yielding an overall 40 per cent discount. She also deducted
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
four months’ imprisonment for the two months he had spent on EM bail. The new end sentence was one year and two months’ further imprisonment.
[13] Judge Maze was not willing to convert Mr Huxford’s sentence to home detention, on the basis that “accountability and responsibility will not be satisfied unless imprisonment is imposed”,9 his personal circumstances were different to his co- offenders, and that:10
… your remand in custody has come at the expense of contact with a child but I also note that her best interests are better served by abstinence and the best place for that to happen is a slightly longer period in custody.
Approach on appeal
[14] The appeal is governed by s 250 of the Criminal Procedure Act 2011. In Palmer v R, the Court of Appeal confirmed the same standard of appellate review applies to decisions not to commute a sentence of imprisonment to home detention as any other sentence.11 The appeal must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence and a different sentence should be imposed.12 The focus is on the final sentence reached. An appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.13 Moreover, as the Court of Appeal noted in Palmer:14
… it is frequently difficult for an appellant to identify an error in a refusal to commute a short sentence of imprisonment to an equivalent term of home detention, and any material error would normally have justified intervention under the former approach. As William Young P pointed out in R v Vhavha, there is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D(CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.
9 R v Huxford, above n 1, at [11].
10 At [5].
11 Palmer v R [2016] NZCA 541 at [18].
12 Tuakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
13 At [36].
14 Palmer v R, above n 11 at [19].
Discussion
[15] It is not in dispute that the Judge’s reference in her sentence indication to Mr Huxford having previously been imprisoned was a mistake. It is also not in dispute that this was not corrected by counsel, either at the time of the sentence indication or, later, at sentencing. While the Judge did not expressly refer to it again during the sentencing itself, it can perhaps be inferred that it continued to be an influential factor for her. It certainly appears to have been linked to her decision not to grant home detention at the time of the sentence indication.
[16] In fairness to Mr Huxford, I am prepared to proceed on the basis that the Judge’s error did play some part in her decision not to commute his sentence. It does not, however, automatically follow that a different decision should be made.
[17] The principal argument advanced on Mr Huxford’s behalf in support of the submission that home detention was the right sentence here was that of parity with his “co-offenders”, Mr Rikki Austin and Ms Shanla Aitken who also received sentence indications from, and were ultimately sentenced by, Judge Maze.15
[18] Ms Aitken relevantly faced charges of manufacturing methamphetamine16 (x 1) possession of precursor substances (x 2), supplying methamphetamine (x 3), offers to supply (x 24), possession of equipment for cannabis cultivation (x 1) and attempting to pervert the course of justice (x 1). The supply charge was taken as the lead offence and it was assumed that Ms Aitken had at least 20 grams for that purpose. There was a cumulative 12 months for the manufacturing and six months for attempting to pervert, which was offset by a six month reduction for totality. From the combined starting point of 54 months there was a significant (60 per cent or 32 months) discount for personal factors, including that she was a first time offender and for assistance provided to Police. She had two dependent children and had made rehabilitative efforts; the Crown did not ultimately oppose conversion to nine months’ home detention.
15 I use the word “co-offender” advisedly; Mr Huxford was not jointly charged with them, nor was he involved in their manufacturing operation.
16 The manufacturing in question was low level and wholly unsuccessful.
[19] Mr Austin was relevantly charged with manufacturing methamphetamine (x 1), supplying methamphetamine (x 2), offers to supply (representative) and attempting to pervert the course of justice (x 1). The Judge adopted 12 months for the manufacturing, two and a half years for the dealing and six months for the perverting charge. The 48 month total was reduced to 43 months for totality. Following receipt of what was plainly a very powerful s 27 report prior to sentencing, and giving full credit for guilty plea, the Judge reduced that by approximately 50 per cent, giving an end sentence of 21 months’ imprisonment, with leave to apply for home detention. Leave was later sought. Mr Austin had by then served nearly half of his sentence of imprisonment (at which point he would have been entitled to release) so the time remaining was converted to three months’ home detention.
[20] As it happens, the Judge did, in her sentence indication for Mr Huxford, expressly take into account parity with Mr Austin. It was precisely for that reason that she adopted a starting point of two and a half years on the dealing charges. She was particularly well placed to do so given she had given Mr Austin an indicated sentence earlier that same day. She had also given Ms Aitken an indication the day before.
[21] The reality is that the decision whether to covert to home detention will often turn largely on a defendant’s personal circumstances. Even from my brief summary above it can be seen that the personal circumstances of both Ms Aitken and Mr Austin were very different from those of Mr Huxford. Notwithstanding that Mr Huxford had not previously been sentenced to imprisonment, he had numerous prior convictions (including for possessing methamphetamine), he has not always been compliant with community-based sentences and, more recently, is alleged to have committed further family violence offences while on EM bail at his proposed home detention address. Although his childhood was not without difficulties, those difficulties pale in comparison with those routinely faced by many defendants who come before the courts. Mr Huxford himself has quite perceptively stated that he struggles to see the connection between the matters canvassed in his s 27 report and his offending.
[22] As I have said, Judge Maze was exceptionally well-placed to assess Mr Huxford’s suitability for a sentence of home detention. There is nothing in the
parity point. Despite her apparent mistake about his previous imprisonment, I am unable to conclude that a different sentence should have been imposed.
Conclusion
[23]The appeal is dismissed for the reasons I have given.
Rebecca Ellis J
Solicitors:
JMJ Lawyers, Timaru for Appellant
Crown Solicitor, Timaru for Respondent
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