James v The King

[2024] NZHC 1115

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-31

CRI-2024-463-32 [2024] NZHC 1115

BETWEEN

CASEY EREWHERO JAMES

Appellant

AND

THE KING

Respondent

Hearing:

7 May 2024

(Heard at Tauranga)

Appearances:

A D Hill for appellant T W Afoa for Crown

Date of judgment:

8 May 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 8 May 2024 at 11.00am.

………………………… Registrar/Deputy Registrar

Solicitors:

Andrew Hill Law, Rotorua Gordon Pilditch, Rotorua

JAMES v R [2024] NZHC 1115 [8 May 2024]

[1]    Casey James appeals the 19 January 2024 decision of Judge A J S Snell in the District Court at Rotorua,1 sentencing him to two years and four months’ imprisonment on his guilty pleas to a variety of Crown and police charges.2

Background

[2]    On locating Mr James at an associate’s address on 30 December 2022, pursuant to a warrant for his arrest for breaching bail, police found him in possession of 1.59 g of methamphetamine. Cell phone records obtained pursuant to a subsequent warrant established, over the preceding month, he possessed at least 30 g of methamphetamine for supply. These are the Crown charges.

[3]    After Mr James’ arrest, 5 g of methamphetamine were located in his sunglasses case. He also had a utensil for the consumption of methamphetamine in his possession. He was in breach of standard release conditions’ requirement he report to a probation officer.3 Further charges — of wilful damage, possession of methamphetamine and possession of a second utensil — arose when court security staff scanned his backpack on entry to a courthouse on 22 December 2022. They located 2.48 g of methamphetamine and a pipe in the backpack, after which Mr James became angry and broke a glass panel. These are the police charges.

Judgment under appeal

[4]    Judge Snell adopted both counsels’ suggested starting point of two years and nine months’ imprisonment,4 with reference to the bands and roles as set out in Zhang.5 The Judge considered Mr James’ drug offending quantity of 35 g of methamphetamine

— “operating [his own] little band of customers”6 — was a “small drug-dealing

1      R v James [2024] NZDC 1050.

2      Possession of methamphetamine for supply (x 6) (Misuse of Drugs Act 1975, s 6(1)(f) and (2)). Maximum penalty life imprisonment; possession of methamphetamine (x 2) (Misuse of Drugs Act, s 7). Maximum penalty six months’ imprisonment; possession of utensil for methamphetamine consumption (x 2) (Misuse of Drugs Act, s 13). Maximum penalty one year’s imprisonment or $500 fine; wilful damage (Summary Offences Act 1981, s 11). Maximum penalty three months’ imprisonment or $2,000 fine; breach of prison release conditions (Parole Act 2002, s 71). Maximum penalty one year’s imprisonment or $2,000 fine; and failure to answer District Court bail (Bail Act 2000, s 62). Maximum penalty one year’s imprisonment or $2,000 fine.

3      Parole Act, s 14(1).

4      R v James, above n 1, at [12]–[13] and [20].

5      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 64 at [125].

6      R v James, above n 1, at [21].

scheme towards the bottom end of band 2”.7 The Judge applied a one-year uplift to account for Mr James’ other offending, again “within the range” suggested by counsel.8

[5]    The Judge then applied a “very, very modest” three-month uplift, to account for Mr James’ criminal history and the index offending occurring while on bail.9 He discounted that four-year position to account for Mr James’ guilty pleas (18 per cent),10 and contributory background factors (20 per cent),11 reflecting Mr James had “become, to some degree, institutionalised” and was addicted to methamphetamine (5 per cent).12 The Judge expressly noted the latter discounts were to be regarded in aggregate, to reflect Mr James’ addiction also featured as part of the causative background to his offending.13 Applying those discounts, the Judge rounded Mr James’ end sentence down to two years and four months’ imprisonment.14

[6]    For Mr James, Andrew Hill argues the sentence imposed by Judge Snell is manifestly excessive. No issue is taken with the Judge’s starting point or his uplift of three months for previous convictions. But Mr Hill submits the uplifts for the additional police charges were too high, and the discounts granted were too low. On the former, considering totality, an uplift of six months would have been more appropriate. And Mr Hill contends for separate discounts of 30 per cent on account of Mr James’ background and 20 per cent for his guilty pleas.

Approach on appeal

[7]    I must allow the appeal only if satisfied both there is error in the sentence, and a different sentence should be imposed.15 In any other case, I must dismiss the appeal.16 The measure of error is the sentence be “manifestly excessive”, a principle

7 At [22].

8 At [23].

9 At [24].

10 At [25].

11 At [26].

12     At [26] and [28].

13     At [27]–[28].

14     At [29]–[30].

15     Criminal Procedure Act 2011, s 250(2).

16     Section 250(3).

“well-engrained” in the Court’s approach to sentencing appeals.17 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether the sentence is “manifestly excessive” is to be assessed in terms of the sentence given; the process by which it is reached will rarely be decisive.18

Discussion

[8]Viewed overall, I see no error at all with the Judge’s end sentence.

[9]    Before addressing Mr James’ personal factors, the Judge assessed a starting point of up to three years’ imprisonment was available for his core offending.19 A higher initial starting point of three years and six months’ to four years’ imprisonment was distinctly achievable,20 even “towards the bottom end of band 2”,21 as was the Judge’s target.

[10]   Zhang’s band two is for quantities of less than 250 grams and involves a starting point of two to nine years’ imprisonment.22 Zhang’s guidance is “[a]ccess to the lower sentence starting points may be expected only by those whose role is found to be lesser in degree, and where quantities are at the lower end of the relevant range”.23 The Judge’s initial  starting  point  thus  might  be  thought  generous  to  Mr James, considering his ‘sole trader’ role is “at least significant, and inferentially leading as well”.24

17 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [33] and [35].

18 Ripia v R [2011] NZCA 101 at [15].
19 R v James, above n 1, at [22].

20 A starting point of four years’ imprisonment for a sole trader’s possession of like amounts of methamphetamine for supply is appropriate to “place the offending towards the lower end of band two as adjusted by Zhang”: Joyce v R [2020] NZCA 124 at [22]. A four-year starting point was reduced to three and a half years for a sole trader’s possession of 37 g of methamphetamine for supply to achieve parity with a co-offender (sentenced as having a lesser role): Griffin v R [2020] NZHC 548. See also R v Griffiths [2023] NZHC 357 at [12]–[15], where the Court referred to sole offending involving 80 to 100 g of methamphetamine attracting a four to five year starting point, citing R v Smith [2022] NZHC 1975; Scott v R [2022] NZHC 2274; and Forde v R [2022] NZHC 904.

21 See [4] above.

22 Zhang v R, above n 5, at [125].
23 At [123].

24 Tule v R [2023] NZCA 543 at [17]. The Court, considering offending with four times Mr James’ quantity, allowed “a starting point in the middle band of two… In fact, the middle of a two to nine years’ starting point range is five and a half years.”

[11]   The additional charges have some gravity, not only as exacerbating Mr James’ drug offending, but also as arising in their courthouse context. They reflect Mr James’ disregard for the law and the institutions charged with upholding it. If Mr Hill’s proposed six-month uplift was adequate to recognise them, taken together with the lower end of the available starting point range, that four-year starting point exceeds the Judge’s determination.

[12]   Neither are the Judge’s careful assessments of applicable discounts open to criticism. As not clearly arising at the first reasonable opportunity after initial disclosure,25 and arising relatively late in the proceeding (whether or not after instructing new counsel), the Judge’s 18 per cent discount for Mr James’ guilty pleas is well justified. Mr Hill’s proposed 20 per cent would constitute impermissible “tinkering”.26

[13]   The same criticism may be made of substitution of the Judge’s  aggregate    25 per cent discount for background factors with Mr Hill’s 30 per cent, particularly given the relative lightness of the evidence of contributory factors. In Berkland v R,27 the Supreme Court said  addiction  could  logically  lead  to  a  discount  of  up  to  30 per cent, depending on the extent to which addiction mitigated moral culpability for the offending.28  Mr James’ background is not at that  contributory maximum.   Mr James must bear more moral culpability for his offending.

[14]   The Judge plainly had regard for the background factors’ merger in his discrete 20 and five per cent adjustments. That can be illustrated by applying Mr Hill’s sought discounts to the four-year cumulative starting point, uplifted by the “very, very modest” three months,29 to result in a rounded-up 26-month end sentence. While marginally short of the Judge’s 28-month end sentence, that plainly was within the margins of assessment open to him, and would entirely be obviated if adopting a higher starting point within the available range.

25     R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [29].

26     R v Boyd CA290/04, 11 October 2004 at [38]; and Sweeney v R [2023] NZCA 417.

27     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

28     At [36] and [41].

29 See [5] above.

[15]   I find the Judge’s end point well within a range properly justified by accepted sentencing principle. It cannot be said at all excessive, let alone “manifestly” so.

Result

[16]The appeal is dismissed.

—Jagose J