JANINE MOANA HALL AND THE KING

[2024] NZHC 2587

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-0077 [2024] NZHC 2587

BETWEEN

JANINE MOANA HALL

Appellant

AND

THE KING

Respondent

Hearing:	9 September 2024
Appearances:	G A Walsh for appellant LSP Glaser for respondent
Date of judgment:	9 September 2024

REASONS FOR JUDGMENT OF JAGOSE J

This reasons for judgment was delivered by me on 9 September 2024 at 3.00pm.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

G A Walsh, Barrister, Hamilton Hamilton Legal, Hamilton

HALL v R [2024] NZHC 2587 [9 September 2024]

[1]    Janine Hall appeals the 31 May 2024 decision of Judge T V Clark in the District Court at Hamilton,1 sentencing her to four years’ imprisonment on pleading guilty to possession of methamphetamine for supply.2 At its remote hearing this morning, I dismissed the appeal, with reasons to follow in writing. These are those.

Background

[2]    Ms Hall was actively involved as a “street level methamphetamine dealer” in what the Judge described as “a highly organised commercial drug dealing  operation” in the Waikato region in mid-2021. Living in Ohakune, she was provided with some 170 g of methamphetamine by another member of the group, for whom she supplied  it in her community for her return of some $30,000 to him. Various items consistent with the sale and supply of methamphetamine, including multiple small bags of the substance, were found at her home. Ms Hall was the last of the group to resolve charges brought against them all, including by the Crown offering no evidence in relation to other charges brought against her.

Judgment under appeal

[3]    Judge Clark adopted a starting point of four years and six  months’ imprisonment,3 with reference to the bands and roles as set out in Zhang.4 Observing Ms Hall “would have been well aware of the scale of what it was she was doing”,5 at “a level of sophistication … [not] out of naivety or because of a drug addiction, in fact quite the opposite”,6 her Honour considered Ms Hall’s “close association with [her supplier], her previous experience in relation to this type of offending and her fruitful contacts within her community” all indicated “this was an established network of drug supply”.7 In relation to Zhang’s ‘lesser’ and ‘significant’  bands, the Judge assessed  Ms Hall’s conduct to be “somewhat on the cusp, but leaning towards the low end of significant”: “Ms Hall knew very well what she was doing and did it efficiently”.8

1      R v Hall [2022] NZDC 12518.

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

3      R v Hall, above n 1, at [29].

4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 64 at [125]. The Judge also had regard to a factually similar authority in setting the starting point: Epapara v R [2022] NZHC 2494.

5      R v Hall, above n 1, at [24].

6 At [25].

7 At [26].

8 At [27].

[4]    The Judge then applied a three-month uplift  for Ms Hall’s previous convictions,9 and allowed a discount of 15 per cent for her guilty plea.10 Searching for “other mitigating factors”,11 the Judge “was concerned that Ms Hall has children and was very pleased to see that whānau members will take care of those children while she serves her sentence”.12 The Judge arrived at an end sentence of four years’ imprisonment. She rejected, even if available, any sentence of home detention:13

Ms Hall has previously been sentenced to home detention. It has not deterred her. On the last occasion she was released from prison, she continued as she had before. Nowunfortunately sheis going to haveto suffer the consequences of her poor decision making.

[5]    For Ms Hall, Gerard Walsh argues the Judge’s  sentence was rendered manifestly excessive by reason of her Honour’s failure to allow for other mitigating factors — Ms Hall’s responsibility for her four- and five-year-old children; her motivation to change as evidenced by her completion of rehabilitative courses since being sentenced; and her offer now to render assistance to police — in relation to the first of which Mr Walsh claims a 15 per cent discount consistently with Epapara.14

Fresh evidence

[6]    Ms Hall informally seeks to rely on fresh evidence of her post-sentence certificates of completion for a motivational programme and an  eight-week  bible study. Analogously with r 8.8 of the Criminal Procedure Rules 2012,15 it is well understood prospective evidence to be adduced on appeal is to be “fresh, credible, and cogent”,16 and this requirement serves to balance the interests of the parties and to ensure the just and efficient dispatch of litigation.17 On appeal against sentence:18

9 At [30].

10 At [30].

11 At [31].

12 At [32].

13 At [33].

14     Epapara v R, above n 4, at [35].

15     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; Bain v R [2007] UKPC 33, (2007) 23

CRNZ 71 at [34]; and Thomas v Police [2020] NZHC 2926 at [15]–[17].

16     D v Police [2021] NZSC 2, [2021] 1 NZLR 213 at [40], referring to Lundy v R, above n 15, at [120]; and Mark v R [2019] NZCA 121 at [16].

17     Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at

192.

18     S v R [2024] NZCA 235 at [16], citing Robertson v R [2024] NZCA 162 at [28] (quoting Mark v R, above n 16, at [16]).

[I]f the fresh evidenceis not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellatecourt considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.

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.19 In any other case, I must dismiss the appeal.20 To be successful, an appellant must point to an error — either intrinsic to the Judge’s reasoning, or as a result of further information submitted on appeal — that is material to the exercise of the lower court’s sentencing discretion.21

[8]    The measure of error is the sentence be “manifestly excessive”, a principle “well-engrained” in the Court’s approach to sentencing appeals.22 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.23

Discussion

[9]    The Judge’s starting point, uplift and guilty plea discount each is and in combination are within applicable range, as Mr Walsh accepts.

[10]   Facilitating Ms Hall’s engagement in rehabilitation effort is part of the purpose of her sentence.24 That such purpose is being attained affords no reason retrospectively to adjust her sentence. The argument is circular. While her certificates are both credible and fresh, they could have no effect on her sentence. I will decline their admission.

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

20 Section 250(3).

21 Khon v R [2024] NZCA 354 at [13], referring to R v Shipton [2007] 2 NZLR 218 (CA) at [138]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; and Tamihana v R [2015] NZCA 169 at [14].

22 Tutakangahau v R, above n 21, at [33] and [35].

23 Ripia v R [2011] NZCA 101 at [15].

24 Sentencing Act 2002, s 7(1)(h).

[11]   Neither could Ms Hall’s preparedness now to offer police assistance have effect on her prior sentence. Coming with the last of her group’s disposition, it may be the utility of Ms Hall’s offer comes too late in any event. But, as with Ms Hall’s rehabilitation effort, the Judge cannot be said to have erred in failing  to  have regard for factors not in existence at the time of sentence.

[12]   Turning to the  remaining  ground for  appeal,  with  an eye for  rehabilitation, a sentencing Judge “must take into account the offender’s personal, family, whanau, community, and cultural background”.25 That ‘uncontroversially’ includes impact of imprisonment on an offender’s children, depending on circumstances including “the type of the offending and the circumstances of the child or children”.26 The Supreme Court held “[w]hat is required is a consideration of all of the relevant circumstances which must include the child's interests”.27

[13]   Despite the absence of any particular evidence as to Ms Hall’s children’s contended interests,28 the Judge plainly had regard for those interests in Ms  Hall’s case, expressly in connection with “other mitigating factors”. Her Honour directly referred to her concern for the children’s welfare and her satisfaction for its provision by others. In rejecting home detention’s appropriateness, the Judge’s  observation  of Ms Hall’s recidivism inferentially is to acknowledge Ms Hall’s “continu[ing]  as she had before” and “poor decision making” disqualifies  her also  from any further discount under this head,29 even while the best interests of her children are a “primary consideration”.30

[14]   In Epapara, relied on by Mr Walsh, the offender’s childcare responsibilities were addressed as a factor going to making that offender’s otherwise appropriate sentence “disproportionately severe”.31 Given the Judge correctly observed Ms Hall

25     Section 8(i).

26     Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [50], citing Campbell v R [2020] NZCA 356 at [41].

27 At [56].

28 The probation officer’s pre-sentence report appears the only source of such information, noting “Ms Hall is no longer working as she is now a full-time Mother to her sons”.

29 R v Hall, above n 1, at [33]. The Judge had the probation officer’s pre-sentence report, which recorded “Ms Hall agreed her poor decision making around assisting a friend and taking that into account more than the safety of her children, which led to the offending”.

30 Philip v R, above n 26, at [52].

31 Sentencing Act, s 8(h).

did not qualify for home detention’s consideration, and Ms Hall’s disregard for her children’s interests in offending, her marginally earlier release by reason of any further discount on account of her children does not so qualify.

[15]   The Judge did not err in concluding there were no other available mitigating factors to consider in determining Ms Hall’s sentence. The sentence is not manifestly excessive.

Result

[16]The application to adduce fresh evidence is declined.

[17]The appeal was dismissed.

—Jagose J