K AND THE KING
[2024] NZHC 2632
•11 September 2024
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-106 CRI-2024-409-107 CRI-2024-409-108
[2024] NZHC 2632
BETWEEN K
Appellant
AND
THE KING
Respondent
Hearing: 11 September 2024 Appearances:
R J T George for Appellant G L Collett for Respondent
Judgment:
11 September 2024
ORAL JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
K v R [2024] NZHC 2632 [11 September 2024]
Introduction
[1] K pleaded guilty to offering to supply methamphetamine (representative);1 offering to supply cannabis;2 possession of methamphetamine for supply;3 possession of cannabis for supply;4 possession of a cannabis pipe,5 possession of a firearm;6 two charges of possessing ammunition;7 two charges of using a document for pecuniary advantage;8 and failing to comply with obligations under the Search and Surveillance Act 2012.9 On 27 March 2024 he was sentenced by Judge Gilbert to three years and six months’ imprisonment.
[2]K appeals his sentence. He says it was manifestly excessive.
The facts
[3] In April 2021, K made two purchases (valued at $100 in total) using a stolen debit card.
[4] The police executed a search warrant at K’s residence in August 2021. They found scales, small plastic bags, ‘tick lists’, and rounds of ammunition. K’s phones were seized and examined, and telco data revealed he had been supplying methamphetamine between January and August 2021. He had also offered to supply an ounce of cannabis. In total he had offered to supply or supplied approximately
26.5 grams of methamphetamine.
[5] In October 2022, police located at K’s address a homemade modified pistol, 127 rounds of .22 calibre ammunition, 3.7 grams of cannabis plant, a glass bong, and
8.85 grams of methamphetamine. Further, scales, two empty point bags, tick lists,
1 Misuse of Drugs Act 1975, s 6(1)(c) and 6(2)(a). Maximum penalty: life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(e) and 6(2)(c). Maximum penalty: eight years’ imprisonment.
3 Misuse of Drugs Act 1985, s 6(1)(f) and 6(2). Maximum penalty: life imprisonment.
4 Misuse of Drugs Act 1975, s 6(1)(f) and 6(2)(c). Maximum penalty: eight years’ imprisonment.
5 Misuse of Drugs Act 1975, s 13(1)(a) and 13(3). Maximum penalty: one year’s imprisonment or a fine not exceeding $500.
6 Arms Act 1983, s 45(1). Maximum penalty: four years’ imprisonment or a fine not exceeding
$5,000.
7 Arms Act 1983, s 22B. Maximum penalty: a fine not exceeding $10,000.
8 Crimes Act 1961, s 228(1)(b). Maximum penalty: seven years’ imprisonment.
9 Search and Surveillance Act 2012, s 178. Maximum penalty: three months’ imprisonment.
$670 cash and a cannabis grinder were located. During the search, K failed to provide PIN codes for his cell phone and iPad.
Sentencing decision
[6] Judge Gilbert, in sentencing K, took a starting point of three years and six months’ imprisonment for the methamphetamine offending. He considered the offending to fall broadly within band two of Zhang v R.10 An uplift of 18 months was applied to account for the additional charges, and a further five per cent uplift for K’s previous convictions and for his offending on EM bail.
[7] To reflect K’s personal circumstances including a history of drug use, the Judge allowed a discount of 17 per cent. For guilty pleas, the Judge allowed a credit of 13 per cent, observing the pleas were entered quite late and in the face of substantial evidence.
[8] Applying a cumulative discount of 25 per cent, the Judge arrived at a sentence of three years and nine months’ imprisonment. From this, an allowance of three months was made for the 121 days the Judge had understood K had spent on EM bail, leading to an end sentence of three years and six months’ imprisonment.
Law on appeal
[9] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.11 The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.12 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.13
10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
11 Criminal Procedure Act 2011, s 250(2).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
13 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant submissions
[10] Mr George for K submits the end sentence is manifestly excessive. First, he submits the allowance for the time K spent on EM bail was mistakenly calculated. Secondly, he seeks an additional deduction to reflect assistance K has provided to the police. In light of that assistance, he makes application for a permanent order suppressing K’s name.
Respondent submissions
[11] Ms Collett for the Crown accepts that additional credit for the time K spent on EM bail should be allowed. She accepts that credit for assistance to authorities is also warranted. The level of deduction is contested. Ms Collett confirms there is no opposition to the application for permanent name suppression.
Discussion
Time spent on EM bail
[12] It is agreed that prior to his sentencing, K spent 519 and not 121 days on EM bail. The 519 days were split into two distinct periods, being 398 days under highly restrictive 24 hour and seven-day curfew conditions and a second period of 121 days. To reflect time spent on EM bail, Mr George proposes a total deduction of seven months, observing that K was on EM bail for over 17 months in total. Ms Collett submits that a six-month deduction is appropriate.
[13] It is established that a mathematical error resulting in a sentence more severe than the Judge intended must be corrected on appeal, even if the sentence imposed was still within the available range.14 That is because it would be unjust to leave such an error uncorrected.15 I accept that a misunderstanding by a sentencing Judge as to the amount of time an appellant has spent on EM bail is akin to a mathematical error and should therefore be corrected.
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
15 Koroheke v R [2012] NZCA 368 at [21].
[14] The Court in C v R,16 Paora v R,17 and Parata v R18 observed credit for time spent on EM bail generally ranges between 30 and 50 per cent. K did breach the conditions of his EM bail during the 398-day period. Standing back, I consider a discount of six months appropriately accounts for the time he was constrained by the strictures of EM bail.
Assistance to authorities
[15] In support of the ground that credit should be allowed for assistance provided to authorities, K seeks leave to adduce fresh evidence in the form of a jobsheet from Detective Lefevre.
[16] The correct approach to determining the admission of further evidence offered on appeal following conviction is well settled and was set out in Lundy v R.19 In Mark v R,20 the Court of Appeal, considering appeals against sentence, observed:21
The principles for assessing the admissibility of fresh evidence for appeals against conviction are now well established. There is no reason why different principles should be engaged where an appellant wishes to adduce fresh evidence for an appeal against sentence… If the evidence is both credible and fresh it should be admitted unless the appellant court is satisfied it would have had no effect on the sentence.
[17] Quite responsibly, the Crown take no issue in this case as to the admissibility of the Lefevre jobsheet and I grant leave for it to be admitted accordingly.
[18] Mr George has referred to two streams of assistance offered by K. The first is outlined in the Lefevre jobsheet. The information provided related to recent burglaries in a named district and resulted in the execution of three search warrants, the recovery of several firearms and ammunition, and with charges being laid. The jobsheet records that further information was provided by K but is yet to be acted upon.
16 C v R [2023] NZCA 99 at [41].
17 Paora v R [2021] NZCA 559 at [53].
18 Parata v R [2017] NZCA 48 at [12] and [15].
19 Lundy v R [2014] 2 NZLR 273 (UKPC) at [120].
20 Mark v R [2019] NZCA 121.
21 At [16].
[19] Little detail has been provided as regards the second “stream” of information provided. What has been confirmed is that it relates to alleged large-scale Class A drug dealing involving a number of persons. Mr George acknowledges that information does not appear to have generated a formal investigation at this stage. He submits it is still potentially useful, so its value ought not be discounted. I agree with that submission. Defendants should be incentivised to assist authorities, irrespective of whether that information has been acted upon.22 Mr George says K has provided the same information to other entities for whom the second “stream” of information may have particular relevance.
[20] Credit for assistance to authorities is commonly considered alongside credit for guilty pleas. In K’s case, the sentencing Judge allowed a 13 per cent discount for his guilty pleas, those pleas having been entered late in the day. The guilty plea credit is not contested on appeal. What is the appropriate credit for K’s assistance?
[21] In quantifying the level of credit for assistance, I have regard to the nature of the assistance given; the level of personal risk to K; and the practical value of the assistance.23 In R v Hadfield the Court of Appeal suggested that a discount of up to 60 per cent may be appropriate in cases where a defendant enters a guilty plea at the first reasonable opportunity and renders or promises to render considerable assistance to the police with respect to co-offenders.24 That 60 per cent discount factored both guilty plea and assistance. The Court said the 60 per cent will only be warranted where the guilty plea is entered at the first reasonable opportunity and the assistance provided is substantial.
[22]In relation to delayed pleas, as arises in this case, the Court of Appeal in
R v Hessell said:25
If the guilty plea is late, then the reduction will be correspondingly reduced. Similarly, if the assistance to the authorities is not particularly significant, the reduction will be reduced.
22 X v R [2023] NZHC 2770 at [41].
23 Williams v R [2011] NZCA 384 at [11]; and FF v R [2017] NZCA 294 at [17].
24 R v Hadfield CA337/06, 14 December 2006.
25 R v Hessell [2009] NZCA 450 at [23].
[23] I consider it is helpful to record the assistance provided by Mr Hadfield. He flew into Auckland International Airport from Japan in February 2005. Customs officials said they wanted to search him. He volunteered that he had drugs concealed on his person. He had brought 800 grams of pure methamphetamine into the country. Once apprehended, Mr Hadfield offered to, and did in fact, assist in the detection and apprehension of four other people who were involved in the importation. Without his assistance, the police would not have discovered their identity. When the others were apprehended and arrested, they were found in possession of $306,000, which the police seized. Mr Hadfield pleaded guilty at the earliest possible opportunity to one count of importing the Class A drug methamphetamine. Two of the persons he named also pleaded guilty prior to trial. Two went to trial. Mr Hadfield gave evidence at their trial. One was convicted and one acquitted.
[24] I accept the first “stream” of assistance offered by K was useful to police. I acknowledge that the recovery of firearms and ammunition from those operating in the criminal underworld is significant in protecting the community. I consider the information provided to be akin to that regularly provided by police informants. Informants tend to be remunerated in return.
[25] K never contemplated making a formal statement or giving evidence against other offenders. He faces little risk of exposure. Any risk he does face can be mitigated by prohibiting the publication of his name. In my assessment the nature of the assistance he has given (akin to an informant); its value (recovery of firearms but otherwise leading to lower-level charges); and the risk to K (minimal), means his assistance does not fall within the same category of assistance provided in Hadfield and would not warrant the same level of credit.
[26] The value of the second “stream” of information is more difficult to assess, but I accept it is worthy of recognition.
[27] The cumulative discount of 55 per cent sought by Mr George on behalf of K is, in my view, substantially disproportionate to the assistance provided. Bearing in mind the 13 per cent allowed for his guilty pleas, this would equate to a discount of 42 per cent solely for assistance, exceeding that in Hadfield. Ms Collett submits that
in quantifying the credit for assistance, the Court should bear in mind that the uplifts imposed by the sentencing Judge were lenient. She also highlights that the second “stream” of information was only provided post sentencing and there is some uncertainty as to its value to the police.
[28] Having regard to what I assess to be the more limited value of K’s assistance contrasted with a case like Hadfield, I consider a discount in the region of 20 per cent is appropriate. That would equate to a combined deduction of 33 per cent to reflect K’s guilty pleas and assistance to authorities.
Result
[29] The appeal is allowed. The sentences of three years and six months’ imprisonment imposed on the charges of offering to supply methamphetamine and possession of methamphetamine for supply are quashed and replaced with a sentence of two years and three months’ imprisonment. All other sentences remain the same.
[30] I accept that the assistance provided by K does give rise a to a real risk to his safety. I am satisfied that it is appropriate to make an order for the permanent suppression of his name and that order is made accordingly.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
A J Bailey, Barrister, Christchurch
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