Kee v The King
[2023] NZHC 1133
•11 May 2023
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-412-18
CRI-2023-412-19 [2023] NZHC 1133
BETWEEN MATTHEW EDWARD KEE
Appellant
AND
THE KING
Respondent
CRI-2023-412-20 BETWEEN
MATTHEW EDWARD KEE
AppellantAND
DEPARTMENT OF CORRECTIONS
First Respondent
NEW ZEALAND POLICE
Second Respondent
Hearing: 3 May 2023 Appearances:
P B Redpath for Appellant
M E A Brosnan for Respondents
Judgment:
11 May 2023
JUDGMENT OF EATON J
This judgment was delivered by me on 11 May 2023 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
KEE v R [2023] NZHC 1133 [11 May 2023]
Introduction
[1]On 22 February 2023, Mr Kee appeared for sentencing on nine charges:
(a)possession of methamphetamine for supply;1
(b)possession of cannabis;2
(c)failing to carry out obligations in relation to a computer search;3
(d)supplying cannabis (representative);4
(e)selling cannabis (representative); 5
(f)offering to supply cannabis (representative);6
(g)breaching a protection order;7
(h)unlawful possession of a pistol;8 and
(i)unlawful possession of ammunition.9
[2] On the same date, he was resentenced on charges of possession of methamphetamine, LSD, cannabis oil and cannabis, two charges of unlawful possession of firearms, and a breach of a protection order.
[3]He was sentenced by Judge Large to 23 months’ imprisonment.10
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); maximum penalty life imprisonment.
2 Misuse of Drugs Act, s 7(1)(a) and (2)(b); maximum penalty 3 months’ imprisonment or a fine not exceeding $500.
3 Search and Surveillance Act 2012, s 178; maximum penalty 3 months’ imprisonment.
4 Misuse of Drugs Act, s 6(1)(e) and (2)(c); maximum penalty 8 years’ imprisonment.
5 Misuse of Drugs Act, s 6(1)(e) and (2)(c); maximum penalty 8 years’ imprisonment.
6 Misuse of Drugs Act, s 6(1)(e) and (2)(c); maximum penalty 8 years’ imprisonment.
7 Family Violence Act 2018, s 112; maximum penalty 3 years’ imprisonment.
8 Arms Act 1983, s 50; maximum penalty 3 years’ imprisonment and/or a fine not exceeding $4,000.
9 Arms Act, s 22B; maximum penalty of a fine not exceeding $10,000.
10 R v Kee [2023] NZDC 3388.
[4] Mr Kee appeals this sentence on the grounds that the uplift for the cannabis dealing charges was excessive, greater discounts for personal mitigating factors were warranted, and a sentence of home detention was more appropriate.
Facts
[5]In May 2021, a temporary protection order was made against Mr Kee.
[6] The recent charges emerge from the execution by police of a warrant at a Cromwell address in June of 2021. A search of vehicles on the property, owned by Mr Kee, discovered a bag containing $8,610 in cash, point bags, scales, 5 g of methamphetamine (including the weight of the plastic bags in which the drugs were found), and 9 g of cannabis plant material.
[7] Mr Kee was arrested and refused to provide access to his cell phone when police requested it, despite being warned that doing so was an offence.
[8] Evidence retrieved from the cell phone demonstrated Mr Kee was supplying cannabis from 2 January 2021 to 1 June 2021. He had also offered to supply cannabis to “multiple people,” “multiple times” over different messenger applications over that period. Between 19 May 2021 and 1 June 2021, Mr Kee sold cannabis to the same individual six times, typically selling “100 bags”, quantities of cannabis usually between four to six grams sold for $100.
[9] The pistol, ammunition, and protection order charges arose out of the discovery of a sawn-off .22 rifle in one of the vehicles and, in another vehicle, 18 rounds of
.22 ammunition and two rounds of .223 ammunition.
[10] The charges for which Mr Kee was for resentencing were committed on 1 August 2020, while Mr Kee was serving a sentence of nine months’ supervision. On 27 August 2020, he was sentenced to 350 hours’ community work and a further one year of supervision.
Principles on appeal
[11] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.11 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.12 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.
District Court Decision
[12] Judge Large took the possession of methamphetamine for supply as the lead offence and adopted a starting point of 24 months’ imprisonment, with reference to Crighton v R and Zhang v R.13
[13] An uplift of two months’ imprisonment was applied for the possession of cannabis and search and surveillance charges, and a further uplift of 12 months’ imprisonment for the representative charges of supplying cannabis, selling cannabis, and offering to supply cannabis. An additional six-month uplift was applied for the breach of protection order and firearm charges. Finally, in resentencing Mr Kee, the Judge cancelled the sentence of community work and, in substitution, applied an uplift of three months’ imprisonment.
[14]This resulted in a global starting point of 47 months’ imprisonment.
[15] The Judge provided a discount of 20 per cent in respect of Mr Kee’s guilty pleas. A 10 per cent discount was allowed to reflect personal circumstances as described in the s 27 report. While there was no specific specialist evidence as to addiction, comments by Waitemata health professionals indicated to the Judge that some credit was warranted for addiction and rehabilitative efforts. The discount
11 Criminal Procedure Act 2011, s 250(2) and (3).
12 Ripia v R [2011] NZCA 101 at [15].
13 Crighton v R [2020] NZCA 33; and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
provided is unclear. The Judge initially stated a 20 per cent discount was given but then proceeded on the basis of total discounts of 40 per cent (suggesting a discount of 10 per cent) for addiction and rehabilitation.
[16] An eight per cent uplift was applied for previous convictions, the Judge taking care not to double count the matters before him for resentencing.
[17] Applying a global discount of 32 per cent to the 47-month adjusted starting point, led to a sentence of 31 months’ imprisonment (generously rounded down from
31.96 months). A further eight months’ credit was allowed to reflect Mr Kee having been on electronically-monitored bail for 17 months. That led to an end sentence of 23 months’ imprisonment.
[18] The Judge considered the offending too serious to be appropriately met by a sentence of home detention.
Submissions
Appellant submissions
[19] Mr Redpath, counsel for Mr Kee, first takes issue with the 12-month uplift for the cannabis dealing offences. He submits this offending went hand in hand with the methamphetamine offending and added little to overall criminality or culpability. He submits the offending was driven by a drug addiction and disputes any commercial motivation. By reference to authorities, Mr Redpath submits a six-month uplift is more in range.14
[20] Mr Redpath submits the total discounts should amount to 50 per cent as initially quantified by the Judge. He submits there was ample material demonstrating the causative effect of addiction such that a 20 per cent discount was available. Mr Redpath contends this is reinforced by Mr Kee demonstrating a significant commitment to rehabilitation, completing courses including the Wellness Recovery Action (in respect of which he is looking to be a facilitator), Patua Te Ngangara (a
14 R v Ormsby [2022] NZHC 1711.
methamphetamine programme run by Hoani Waititi Marae), and a Community Alcohol and Drugs course.
[21] Finally, while Mr Redpath recognises the presumption of imprisonment in respect of Class A drug dealing, he submits that given Mr Kee has accepted responsibility for the offending, has engaged constructively with rehabilitation, and his offending was minor in relative terms, a sentence of home detention was the least restrictive appropriate outcome.
[22] Mr Redpath responsibly advised the Court that Mr Kee is presently remanded in custody and awaiting an EM bail application in relation to new charges laid in December 2022. Consequently, if the appeal were to be allowed and a short term sentence substituted, Mr Redpath asks that leave be given to Mr Kee to apply for release on home detention.
Respondent submissions
[23] Ms Brosnan, appearing for the Crown, submits the end sentence was within range and should not be disturbed on appeal.
[24] Ms Brosnan submits the 12-month uplift for cannabis offending was in line with the authorities.
[25] Ms Brosnan accepts that the Judge ultimately adopted a total of 40 per cent in discounts and submits that even if there is a missing 10 per cent, the end sentence is not manifestly excessive given generosity in other areas. Mr Kee has several previous convictions for drug-related offending and four for family violence offending. She contends a 10 per cent uplift would have comfortably been within range. She also notes that no uplift was provided for offending while subject to sentence.
[26] Counsel describes the discount for the s 27 report as particularly generous. Ms Brosnan submits that the report does not detail a background of social, cultural, or educational deprivation – Mr Kee had a stable and supportive environment growing up. While addiction does seem to have had a causative impact on the offending, there is a degree of commerciality undermining his offending. Mr Kee had scales and point
bags, and was dealing at a level where he felt a firearm was necessary for his protection. Ms Brosnan contrasts the discount provided in Berkland v R,15 where the Court was presented with extensive evidence of deprivation, addiction, and rehabilitation.
[27] Ms Brosnan contends that a sentence of home detention was not appropriate. She refers to the presumption favouring imprisonment in s 6(4) of the Misuse of Drugs Act. She submits the focus must be on identifying error on the part of the Judge given the discretionary nature of this analysis, and urges a degree of deference as appropriate. She highlights the presence of a firearm in distinguishing the cases advanced by Mr Redpath. The commerciality component of Mr Kee’s offending, as well as the possession of the firearm in contravention of a protection order, gives rise to a need for a deterrent sentence.
Analysis
[28] No issue is taken with the starting point adopted for the Class A drug dealing offence. The focus of this appeal is on the uplift for the cannabis offending, discounts provided, and whether leave should be granted to apply for home detention.
Uplift for cannabis offending
[29] The extent and therefore the gravity of this offending is difficult to ascertain. Nine grams of cannabis was found in cars associated with Mr Kee. He sold six $100 bags (about 30 g) of cannabis to one individual over a two-week period in June 2021 and was supplying and offering to supply cannabis to a number of individuals between January and June 2021. The amounts supplied and offered for supply are not specified, however, the summary of facts makes reference to a “large contact base of individuals” targeted by Mr Kee. I accept that when considering offers to supply, the Court can assume an offender can “make good” on those offers.16
15 Berkland v R, [2022] NZSC 143, [2022] 1 NZLR 509.
16 Dodd v R [2013] NZCA 138 at [14].
[30] The summary of facts is unhelpful in that it does not approximate, let alone specify, the number of persons to whom offers were made, and it makes no reference to the quantity of cannabis offered.
[31] Mr Redpath describes the cannabis offending as very much a low level aside and as offending more appropriately treated as part and parcel of the methamphetamine offending. I agree the cannabis offending was driven by Mr Kee’s addictions and engaged a low level of commerciality. I agree with the Judge that an uplift was appropriate for this offending.
[32] That Mr Kee was convicted of three cannabis dealing offences does not significantly aggravate the offending. In reality, the three charges relate to the same unlawful act.
[33]A number of cases were advanced by counsel as comparators.
[34] An uplift of 12 months was applied in Mason v New Zealand Police.17 In Mason, the appellant was found in possession of around 60 g of cannabis head and 378 g of cannabis leaf. Elements of the offending occurred while on bail. There was evidence of two offers to supply and unspecified sales. The appellant admitted selling cannabis (and methamphetamine) while on bail. A 12-month uplift reflected this offending as well as a breach of bail and receiving stolen property. The specific weight attributed to the cannabis offending is unclear, and this aspect of the sentence was not addressed on appeal. Although, as submitted by Ms Brosnan, the uplift was not reviewed on appeal, I consider this offending to be more serious than Mr Kee’s.
[35] Both counsel refer to R v Gaitau,18 where an uplift of 12 months’ imprisonment was applied (to a starting point of six years’ imprisonment for methamphetamine offending) on three charges in relation to a Class B drug (GHB) and charges of selling and conspiracy to sell cannabis. The amount of cannabis involved was 532 grams, of which, 448 were sold. Again, I consider that offending to be more serious.
17 Mason v Police [2022] NZHC 1845.
18 R v Gaitau [2016] NZHC 1155.
[36] Ms Brosnan refers to Ms Phillip’s appeal in Zhang v R,19 where an uplift of 12 months was upheld in respect of possession of just under 19 g of cannabis, possession of 16 tabs of the Class B drug, NBOMe (a hallucinogenic drug similar to LSD), and a representative charge of supplying cannabis. Ms Phillips regularly met with customers and would sometimes travel long distances to do so. At least one customer arranged supplies on her behalf. This conduct formed the basis of the representative charges of supplying methamphetamine and cannabis. The quantity supplied by Ms Phillips in her own right was unable to be determined. That offending appears to be more serious than the present case.
[37] In Bailey v R,20 the appellant had been charged with supplying methamphetamine, possessing methamphetamine for supply, and possessing cannabis (19 g) for supply. A six-month uplift for the charge of possessing cannabis for supply was confirmed on appeal. In Bailey, Doogue J referred to Manuka v R,21 where a four- month uplift for supplying cannabis and cannabis oil as well as possession of cannabis and cannabis utensils (uplift to a three year, four month sentence for methamphetamine dealing) was upheld. Mr Manuka offered cannabis for sale on no less than 28 occasions. The cannabis was offered for sale in one gram amounts retailing for $20 each. The 28 offers involved no less than 57 grams (2.1 ounces) of cannabis, and Mr Manuka offered cannabis oil for sale on no less than four occasions. It was offered for sale in one capsule amounts which retailed for $40 each. The four offers involved cannabis oil valued at a total of $160.
[38] Finally, and most recently, in Bateson v R,22 the appellant appealed a sentence of 12 months’ home detention imposed on two representative charges of supplying methamphetamine and charges of selling, offering to supply and being in possession of cannabis for supply. The appellant had sold a total of 4.4 grams of methamphetamine on 44 separate occasions. Intercepted communications revealed that Mr Bateson sold cannabis on two occasions. On the first occasion he sold half an ounce (14 grams), whilst on the second occasion he sold an ounce (28 grams). Mr Bateson also offered to sell an unspecified quantity of cannabis to a third party.
19 Zhang v R, above n 13.
20 Bailey v R [2021] NZHC 2225.
21 Manuka v R [2020] NZHC 1043.
22 Bateson v R [2023] NZHC 915.
On execution of a search warrant at his address, police found 40 grams of dried cannabis head material and drug dealing paraphernalia in the appellant’s bedroom. In a garage, police found two grams of dried cannabis head material and further similar paraphernalia, including a tick list detailing drug sales.
[39] The sentencing judge took a starting point of two years’ imprisonment for the methamphetamine offending and imposed an uplift of 12 months to reflect the cannabis charges. On appeal, Lang J found the cannabis offending involved a degree of commerciality, but there were few transactions and the quantities involved were not significant. Having regard to the totality principle, an uplift of no more than six months’ imprisonment was found to be warranted.
[40] Having reviewed the authorities, and accepting that the summary of facts does not allow a more reliable assessment to be made as to the number of offers to supply cannabis or the quantities involved, I consider the present offending to be most closely aligned with that in Bailey and Manuka. I find the 12-month uplift for the cannabis dealing offending was excessive. A six-month uplift was appropriate.
[41] No issue is taken with the two-month uplift for the charges of possession of cannabis and failing to provide a PIN number, the uplift of six months for the breach of a protection order and unlawful possession of a firearm, or the three-month uplift in substitution for the charges on which Mr Kee was resentenced.
[42] That gives rise to an adjusted starting point of three years and five months’ imprisonment (41 months).
Adjustments for personal mitigating factor
[43] The Judge applied an eight percent uplift for previous convictions. While Mr Kee has several previous convictions for drug possession, he has no previous convictions for drug dealing. He has not previously been sentenced to imprisonment of home detention. In my view, an uplift of eight per cent was therefore stern but must be assessed in light of the generous approach the Judge took in imposing only a three- month uplift in resentencing Mr Kee and in not imposing an uplift for Mr Kee having offended while on sentence. Mr Redpath did not suggest this uplift was excessive.
[44]No issue is taken with the 20 per cent credit for guilty pleas.
[45] There is some uncertainty as to quantification of the credits to reflect Mr Kee’s personal circumstances as outlined in the s 27 cultural report, and his addiction and rehabilitative efforts. With reference to the s 27 report, the Judge fixed a 10 per cent credit “because there is a link between factors raised in that report and the nature of the behaviour to some degree”. The Judge then said: “In respect of the addiction rehabilitation efforts and s 27, I allow 20 and 10 per cent. That gives a total credit of 40 per cent...” However, a 20 per cent credit for guilty pleas, 20 per cent credit for addiction and rehabilitation, and ten per cent credit for the matters raised in the s 27 report, leads to a total credit of fifty per cent. Ms Brosnan responsibly acknowledged the Judge may have intended to allow a fifty per cent credit.
[46] The s 27 report largely addressed the connection between Mr Kee’s drug addiction and his offending. The other issues raised in that report include the death of a friend and the end of a long term relationship as contributing factors to Mr Kee’s addiction, rather than independent factors relevant to his offending. By reference to the Supreme Court decision in Berkland, the credit of 10 per cent for personal factors other than addiction and rehabilitation was undoubtedly generous.23
[47] The real question is whether a 20 percent credit was appropriate to reflect addiction and rehabilitation. There can be little doubt that Mr Kee has a longstanding methamphetamine addiction that played a key role in driving his offending. I am also satisfied that since his arrest, Mr Kee has made significant and determined efforts to rehabilitate. He was on EM bail for 17 months prior to sentencing. During that period, he was at the Ahikaa Trust, a residential facility drug rehabilitation facility in Auckland. He completed the courses as outlined by Mr Redpath, being courses that address not only addiction but other wellness issues. He has been compliant throughout the extended residential rehabilitation programme. He is presently seeking to identify appropriate rehabilitation courses with which to engage on his release.
[48] Drug addiction is the key driver of Mr Kee’s criminal offending. He has demonstrated his commitment towards addressing his addiction over a prolonged
23 Berkland v R, above n 15.
period. It is appropriate that his effects are both recognised and encouraged. I consider a 20 per cent credit in recognition of addiction and rehabilitation to be appropriate in the circumstances.
[49] In my view, a 30 per cent credit, giving rise to a total credit of 50 per cent, is generous and very much at the upper level of the available range. By a fine margin, and accepting the Judge had referred to a credit at that level, I allow an overall credit for personal factors of 50 percent.
[50] That credit must be offset against the uplift for previous convictions of eight per cent, leading to a net credit of 42 per cent. From a starting point of 41 months’ imprisonment, that leads to a sentence of 24 months’ imprisonment. A final reduction of eight months is allowed to reflect the 17 months Mr Kee was on restrictive EM bail. The end sentence is one of 16 months’ imprisonment.
Home detention
[51] Judge Large considered the offending to be too serious to permit a sentence of home detention.
[52] Mr Kee is presently remanded in custody on unrelated charges. Mr Redpath had proposed that the Court defer the decision on this appeal until Mr Kee’s EM bail application is heard in the District Court on 12 May 2023. Alternatively, given Mr Kee does not presently advance a proposal for release on home detention, he asks that leave be granted to Mr Kee to apply for home detention.
[53] There are persuasive reasons operating both for and against home detention in the present case. Addiction is clearly a driving factor of Mr Kee’s offending, and he has made substantial efforts to address its effects in recent times. Given those circumstances, a concrete rehabilitative proposal, for example to a residential facility, for home detention, would be attractive.
[54] Three factors lead me to conclude that a sentence of home detention is not appropriate.
[55] First, Mr Kee offended while serving a rehabilitative, community-based sentence for drug offending and the unlawful possession of firearms. Notwithstanding the olive branch then extended by the court, Mr Kee not only returned to illegal drug use, but embarked on dealing in both methamphetamine and cannabis. To resort to serious offending while subject to a rehabilitative sentence calls for a sentence that focuses on the sentencing principles of denunciation and deterrence.
[56] Second, the current offending involved class A drug dealing and the unlawful possession of a cut down firearm. I accept Mr Kee has historically been a keen hunter. However, he lost his firearms licence about four years ago. He knew his possession of a firearm was in breach of the protection order. He was convicted for two offences concerning unlawful possession of a firearm on 27 August 2020. Mr Kee maintains that his unlawful possession of the firearm is unrelated to his drug dealing. On his explanation, he shows no insight as to the high level of criminality engaged in the unlawful possession of firearms. I find his explanation that a cut-down rifle was kept in his car for pig hunting to be unconvincing. That a drug addict engaging in drug dealing has easy access to a cut-down firearm kept in the very same vehicle in which his Class A and Class C drugs are found, gives rise to public safety considerations. I accept the bolt was not with the cut-down rifle and that the ammunition located was found in another vehicle, however, that does not mean the firearm could not or was not intended to be used in the context of drug dealing. The combination of drugs and firearms will always be met by a sentence that prioritises denunciation and deterrence.
[57]Third, Mr Kee faces a presumption in favour of imprisonment.24
[58] I am not persuaded that the sentence of imprisonment should be commuted to one of home detention. Mr Kee has served over five and a half months of his sentence. He will be released having served eight months, subject to his status on the new charges. He is encouraged to remain on the rehabilitative path.
Result
[59]The appeal is allowed.
24 Misuse of Drugs Act, s 6(4).
(a)The sentence of 23 months’ imprisonment imposed on the charge of possession of methamphetamine for supply is quashed and substituted with a sentence of 16 months’ imprisonment.
(b)The sentence of 12 months’ imprisonment imposed on the charges of sale of cannabis, offering to supply cannabis and possession of cannabis for supply is quashed and substituted with a sentence of six months’ imprisonment to be served concurrently with the sentence of 16 months’ imprisonment.
(c)The other sentences remain as imposed in the District Court as do the release conditions and the term of those conditions.
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Eaton J
Solicitors/Counsel:
Eagles Eagles & Redpath RPB Law, Dunedin
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