Kelly v The the Queen
[2022] NZHC 1298
•3 June 2022
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2022-406-0000004
[2022] NZHC 1298
BETWEEN BEVAN JOHN KELLY
Appellant
AND
THE QUEEN
Respondent
Hearing: 25 May 2022 Counsel:
S A Saunderson-Warner for Appellant J M Webber for Respondent
Judgment:
3 June 2022
JUDGMENT OF SIMON FRANCE J
[1] Mr Kelly appeals a sentence of four years and six months’ imprisonment imposed for a number of drug offences and related offending.1 The grounds of appeal are that the starting point was too high, insufficient credit was given for addiction issues and background/cultural matters, and there should have been a credit for time spent on EM bail.
Facts
[2]The facts are taken from an agreed summary of facts.
[3] The defendant both sold directly to users, and supplied street-level dealers. The period covered by the Police operation was seven months. In that time the identifiable quantity of methamphetamine daily was 147 grams. The summary of facts also states:
1 R v Kelly [2022] NZDC 2720.
KELLY v R [2022] NZHC 1298 [3 June 2022]
There were numerous other offers and supplies in relation to which the quantity is not known.
[4] The charges also include dealing in cannabis (100 grams) and possession of a firearm, namely a Norinco firearm which is similar in appearance to an AK47 assault rifle.
[5] Concerning the method of dealing, the primary contact with purchasers was by phone calls, text and Facebook, using code. The property where Mr Kelly was residing had five cameras to provide full coverage.
[6]Other matters recorded in the summary of facts include:
(a)Mr Kelly said he got back into dealing to protect his brother’s life. This was a proposition he repeated to a psychologist, saying that his brother had a drug debt.
(b)Somewhat inconsistently, the brother and Mr Kelly’s daughter are described as being “drawn into” the defendant’s offending due to familial connection. It may be that prior to this the brother was only a user. The summary expressly states his daughter had not been a user, and the Court is advised she was sentenced on the basis she was pulled into the offending by Mr Kelly.
(c)The summary further states “[t]here was a definite element of commerciality”. The defendant was supplying to at least 20 customers. Sixty-four deposits totalling $42,164 went into Mr Kelly’s account.
(d)The summary commences by detailing a chronology of release from prison and reoffending. It seems Mr Kelly was released in 2013 from a dealing sentence and commenced offending while on parole. This led to conviction and further imprisonment in February 2014. He was released in early 2016. He visited Blenheim with approval in September 2017, but remained in breach of his parole until it ended in
December 2017. The offending covered by these charges starts in December 2017 and overlapping with the end of the previous sentence.
Sentencing
[7] It was common ground the case fell within Zhang v R band two.2 That has a range of two to nine years’ imprisonment, and covers dealing up to 250 grams.
[8] Concerning quantum, the Judge adopted the summary of facts figure of 147 grams, while also noting there were other transactions to which a quantity could not be attached. Mr Kelly was assessed as a lesser participant sliding into a more significant participant.3 He did not work for anyone. He worked with some, supplied others on a larger scale and did some street-level sales. As the Judge said, he was in charge of his own operation.4 A starting point of six years’ imprisonment was adopted with no uplift for the cannabis offending.5
[9] The firearm attracted an uplift of six months as did Mr Kelly’s past offending. When adding that second uplift, the Judge specifically mentioned the pattern of offending very shortly after release on a preceding sentence for the same thing.6 The Judge then stated that reviewing the matter overall he considered a seven year starting point to be a “proportionate” response to all of the offending, particularly having regard to the fact of reoffending so close to release.7
[10] By way of discounts the Crown had originally submitted 10 per cent for the guilty plea but at sentencing moved to 15 per cent, with which the Judge agreed.8
[11] For sentencing the Judge had available a report from a psychologist, an addiction assessment, a s 27 cultural report and a letter from Mr Kelly. The Judge expressed sympathy with the difficult upbringing that had contributed to making
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
3 R v Kelly, above n 1, at [6].
4 At [7].
5 At [28].
6 At [30].
7 At [30].
8 At [32].
Mr Kelly the person he now was. A global figure of 20 per cent for the matters discussed in these reports was applied.9
[12] The Judge declined any credit for time on EM bail given that Mr Kelly cut his bracelet off and absconded for several months.
[13] The end sentence was a product of a final 84 months’ starting point followed by deductions of 30 months, leaving an end sentence of four years and six months.
Starting point
[14] The key authority is Zhang v R where the Court identified a model reflecting the scope of the dealing and the defendant’s particular role.10 The three categories of role therein identified are lesser, significant and leading which explains the sentencing Judge’s assessment of “a lesser participant, moving towards a more significant participant”.11 This aspect is not challenged on appeal. I note, however, that I consider the offending fits comfortably within significant, noting these characteristics of this group:
(a)operational or management function in own operation;
(b)involves others in the operation whether by pressure, influence, intimidation or reward. The summary of facts states this in relation to Mr Kelly’s daughter whose sentencing outcome very much reflected the same underlying reason for involvement;
(c)actual or expected commercial profit;
(d)some awareness and understanding of scale of operation. This is inevitably present when it is the defendant’s own operation.
9 At [33].
10 Above n 2, at [125].
11 R v Kelly, above n 1, at [6].
[15] On Mr Kelly’s behalf, some issue is taken with the commerciality component, but it is not open on appeal to go behind the agreed summary of facts. This observation applies to other matters also raised – the quantity and the unexplained money deposits, albeit the latter were not anyway a significant feature.
[16] Turing to quantity, the summary is clear that the offending involved a known quantity of 147 grams plus numerous other dealings of an unknown quantity. Plainly the Court cannot and did not seek to elevate the offending to a different level by reference to the unknown, but nor is the Court required to view the 147 grams as a ceiling when the summary expressly says there were “numerous” other supplies and offers. There is no precise scale that makes the exact amount crucial. This offending is fairly seen as in the upper half of the range but well short of its upper limits.
[17] Given a range for band 2 of two to nine years, and given a person running his own scheme which in seven months has dealt a quantity comfortably above the mid- point of the range, objectively six years seems a somewhat expected assessment. The cases raised on appeal do not alter that conclusion. Before briefly addressing those, I observe the challenge to the starting point becomes less available once it is recognised that the six year figure also includes culpability for the dealing in cannabis. While not the largest quantity, 100 grams is not irrelevant and accordingly the combined starting point of six years is comfortably within range.
[18] The cases raised on the appeal do not suggest the starting point is out of line. Cases inevitably have variations one from the other, and may indeed suggest a different Judge may have taken a slightly different starting point. But it is important to focus on Zhang as the tariff case. It may be that over time a sufficient body of like cases modify or develop Zhang so as to point to common starting points within the broader range, but more than isolated decisions are needed before that point is reached. It is a development, if it exists, likely to be recognised in some Court of Appeal decision. It must also be recalled that an appellate Court rejecting on appeal a challenge to a starting point is not thereby endorsing the starting point as reflecting a tariff or as setting an upper limit. It is usually just an assessment of the particular case and appeal.
[19] R v Simpson was the first case relied upon.12 The precedent limits of other decisions are illustrated by its context. Mr Simpson had pleaded guilty in the District Court to some charges following a sentence indication. There were then further charges in the High Court and so prior to the District Court sentencing all the charges were transferred for one sentencing exercise. The District Court had indicated a three year starting point for that offending. The High Court Judge observed:
[11] My function now is to assess the extent to which this starting point needs to be increased to reflect the fact that you were part of the drug distribution network that the police uncovered in April and May 2020. My task is made simpler by the fact that counsel have reached agreement regarding this issue. They accept that a starting point of five and a half years imprisonment is appropriate on the charges that were originally laid in this Court. An uplift of one and a half years is appropriate to reflect the charges that were before the District Court.
[20] The point being it was a somewhat unusual context, involving transferred charges for which a starting point had already been indicated, plus an agreed starting point for the further offending which thereby limited the need for the Court to engage in more in-depth analysis. The High Court held the agreed starting point of five and a half years was consistent with Zhang, but it was a brief assessment influenced by the context. Further, the next paragraph begins by noting Mr Sinclair was “not a central figure in the drug network”, thereby distinguishing it from the present case in a significant way. This is not to say that there are not otherwise the similarities Ms Saunderson-Warner has fairly relied upon, but the case in my view is not an apt vehicle to establish the sentencing Judge erred in the present case.
[21] For the reasons given, and having considered the cases to which I have been referred, I am not satisfied the six year starting point for the totality of the drug offending was wrong.
Uplifts
[22] There is no challenge to the uplifts. Because it is relevant, however, to the ultimate question of whether the final sentence is manifestly excessive, I observe the uplift of only six months for past offending was generous to Mr Kelly. The present
12 R v Simpson [2021] NZHC 3548.
occasion is the third sentence for significant drug dealing in the last 10 years. On each occasion he has reoffended while aspects of the previous sentence on which he has been released remain in force. The need for denunciation and personal deterrence are key sentencing principles that these facts engage.
[23] Further, the history of this type of offending goes back further if one chooses to look – for example, a three year nine months’ sentence in 2010 for manufacturing methamphetamine, which also included charges of possessing for supply, and dealing. A much sterner uplift reflecting the principles I identified, and the need to protect the public from such a determined peddler of this drug, was available.13
Addiction/upbringing discounts
[24] Mr Kelly had a disadvantaged upbringing which included physical, sexual and psychological abuse from persons who should have been protecting him and caring for him. There were inevitably consequences in terms of behaviour and development, and periods at institutions such as Epuni Boys Home. Those placements only aggravated the negative experiences and treatment Mr Kelly received.
[25] It is clear Mr Kelly has long had addiction issues. Unfortunately opportunities to address this have not been taken by him, although Mr Kelly professes a current commitment to do so. The role of addiction in this present offending is unclear, and indeed doubtful on his own explanations of why he took up offending this time (his brother’s alleged debt). In this regard, however, in my view it is hard to place too much weight on immediate explanations given an unbroken chain of offending whenever in the community since 2009 at least. Similarly, although the immediate role of addiction may vary in emphasis over time, it is undoubtedly present throughout and links him inextricably to this life of drug dealing.
[26] For these reasons I consider a 20 per cent discount was at the lower end of the available range and could have been more, but not wrong; just as the past offending uplift was the least it could be, but equally was not wrong.
13 See R v Convery CA235/06, 22 December 2006 at [23].
Other discounts
[27] There is no challenge to the 15 per cent credit for the guilty plea although the Crown suggests it is generous. Related to this, Ms Saunderson-Warner raised the issue of delay as a potential mitigating factor. More than three years had elapsed from charge to plea. This suggestion prompted a full response from the Crown detailing the chronology of events, a summary which placed the delay firmly at Mr Kelly’s feet.
[28] My assessment is that the guilty plea discount is not itself challenged, delay was not advanced as relevant at the sentencing, and there is no basis to go there on appeal. There is nothing in the material as presented to the Court to cause me to consider it was a matter meriting recognition.
[29] Concerning EM bail, Mr Kelly was subject to it for three and a half months before absconding and remaining at large for an equivalent period. Ms Saunderson- Warner identifies two High Court cases where in similar circumstances credit has nevertheless been given.14 Section 9(2)(h) of the Sentencing Act provides time spent on EM bail is something that must be taken into account.
[30] I accept the cases relied upon establish that credit is still sometimes given in these circumstances. I note, however, that in Clausen, the time spent on EM bail was at the Grace Foundation where Mr Clausen had not only done well but had been seen by staff as a positive mentor to others. So there was a positive reason to acknowledge the time spent on EM bail.
[31] The second case, Paul, involved a defendant who was on EM bail for five and a half months. He learned that his partner had been admitted to hospital so cut his bracelet off and went to see her. He remained at large for two days before voluntarily handing himself in.
[32] While the cases confirm the ongoing availability of a discount despite absconding, their particular facts are a long way from those of Mr Kelly. Another Judge may have given Mr Kelly a modest credit, but I do not consider it is incorrect
14 R v Clausen [2020] NZHC 3257; and Paul v Police [2019] NZHC 1650.
not to have. The EM bail was of relatively short duration and the Judge at the time warned Mr Kelly he, the Judge, was taking somewhat of a chance in giving him bail at all. Any breach would likely result in custody and that is what happened. The circumstances, particularly the relatively short length of the time on bail and the warning as to the importance of compliance, bring into play the Court’s discretion not to give credit for time spent on bail.15 Accordingly there was no error in the Judge not doing so.
Conclusion
[33] The individual grounds have been addressed. Overall I consider the matters that were favourable to Mr Kelly offset, and indeed outweigh, any potential for a more favourable assessment in other areas. The final sentence is within range and accordingly the appeal is dismissed.
Simon France J
Solicitors:
Crown Solicitor, Nelson for Respondent
15 Hohua v R [2017] NZCA 89 at [40].
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