Kennedy v The Queen
[2018] NZHC 1931
•31 July 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-172
[2018] NZHC 1931
BETWEEN JOSHUA KENNEDY
Appellant
AND
THE QUEEN
Respondent
Hearing: 23 and 31 July 2018 Appearances:
S Lance for Appellant
H Steele and C Juneja for Respondent
Judgment:
31 July 2018
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 31 July 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
KENNEDY v R [2018] NZHC 1931 [31 July 2018]
[1] Mr Kennedy pleaded guilty in the District Court to a representative charge of supplying methamphetamine and a charge of being in possession of methamphetamine for supply. On 23 May 2018, Judge Jelas sentenced him to two years and one month imprisonment on both charges.1 Mr Kennedy appeals against sentence on the basis that the Judge erred in several ways and this resulted in the end sentence being manifestly excessive.
Factual background
[2] Mr Kennedy pleaded guilty on the basis of an agreed summary of facts. This records that he came to the attention of the police when they were investigating the sale of methamphetamine in the Waimauku area. The police obtained a production order in relation to Mr Kennedy’s cellphone, and discovered several text messages suggesting he was involved in supplying methamphetamine to associates. The text messages indicated Mr Kennedy had supplied one associate with methamphetamine on four occasions between 14 and 27 December 2017. On 19 December 2017, he supplied another associate with 0.2 of a gram of methamphetamine.
[3] The police executed a search warrant at Mr Kennedy’s address early on the morning of 25 January 2018. Mr Kennedy directed the police officers executing the warrant to a box located under the bench in the garage of his address. Inside the box the police found two snaplock bags containing a total of approximately 25.49 grams of methamphetamine in crystal form. The box also contained two sets of scales, a zip lock bag containing smaller “point” bags and a small bag and container both containing methamphetamine residue. In another container in the garage the police found several needles, syringes and alcohol swabs.
[4] When the police searched Mr Kennedy’s vehicle, they located a container under the driver’s seat of the vehicle with $2,350 of cash inside.
1 R v Kennedy [2018] NZDC 10312.
The Judge’s decision
[5] The Judge correctly observed that the offending fell towards the lower end of band 2 identified in R v Fatu.2 This requires a starting point of between three and nine years imprisonment. Taking into account not only the methamphetamine found at Mr Kennedy’s address but also the drug dealing activities revealed by the text messages, the Judge selected a starting point of three years six months imprisonment.
[6] The Judge then applied a discount of four months, or approximately ten per cent, to reflect Mr Kennedy’s previous good character. She applied a further discount of four months to reflect genuine remorse Mr Kennedy had expressed. This produced a sentence of two years ten months imprisonment before taking into account guilty pleas. The Judge applied a full 25 per cent discount for this factor, thereby producing the end sentence of two years one month imprisonment.
Argument on appeal
[7] On Mr Kennedy’s behalf, Mr Lance submits the Judge adopted a starting point that was too high. He submits the Judge ought to have selected a starting point of no more than three years imprisonment.
[8] Mr Lance submits the Judge should also have applied a discrete discount to reflect rehabilitative steps Mr Kennedy had taken since his arrest. This involved him attending counselling and completing a CADS programme.
[9] Taking these factors into account, Mr Lance submitted the sentence ought to have been one of less than two years imprisonment. This would have permitted the Judge to impose a sentence of home detention. Mr Lance contended a sentence of home detention would be appropriate in the present case because of Mr Kennedy’s lack of previous convictions and rehabilitative prospects.
2 R v Fatu [2006] 2 NZLR 72 (CA).
Further evidence
[10] During the hearing on 23 July 2018 I advised Mr Lance that I did not see how the starting point adopted by the Judge could realistically be challenged given the material contained in the summary of facts. The amount of methamphetamine found in Mr Kennedy’s possession, coupled with the contents of the text messages, easily justified a starting point of three years six months imprisonment. The Judge also applied a generous discount to reflect remorse and the maximum discount available for guilty pleas.
[11] I was concerned, however, at comments attributed to Mr Kennedy in the pre- sentence report regarding the circumstances in which he came to be in possession of the methamphetamine found in the container in the garage. I was not able to understand these and was concerned that, properly understood, they may have lessened his overall culpability. This in turn may have called into question the starting point of three years six months imprisonment. I therefore invited Mr Lance to arrange for Mr Kennedy to file and serve an affidavit setting out his explanation regarding this issue in greater detail. I directed that nothing in the affidavit could contradict any of the facts contained in the summary of facts.
[12] Mr Kennedy subsequently filed an affidavit containing the following explanation:
6.In early December 2017 I was asked by a couple of friends whether I would be able to source any methamphetamine for them over the Christmas break. I got in touch with an old associate and he advised me that this would not be a problem.
7.I met with my friend who handed me a plastic container containing some methamphetamine.
8.Leading up to the December Christmas period I sold small amounts to my friends as set out in the summary of facts and text messages.
9.I had paid $1,500 for this methamphetamine and my friend had said that we would ‘sort the rest out later’.
10.It was my understanding that there was approximately 9g leftover from that first transaction. I simply hid this away in the garage, not sure what I was going to do with it.
11.I went away to Northland with my family and other families over the New Year break for a holiday.
12.On the 24th of January 2018 I was at a family barbecue. I received a message from the old associate who said he was, I think, coming down from up north. In hindsight, I think perhaps he was coming to obtain the balance of moneys owing for the first methamphetamine delivery. However, I was not at home.
13.He told me to ‘check the shoes at the front door when I returned home’. When I did get home at approximately 9.30pm I checked the shoes at the front door and there was another package of methamphetamine left there. I had not asked for this methamphetamine, had not paid for it. This time it was in a small zip lock bag.
14.I did not want or need this methamphetamine. I did not want to keep selling methamphetamine, and there was methamphetamine already leftover from what I had obtained for my friends before Christmas. I stashed this away in the garage as well on a ‘out of sight out of mind’ basis. The following morning at approximately 5.30am on the 25th of January 2018 the Police attended at my house. I co-operated with them and showed them where the methamphetamine was hidden.
15.As I understand, it is said to weigh approximately 25g. I thought it was slightly less than this and am unsure whether that weight includes the bag(s) in which the methamphetamine was contained.
[13] Mr Steele for the Crown cross-examined Mr Kennedy regarding his explanation when the hearing resumed on 31 July 2018. Under cross-examination Mr Kennedy said the transactions referred to in his affidavit represented the only occasions on which he had acquired methamphetamine from his associate and on-sold it to acquaintances. He also said he intended to return the nine grams of methamphetamine he had not been able to sell from the first delivery he received from his associate in December 2017. He maintained he had not asked his associate to provide any more methamphetamine, and did not want to keep the methamphetamine he found concealed in the shoe when he returned to his address on the evening of 24 January 2018.
Decision
Starting point
[14] Viewed in the context of the matters contained in the summary of facts, the offending fell squarely within band 2 identified in R v Fatu. The quantity of
methamphetamine that was found at Mr Kennedy’s address was well above the threshold at which band 2 applies. This justifies a starting point between three and nine years imprisonment. Although the quantity of methamphetamine is not the sole criterion, the evidence relating to Mr Kennedy’s drug dealing activity also demonstrated he was a reasonably busy low-level dealer in methamphetamine. The fact that a reasonably significant quantity of cash was also found in his possession also points to the level of his involvement in drug dealing activity.
[15] I do not accept Mr Kennedy’s evidence regarding the circumstances in which he came to be in possession of the methamphetamine found in his garage. I accept that the circumstances in which Mr Kennedy says he came to be in possession of the initial quantity of methamphetamine from his associate are reasonably plausible. I do not accept, however, that Mr Kennedy decided he would return the nine grams of methamphetamine left over after he had supplied quantities of methamphetamine to his associates. Had that been the case, I consider he would have taken active steps to contact his associate in order to return the methamphetamine. Instead, he stored the methamphetamine in a manner consistent with that of a dealer storing it for future sale to customers.
[16] Furthermore, I do not accept Mr Kennedy’s explanation regarding the delivery of methamphetamine to his address on 24 January 2018. He said the methamphetamine he received on 24 January 2018 would have been worth about
$5,000. Mr Kennedy already owed his associate a significant sum of money in relation to the unpaid portion of the purchase price for the first quantity of methamphetamine. It defies belief that his associate would be prepared to supply a further quantity of 15 grams of methamphetamine in the absence of any request for it and with money still outstanding in relation to the first supply. I conclude that Mr Kennedy received the second quantity of methamphetamine because he had asked his supplier to deliver it. The only reasonable explanation for this occurring is that he believed he would be able to sell it.
[17] These factors persuade me that the Judge’s assessment of Mr Kennedy’s culpability was correct, and that the starting point of three years six months imprisonment was within the available range.
Credit for rehabilitative efforts
[18] The Judge included credit for Mr Kennedy’s rehabilitative efforts within the credit she gave for remorse. I do not consider the Judge was obliged to apply a separate discount in relation to any rehabilitative efforts Mr Kennedy has undertaken.
[19] Furthermore, the ultimate question for this Court is whether the end sentence was manifestly excessive. In the present case the Judge gave Mr Kennedy a credit of just under 20 per cent for personal mitigating factors other than the guilty pleas. In a case that involves dealing in Class A drugs that is a significant discount for personal circumstances. I do not consider a further discount to reflect rehabilitative efforts could have been justified.
[20] I appreciate that Mr Lance seeks to have this Court reduce the sentence to below the threshold at which a sentence of home detention would be available. I also accept that Mr Kennedy’s lack of previous convictions means he may well have been a candidate for a sentence of home detention if the end sentence had been one of two years imprisonment or less. I do not see any principled basis, however, on which I can interfere with the sentence. It is well within the available range and cannot be described as manifestly excessive.
Result
[21]The appeal against sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Auckland Counsel:
S Lance, Barrister, Auckland
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