Lawrie v The Queen
[2017] NZHC 1222
•6 June 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-000106 [2017] NZHC 1222
BETWEEN DAVID MICHAEL LAWRIE
Appellant
AND
THE QUEEN Respondent
Hearing: 30 May 2017 Appearances:
M Pecotic for the Appellant
P Arnold for the RespondentJudgment:
6 June 2017
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 6 June 2017 at 4.45pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
M Pecotic, AucklandMeredith Connell, Auckland
LAWRIE v THE QUEEN [2017] NZHC 1222 [6 June 2017]
Introduction
[1] The appellant, Mr Lawrie, appeals a sentence of 26 months’ imprisonment
imposed on him by Judge Dawson in the District Court at Auckland on 3 March
2017.1 The sentence was imposed after Mr Lawrie had pleaded guilty to three charges – namely possession of methamphetamine with intent to supply, possession of a class B substance, gamma-butyrolactone (GBL), with intent to supply and breach of home detention.
[2] Mr Lawrie appeals the sentence arguing that it was manifestly excessive. He says that the starting point adopted by Judge Dawson failed to take into account that there was no commerciality to his offending, that insufficient credit was given to him for his guilty pleas, his efforts at rehabilitation and the time he spent on restrictive bail.
[3] The Crown opposes the appeal. It says that the starting point was well within the available range, and that no error can be identified in the way in which Judge Dawson approached the matter. It argues that the appeal should be dismissed.
Relevant facts
[4] On 6 November 2015, the police executed a search warrant at Mr Lawrie’s house. They found three plastic ziplock bags, containing a total of 2.059 grams of methamphetamine in Mr Lawrie’s bedroom, together with a glass bottle which was filled with 72 millilitres of GBL, four glass pipes, commonly used for smoking methamphetamine, and two sets of digital scales. The sum of $732 in cash was found in Mr Lawrie’s wallet.
[5] Mr Lawrie was serving a sentence of home detention at the time the police search was executed. The sentence had been imposed on 10 September 2015 in respect of driving convictions, and, significantly, other drug related offending.
[6] Mr Lawrie was charged. He sought a sentence indication on 2 August 2016. The indication given by Judge Dawson was as follows:
1 R v Lawrie [2017] NZDC 4440.
(a) 25 months’ imprisonment on the lead charge of possession of methamphetamine for supply;
(b) a three month uplift to take into account Mr Lawrie’s criminal history;
and
(c) a discount of four months for guilty pleas, bringing the end sentence to 23 months’ imprisonment. [7] This indication was rejected by Mr Lawrie.
[8] The matter was called on 22 August 2016. This was the third callover. It was on a Monday, and it seems that the matter was to go to hearing during that week. In any event, Mr Lawrie then entered guilty pleas.
[9] The matter came back to Judge Dawson for sentencing on 24 November
2016. However, Mr Lawrie did not appear, apparently for medical reasons. Counsel sought that his appearance be excused, but this request was declined by the Judge, and a warrant was issued for Mr Lawrie’s arrest. Mr Lawrie then made a voluntary appearance in Court on 30 November 2016 and the warrant was cancelled. A new date for sentencing was set, 8 February 2017. The sentencing was then adjourned from 8 February 2017 to 9 February 2017, so that defence could file updated submissions. On 9 February 2017, the sentencing was again adjourned so that an updated report could be provided by Probation Services in relation to a proposed address for any sentence of home detention. In the event, Mr Lawrie was sentenced on 3 March 2017.
Judge Dawson’s sentencing notes
[10] Judge Dawson canvassed the background to the offending, and Mr Lawrie’s criminal record. He considered that the principal sentencing factors were denunciation and deterrence and the need to hold Mr Lawrie accountable for the harm that drug related offending causes in the community. He also noted that Mr Lawrie’s rehabilitation needs had to be considered in the sentencing exercise, and
observed that he had attended a CADS course. The Judge noted that there were aggravating features to the offending, including the amount of methamphetamine (a slight aggravating factor) and that GBL was also found. He considered the principal aggravating factor was that the offending occurred while Mr Lawrie was subject to a sentence of home detention. He also considered that the number and nature of Mr Lawrie’s previous convictions were aggravating factors. In mitigation, he noted that Mr Lawrie had entered guilty pleas, albeit relatively late, and that he had made an effort at rehabilitation. Judge Dawson took the view that the offending fell towards the lower end of band one identified in the leading tariff decision for drug
related offending – R v Fatu.2 He considered that the appropriate starting point for
the lead offence – supply of methamphetamine - was a sentence of imprisonment of
25 months. He then proceeded to uplift that sentence, first, by three months given Mr Lawrie’s criminal history, and then for a further one month, to recognise the additional offending. That took the sentence to one of 29 months’ imprisonment. He then reduced the sentence by three months, to recognise the guilty pleas and the rehabilitation efforts, and imposed the end sentence of 26 months’ imprisonment. Outstanding fines were remitted.
The Appeal – Relevant Provisions
[11] There is a general right of appeal against either conviction or sentence, pursuant to s 244 of the Criminal Procedure Act 2011. In this case, this Court is the first appeal Court. The approach to be taken to the appeal is set out in s 250 of the Act. This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed and that a different sentence should have been imposed. In any other case, the appeal must be dismissed.
[12] The Court of Appeal in Tutakangahau v R3 confirmed that s 250 was not intended to change the previous approach taken to sentence appeals by the Courts under the Summary Proceedings Act 1957. Although s 250 makes no express reference to the words “manifestly excessive”, that principle is well ingrained in the
approach the Courts take to sentence appeals.4
2 R v Fatu [2006] 2 NZLR 72 (CA).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
4 At [33] and [35].
[13] Under the Summary Proceedings Act, there had to be an error vitiating the lower Court’s original sentencing discretion, and appeals against sentence proceeded on an error principle. To establish an error in sentencing, it had to be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional materials submitted to the appeal Court.5
[14] The focus is on the end sentence, and not on the process adopted in reaching that end sentence. If a Judge’s analysis was incorrect, but the end sentence was nevertheless within the appropriate range, the appellate Court should not “tinker” with the sentence imposed.6
Analysis
[15] Ms Pecotic submitted that there was no commerciality to Mr Lawrie’s offending, and that the starting point should be below that set for band one offending in Fatu. Ms Pecotic pointed to submissions the Crown made when the sentence indication was sought. In those submissions, counsel for the Crown accepted that it was clear from cellphone data that Mr Lawrie’s offending was “devoid of any real commerciality, and that he was supplying primarily to his friends/associates who would join him for a smoke”.
[16] In Fatu the Court of Appeal said that, in cases involving supply, there is an obvious culpability difference between those who supply for gain and those who give small quantities of drugs to friends for their personal consumption. It noted that where there is a “complete absence” of commerciality, and an absence of aggravating features, sentencing Judges can sentence beneath the guidelines
suggested for band one offending – namely, two to four years.7
[17] I do not consider that Mr Lawrie’s offending was entirely devoid of commerciality. The amount of methamphetamine found, 2.1 grams, the two electronic scales and the $732 in cash all suggest commerciality. While the cash has
since been returned to Mr Lawrie by the police, in a probation report dated
5 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
6 Ripia v R [2011] NZCA 101 at [15].
7 R v Fatu, above n 2, at [32].
25 October 2016, Mr Lawrie was recorded as stating that the drugs found at his property were not for his own personal use, and that he had “come by it now and then” as it is sometimes used as “currency”. He did, however, admit to having the drug in his possession and said that he offered it to his friends when they came over.
[18] The alleged cell phone data was not put before Judge Dawson at sentencing, nor before me on appeal. There is no reference to that data in the summary of facts to which Mr Lawrie pleaded guilty. Nor it transpired had Ms Pecotic seen the data. Mr Lawrie pleaded guilty to possession for supply. The summary of facts did not detail the nature of the supply. If Mr Lawrie wished to claim that the supply was devoid of commerciality he should have raised this at the time he entered his pleas, and sought a disputed facts hearing if agreement could not be reached. He did not do so.
[19] I am not persuaded that there was a complete absence of commerciality. Rather, it seems to me a case where commerciality was at a low level. On this basis, the starting point adopted by Judge Dawson – 25 months – is well within range.8
[20] Ms Pecotic also argued that Judge Dawson erred by uplifting the sentence for four months - three months for Mr Lawrie’s criminal history and one month for the concurrent offending.
[21] In my judgment, the uplifts were modest, and they could well have been higher.
[22] Mr Lawrie has a very large number of previous convictions. Relevantly, he has been convicted on nine previous occasions for drug-related offending, including
8 R v McLiesh [2009] NZCA 308 - 0.279 grams of methamphetamine, commercial element, starting point of two years’ imprisonment; R v Hughes [2007] NZCA 73 - 0.5 grams of methamphetamine, commercial element, starting point of three years’ imprisonment held to be within range; Preston v R [2010] NZCA 27 – 2.1 grams of methamphetamine, limited commerciality, starting point of two and a half years; R v Tanner [2008] NZCA 210 – 0.1 grams of methamphetamine – offer to sell on one occasion, starting point of two years’ imprisonment; R v Tohu HC Whangarei CRI-2010-088-2691, 7 October 2010 – 2 grams of methamphetamine, little evidence of commerciality, starting point of two and half years’ imprisonment; R v Place HC Rotorua CRI-2007-069-470, 15 May 2007 - 3.3 grams of methamphetamine – limited signs of commerciality – starting point of three years’ imprisonment.
convictions in 2015 for the possession of methamphetamine and utensils for its use, as well as ecstasy.
[23] Further, the associated offences were moderately serious. There was a not insignificant amount of GBL found in Mr Lawrie’s bedroom. The offending occurred whilst Mr Lawrie was on home detention, and in breach of his home detention conditions.
[24] While I agree with Ms Pecotic, that care must be taken when uplifting sentences because of prior offending, in my view, an uplift was appropriate in this case. Mr Lawrie’s previous convictions go to his character; they indicate a predilection by him to commit the particular types of offence of which he has been convicted. Protection of the public was an issue of some importance in the
sentencing.9
[25] Ms Pecotic submitted that the discount of approximately 10 per cent given by Judge Dawson to Mr Lawrie for rehabilitative efforts and his guilty pleas was insufficient, and that an additional discount should have been given to him for the time he spent on bail, subject to restrictive conditions.
[26] In my judgment, only a small discount was appropriate for the guilty pleas. Mr Lawrie did not accept the sentence indication given to him. While he complains that the sentence imposed was a little longer than that indicated in the sentence indication hearing, he ignores that he entered his pleas either at or very close to the last moment. Any discount was necessarily limited because the Crown had by that stage prepared for and was ready to go to trial.
[27] Mr Lawrie did graduate from a rehabilitation course in September 2016. However, in his probation report dated 25 October 2016, it was noted that he was still taking only limited responsibility for his offending, that he was seeking to minimise his involvement and that he was denying any personal use of methamphetamine. In these circumstances, it is difficult to see that Mr Lawrie’s
efforts at rehabilitation were particularly successful.
9 Cooper – Siggleko v R [2012] NZCA 580 at [16].
[28] I accept that Mr Lawrie was on bail and subject to restrictive conditions for a period. He was initially granted bail in late January 2016, and he remained on bail until sentencing on 3 March 2017. The sentencing was, however, delayed because Mr Lawrie failed to appear in Court in November 2016. I do not consider that he can claim a discount when the reason he remained on bail was of his own making. It seems to me that the maximum period he can point to is from late January 2016 to late November 2016 – a period of some 10 months.
[29] The bail was not electronically monitored and there was no curfew as such. Rather, Mr Lawrie had to comply with “the requirements of the residential contract with Te Tanga Manawa O Ahiteaa” and not be away from the bail address “unless in the company of a person approved by Te Tanga Manawa O Ahiteaa, or attending Court”.
[30] There is no evidence before me as to the requirements of the residential contract or detailing how often Mr Lawrie left the bail address in the company of an approved person.
[31] There will often be a need for a Judge, when considering mitigating factors personal to a defendant, to consider the impact of a restrictive bail regime.10 There is, however, no arithmetical formula to be applied if the Judge considers that a discount should be granted in these circumstances. The level of any discount is within a Judge’s discretion.
[32] Judge Dawson did not refer to the time that Mr Lawrie spent on bail. In my view, he should have considered the issue. There is however a difficulty. There is no information before the Judge or me as to how restrictive the terms of Mr Lawrie’s bail bond were in practice. It is apparent from the Court file that the bail was not as restrictive as it might have been. It was not electronically monitored. There was no absolute curfew. It also appears that Mr Lawrie breached the conditions of his bail on one occasion. This was certified by the District Court in July 2016. The Crown
was, however, unable to advise me as to the nature of the breach.
10 R v Faisandier CA185/00, 12 October 2000 at [28]; R v Tamou [2008] NZCA 88; R v Cristia
[2008] NZCA 19.
[33] In the circumstances any discount would have been relatively small, and to grant a discount now would be tinkering with the sentence imposed. In any event any discount Mr Lawrie may have been entitled to for the time spent on bail is balanced by the modest uplift made by Judge Dawson. As noted, the uplift could have been higher.
[34] The sentence imposed is not manifestly excessive.
Result
[35] For the reasons I have set out, the appeal is dismissed.
Wylie J
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