Martin v R
[2020] NZCA 318
•30 July 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA553/2019 [2020] NZCA 318 |
| BETWEEN | LEX ROSS MARTIN |
| AND | THE QUEEN |
| Hearing: | 19 May 2020 |
Court: | Cooper, Duffy and Edwards JJ |
Counsel: | J J Corby for Appellant |
Judgment: | 30 July 2020 at 10 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentence of 10 years and four months’ imprisonment is quashed and replaced with a sentence of seven years and 10 months’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Edwards J)
On 17 October 2019, Mr Martin was sentenced in the District Court at Auckland to 10 years and four months’ imprisonment for methamphetamine-related charges.[1]
[1]R v Martin [2019] NZDC 20863.
The charges arose out of two sets of offending:
(a)The first set comprised two charges of manufacturing methamphetamine,[2] one charge of possession of precursor materials,[3] one charge of possession of equipment for manufacture of methamphetamine,[4] and one charge of unlawful possession of a pistol.[5]
(b)The second set was for offending committed while on bail for the first set and comprised charges of possession of a pipe,[6] possession of precursor materials,[7] possession of an offensive weapon,[8] giving false information and failing to remain stopped for an enforcement officer.[9]
[2]Misuse of Drugs Act 1975, s 6(1)(b) and 2(a).
[3]Section 12A(2)(a) and (3)(b).
[4]Section 12A(2)(a) and (3)(b).
[5]Arms Act 1983, s 50(1)(a).
[6]Misuse of Drugs Act, s 13(1)(a) and (3).
[7]Section 12A(2)(b) and (3)(b).
[8]Crimes Act 1961, s 202A(4)(a).
[9]Land Transport Act 1998, ss 44 and 52A(1)(a).
The sentencing Judge adopted a starting point of 13 years and six months’ imprisonment for the two lead offences of manufacturing methamphetamine. He did so by reference to band 4 of R v Fatu.[10] The Judge then applied an uplift of 12 months for the balance of the first set of charges and deducted nine months for remorse and 41 months for the guilty pleas. He convicted and discharged Mr Martin on the charges of failing to remain stopped and giving false information and imposed concurrent sentences of six months’ imprisonment for all other charges.
[10]R v Fatu [2006] 2 NZLR 72 (CA).
Mr Martin now appeals on the following grounds:
(a)applying the guidelines in Zhang v R, the starting point of 13 years and six months’ imprisonment was too high;[11] and
(b)further discounts were available for mental health, addiction, duress, rehabilitative prospects and time spent on electronically monitored bail (EM bail).
The offending
[11]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
The first set of charges arose out of a police investigation into the manufacture and supply of methamphetamine in Northland. The operation was terminated on 30 August 2018 with the simultaneous execution of search warrants at two addresses associated with Mr Martin.
At the first address, police located a laboratory with equipment and the three main precursor materials for the manufacture of methamphetamine. Evidence of methamphetamine usage and supply was also found. That included four sets of electronic scales, plastic snaplock bags, plastic containers with drug residue, and methamphetamine and cannabis pipes. A combined total of 17.7 grams of methamphetamine, with a street value of approximately $8,850, was recovered together with gamma-butyrolactone (GBL), a class B controlled drug. Police also recovered two sawn-off shotguns that were loaded and ready to fire.
More laboratory equipment and precursor materials for the manufacture of methamphetamine were found at the second address. Swabs taken at that address confirmed that manufacturing of methamphetamine had taken place.
A few days later Mr Martin was located at an Auckland City apartment. A search of the apartment uncovered a tomahawk, an expandable baton, self-sealing plastic bags containing a white crystalline material, $4,163 in cash, and a handwritten shopping list of items for the manufacture of methamphetamine.
Mr Martin made full and frank admissions to police about his offending. He conceded that he had manufactured methamphetamine at the second address at least six times, and that he would often complete the process at the first address. He also told police that he had manufactured methamphetamine twice at a property near Hokianga between April and May 2018.
Based on Mr Martin’s admissions of the quantities of precursor materials purchased, it was estimated that Mr Martin manufactured a total of 600 grams of methamphetamine. He told police he sold methamphetamine to customers for $7,000 per ounce.
Mr Martin was granted bail in November 2018 to enter a rehabilitation facility in Northland, and in February 2019 he pleaded guilty to the methamphetamine offending. He absconded from the facility in March 2019 and did not appear for sentencing in May 2019.
Mr Martin was located on 31 May 2019 when he was stopped by police due to the manner of his driving. Once stopped, he gave false details, then fled on foot. He was apprehended shortly afterwards. A search of his person revealed a small metal hatchet, a glass pipe with white residue, and 1,158 grams of iodine pills which are commonly used for methamphetamine manufacture.
Guilty pleas were entered to all charges.
Which guideline judgment applies?
The first issue is whether the appeal should be determined by reference to the guideline judgment of Fatu or of Zhang.
The Court in Zhang determined that its judgment should apply only to those who had already been sentenced if two conditions were satisfied, namely:[12]
(a)that an appeal against sentence had been filed before the date the judgment was delivered; and
(b)the application of the judgment would result in a more favourable outcome to the appellant.
[12]At [188].
The sentence was imposed on 17 October 2019. The judgment in Zhang was issued on 21 October 2019. This appeal was filed the following day, on 22 October 2019. Accordingly, on a strict application of condition (a) above, Zhang does not apply.
Nevertheless, in the particular circumstances of this appeal we consider that the revised guidelines in Zhang should apply. We say that for the following reasons.
First, affidavit evidence before the Court establishes that Mr Martin gave instructions to his counsel to appeal as soon as the sentence was imposed, and therefore prior to Zhang being issued. The reason the appeal was not filed straight away was because Mr Martin’s counsel decided to await the decision in Zhang, which was expected to be delivered around that time, and in fact was delivered a few days after Mr Martin’s sentence was passed. We do not criticise Mr Martin’s counsel for waiting on delivery of the judgment. It would be quite wrong to do so when ample time remained before expiry of the appeal period. But for present purposes the decision to await delivery of Zhang before filing the appeal is analogous to counsel error, the “error” being a failure to anticipate the precise terms of this Court’s language in defining the point at which it would be appropriate to apply Zhang. Counsel, of course, cannot be required to see the future and a defendant ought not to be penalised in circumstances such as these.
Second, the appeal was filed promptly, the day after Zhang was delivered. That means that whether Zhang applies comes down to a period of two days. There is an arbitrariness about those circumstances that does not sit well with the object of consistency in sentencing levels,[13] and the Court’s concern to preserve the integrity of the criminal justice system in managing the transition to a new guideline judgment.[14] This is especially so given the fact that in some cases courts deferred sentencing to wait for the anticipated delivery of Zhang.[15]It would be unfair to Mr Martin not to apply Zhang effectively because of the date he was sentenced when there will be others who receive the benefit of that judgment for offending that occurred at about the same time or even earlier.
[13]Sentencing Act 2002, s 8(e); and Zhang v R, above n 11, at [47].
[14]Zhang v R, above n 11, at [191].
[15]See for example Hall v R [2019] NZCA 402; and Roberts v R [2019] NZHC 3319.
Third, for the reasons we explain below, the application of the Zhang guidelines will result in a significantly lower sentence for Mr Martin. That lower sentence is one which is consistent with other sentences imposed around the same time. It would be perverse for Mr Martin to have to serve a longer sentence of imprisonment due to a matter of days and his counsel’s decision to wait until the decision in Zhang was released before filing the appeal.
Accordingly, we have determined that in the special circumstances of this case, the appeal should be determined in line with the judgment in Zhang.
Starting point
The quantity of methamphetamine involved in this case (approximately 600 grams) places Mr Martin’s offending in band 4 of Zhang. That has a range of eight to 16 years’ imprisonment.
The role played by an offender is also important in setting the starting point.[16] The sentencing Judge identified the aggravating factors as including the commercial and sophisticated nature of the offending over a five-month period, the fact that the second set of charges arose out of offending while Mr Martin was on bail and the presence of loaded guns.[17] We agree with the Judge’s assessment.
[16]At [110].
[17]R v Martin, above n 1, at [20].
Balancing against those factors, however, is the fact that Mr Martin was running a solo operation. Although there is a passing reference in the materials before the Court to someone who assisted him at times, there is no evidence that he engaged or directed others in the operation. In that respect, the gravity of his offending is less than those involved in a significant commercial enterprise involving multiple offenders, and less than those who import methamphetamine as part of an organised criminal group.
There is no doubt that Mr Martin’s offending was motivated by commercial gain. The Court in Zhang said that those who offend for commercial gain will not get much succour from the judgment.[18] But commercial gain is a relative concept. Mr Martin’s main objective was to make some money so that he and his partner could repay their debts. There is no evidence that Mr Martin had elected to manufacture methamphetamine as a career, to fund a lavish lifestyle or to generate large profits.
[18]Zhang v R, above n 11, at [11].
With those factors in mind, we consider Mr Martin’s offending falls towards the middle of band 4 in Zhang and would attract a starting point of 12 years’ imprisonment.
The Crown submits that the uplift of 12 months for the other offending was generous to Mr Martin. There is merit in that submission. Nevertheless, the lesser starting point makes the quantum of uplift applied proportionately higher. Overall, we are satisfied that an uplift to a notional 13-year term of imprisonment reflects the gravity of the totality of Mr Martin’s offending.
Mitigating features
The Judge deducted five per cent for remorse and 25 per cent for the guilty plea. Counsel for Mr Martin submits that further discounts were available for mental health, addiction, duress, rehabilitative prospects, and time spent on EM Bail. We take each of those in turn.
First, mental health. An affidavit from Mr Martin’s mother suggests that he was diagnosed with attention deficit hyperactivity disorder (ADHD) at a young age. However, there is no medical evidence confirming that diagnosis and, more importantly, nothing to demonstrate a causative link between ADHD and his offending.
There is little, but nevertheless enough, evidence before the Court to conclude that Mr Martin suffers from a longstanding addiction to methamphetamine. Although Mr Martin’s offending was primarily motivated by financial gain, we accept that addiction played a part by depriving him of some rationality in the choices he made. The fact of his addiction also reduces the relevance of deterrence in determining sentence.[19] Some acknowledgement of the impact of his addiction on his offending by way of discount is appropriate.
[19]At [92].
As to duress, Mr Martin said that he fell under the influence of a known “gangster” who got him involved in manufacturing. Mr Martin also said that he feared for his life, and the welfare of his family because of this person, and that is the reason he kept sawn-off shotguns. However, Mr Martin refused to name this person, and there is no other evidence before the Court corroborating Mr Martin’s account. We place little weight on the claims of duress.
In terms of rehabilitative prospects, the information before the Court shows that Mr Martin has considerable insight into his offending and appears genuinely committed to making permanent change. He is surrounded by pro-social support, and he was previously able to remain drug free for a couple of years. Those are positive factors for Mr Martin’s future rehabilitation and reintegration back into society. However, the quantum of any discount available must take into account that Mr Martin squandered a rehabilitative opportunity by absconding from a treatment facility whilst on bail.
Finally, Mr Martin spent approximately four months on EM bail. Although that could have given rise to a separate discount, in this case Mr Martin’s breach of bail negates any discount available.
The Crown says that any additional discounts would be offset by the fact that Mr Martin did not receive an uplift for his five previous convictions involving methamphetamine.[20] We do not consider a discrete uplift is justified. The convictions are different in kind to the more serious manufacturing charges at hand and could be seen as a reflection of Mr Martin’s battle with methamphetamine addiction.
[20]We note that the sentencing Judge appears to have taken these into account when fixing the starting point. It is preferable that they are addressed as a personal aggravating factor at the second stage of sentencing.
Weighing all additional discounts available in the circumstances, we consider a further discount, of 10 per cent, is available for Mr Martin’s addiction and rehabilitative prospects. That is to be added to the discounts applied by the Judge for remorse (five per cent) and the guilty pleas (25 per cent), in accordance with this Court’s decision in Moses v R.[21] The result is that the end sentence is reduced to seven years and 10 months’ imprisonment.
[21]Moses v R [2020] NZCA 296 at [46].
It is clear that the end sentence of 10 years and four months’ imprisonment was manifestly excessive, and the appeal must be allowed accordingly.
Result
The appeal against sentence is allowed.
The sentence of 10 years and four months’ imprisonment is quashed and replaced with a sentence of seven years and 10 months’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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