Mears v Police

[2017] NZHC 932

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2017-442-2
CRI 2017-442-3

CRI 2017-442-4 [2017] NZHC 932

BETWEEN

DANIEL NORMAN MEARS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	9 May 2017
Counsel:	R M Gould for Appellant R Thomson for Respondent
Judgment:	10 May 2017

JUDGMENT OF SIMON FRANCE J

Introduction

[1]      Mr Mears appeals his sentence of two years and five months’ imprisonment.1

He had pleaded guilty to offering to supply methamphetamine, possession of methamphetamine and of cannabis, threatening to do grievous bodily harm, dangerous driving and driving while suspended (x2).  Judge Zohrab took a three year starting point for the drug offending, added three months for the threat and one month for the driving offences. This starting point of 40 months’ is not challenged.

[2]      The focus is on the discounts given to Mr Mears – 20 per cent for a guilty plea, and 10 per cent for personal matters including strong efforts at rehabilitation

and separating himself from a gang environment.

1      R v Mears [2017] NZDC 4858.

MEARS v POLICE [2017] NZHC 932 [10 May 2017]

Discussion

[3]      The primary submission on appeal is that the District Court Judge wrongly focused on discrete steps in the sentencing exercise.  What was needed here was a more  global  assessment  that  recognised  the  truly significant  rehabilitative  gains Mr Mears had made.  The focus, it is submitted, should have been on imposing a sentence that was the most likely to embed the gains and promote continuation of the improvements.

[4]      It is submitted that Mr Mears’ offending can be traced to his addiction, and his gang connections.  He had addressed both and had a very supportive report from a Stopping Violence counsellor.   That report also covered the appellant’s steps as regards his addiction.  The report writer considered Mr Mears’ motivation to be very good, and identified further courses that were available.  Ms Gould also notes that the  original  sentencing  was  adjourned  to  enable  Mr Mears  to  undertake  the counselling, and to complete other directed steps, all of which were done.  It is not suggested the actual sentencing Judge, who was different from the Judge who adjourned the matter, was somehow bound by this, but it is submitted to be a relevant factor.

[5]      I do not consider this submission can succeed on appeal.  I accept it is open, in limited circumstances, for a Judge to step outside the normal sentencing process and take an approach driven by rehabilitation considerations.  The fact that class A offending is involved does not prevent that.  However, if the Judge does not exercise the limited discretion to do that, then I doubt there is much scope to contend on appeal that an error has  been made.   All that has happened is that a restricted discretion to approach the sentencing outside the normal parameters dictated by binding authorities has not been exercised.  It is difficult to see how that could be an error.   I certainly do not consider it to be one here.   Accordingly, I turn to the challenges made to the Judge’s orthodox approach.

[6]      The first challenge is to the credit given for these personal circumstances. Ms Gould submitted 15 per cent rather than 10 per cent should have been given, a difference of two months.   On its own it is not a point meriting adjustment but I

accept  that  if  other  gains  can  be  made,  the  cumulative  effect  might  make  a difference.  That said, in my view it cannot be maintained here either that 15 per cent was   the   minimum   appropriate   discount,   or   that   10 percent   was   manifestly inadequate.  The drug offending spanned nine months and involved numerous offers to supply methamphetamine.  While Mr Mears is to be commended for his reform, the  law  is  clear  that  general  deterrence  remains  the  governing  principle.    A

10 per cent discount was appropriate.

[7]      The  second  ground  of  appeal  is  that  credit  should  have  been  given  for

21 months of curfew. Apparently the curfew was from 7 pm to 7 am.  Mr Mears was able to stay at addresses either in Christchurch or Blenheim depending on work needs.   I do not consider this type of common bail condition demand recognition such that it was an error not to give any.  Indeed it does not seem the idea of credit was even suggested at sentencing.

[8]      Further, Mr Mears was twice alleged to be in breach of that bail.  He disputes these, but it is unclear whether he says there was no breach or it was a case of good excuse for a breach.   Regardless, as Ms Thomson points out, there were also two further occasions where Mr Mears committed driving offences while on that bail. Those facts tell against any credit concerning the bail, and the Judge did not err.

[9]      Finally, I note that a 20 per cent guilty plea credit was given in circumstances of a quite delayed plea, and intercepted text messages establishing the offers to supply.   That was a generous discount.   Overall, a total package representing a

30 per cent discount provides no basis for a successful appeal.

[10]     The appeal is dismissed.

Simon France J