Morehu v The Queen
[2020] NZHC 196
•18 February 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI 2020-463-000002
[2020] NZHC 196
BETWEEN HARLEY ROBERT MOREHU
Appellant
AND
THE QUEEN
Respondent
Hearing: 12 February 2020 Appearances:
C Bean for the Appellant
H A Wrigley for the Respondent
Judgment:
18 February 2020
JUDGMENT OF GWYN J
This judgment was delivered by me on 18 February 2020 at 2.15pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
C Bean, Barrister, Hamilton
Crown Solicitor, Pollett Legal Ltd, Tauranga
MOREHU v R [2020] NZHC 196 [18 February 2020]
Introduction
[1]Mr Morehu pleaded guilty to charges of:
(a)Possession of methamphetamine for supply;
(b)Unlawful possession of explosives;
(c)Supply of methamphetamine;
(d)A representative charge of conspiracy with another to supply methamphetamine;
(e)Offering to supply methamphetamine.
[2] On 14 October 2019, Mr Morehu was sentenced by Judge Mabey QC to two years and seven months’ imprisonment.1 He appeals. The appeal is filed out of time, but the Crown agrees that it is in the interests of justice to allow an extension of time.
Facts of the offending
[3] On 6 November 2018, the police conducted a search of Mr Morehu’s address. In his bedroom they located 3.4 grams of methamphetamine,2 digital scales, small plastic bags and $4,320 cash. Additionally, they located eight rounds of shotgun ammunition, and three more boxes in Mr Morehu’s car. After discovery of the methamphetamine, police analysed Mr Morehu’s cell phone activity. It emerged that over approximately seven weeks, he had supplied at least five grams of methamphetamine and offered to supply unknown quantities to various persons over the same period. Further analysis showed that over a ten week period ending 2 December 2019, he had conspired to deal in methamphetamine.
1 Morehu v R [2019] NZDC 20610.
2 Sentencing proceeded on the basis that the 3.4 grams contained only 1.2 grams of the pure drug. Hence, the reference to 6.2 grams of methamphetamine in the sentencing indication and the sentencing notes.
[4] Importantly, for the purposes of this appeal, at the time of the offending Mr Morehu had been on parole for a sentence of three years three months’ imprisonment. He was recalled to prison on 7 November 2018, and remained there until sentencing on 14 October 2019.
Decision on appeal
[5] Judge Mabey provided a sentencing indication on 18 July 2019, which was subsequently accepted.3 The indication was provided on the basis of a total weight of
6.2 grams of methamphetamine. The Judge noted that there was no evidence of addiction, and that Mr Morehu’s conduct indicated commercial drug dealing activity. Consideration of the time spent on recall was rejected:
[54] Mr Bean also made the submission that his client is being punished already for this offending as he has been recalled to prison as he was on parole when charged. I cannot accept that submission. Recall to imprisonment by the Parole Board is not a relevant sentencing consideration. However, it is relevant that Mr Morehu was on parole for drug dealing charges and if the current charges are proved or if there is a plea of guilty there will be an uplift for that factor. Similarly there will also be an uplift for previous convictions.
[6] Accordingly, Judge Mabey indicated a starting point of three years’ imprisonment, with an uplift for offending whilst on parole, previous drug related convictions, and the firearms charges. The uplift resulted in an indication of three years nine months’ imprisonment. The Judge indicated that from that, discounts may be applied for guilty pleas and other factors which Mr Bean might advance at sentencing.
[7] The sentencing notes are brief. Judge Mabey noted that the total quantity of methamphetamine which Mr Morehu was involved in was 6.2 grams, and that his involvement was as a street-level supplier. No pre-sentence report had been prepared.
[8] In accordance with the sentencing indication, Judge Mabey adopted a starting point of three years nine months’ imprisonment.
3 R v Morehu [2019] NZDC 13885.
[9] Judge Mabey considered that a letter written by Mr Morehu sincerely indicated an intention to reform, as well as positive prospects for rehabilitation. He considered that this warranted a discount of three months’ imprisonment. In addition, Mr Morehu was entitled to a full 25 per cent discount for his guilty plea.
[10] Judge Mabey rounded the discounts to 11 months, and imposed a final sentence of two years seven months’ imprisonment.
Approach on appeal
[11] The Court on appeal must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. Otherwise, the Court must dismiss the appeal. If there is an error, the appellate Court will then form its own view of the appropriate sentence.4 The concept of a manifestly excessive (or inadequate) sentence is relevant as a means of examining the significance of the error to decide whether a different sentence should be imposed.5
[12] The parties are in agreement that the recent Court of Appeal decision of Zhang is inapplicable to this appeal.6 On the applicability to appeals against sentence already handed down, the Court of Appeal held:
[188] The approach that has consistently been taken by this Court in previous guideline judgments is that the judgment only applies to sentences that have already been imposed, if and only if two conditions are satisfied: (a) that an appeal against the sentence has been filed before the date the judgment is delivered; and (b) the application of the judgment would result in a more favourable outcome to the appellant.
…
[191] We are satisfied that the approach adopted in the past should also be applied to this judgment. It is a principled approach that preserves the integrity of the criminal justice system.
[13]The appeal was filed on 23 December 2019. So, Zhang is not applicable.
4 R v Shipton [2007] 2 NZLR 218 (CA) at [140].
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].
6 Zhang v R [2019] NZCA 507.
Submissions
Appellant’s submissions
[14] Mr Bean, on behalf of Mr Morehu, submits that credit should have been given for the time which he spent on recall. He draws attention to Mr Morehu’s recall on 7 November 2019, and that sentencing was not until 14 October 2019. Accordingly, Mr Morehu spent 11 months in prison on recall. He refers to the decision of Fane v R, in which Hinton J discussed discounts at sentencing for time recalled.7 Mr Bean submits that Mr Morehu was entitled to such a discount, and a failure to recognise the time on recall amounts to an error, rendering the sentence manifestly excessive. Mr Bean submits that a discount of five months was appropriate.
[15] While Mr Bean agrees that Zhang is not directly applicable to this case, he does submit that “the basis of the approach to this sentencing in the lower Court, was that this offending was a low level street dealer supporting a personal habit. That approach, if adopted could have seen a discrete discount.”
Respondent’s submissions
[16] Mrs Wrigley, for the Crown, accepts that in principle a discount could be justified for the time spent in recall custody. However, she draws attention to the fact that the commission of the offending whilst on parole for similar offending is itself an aggravating factor. She submits that the appeal should not be allowed on this basis, as any uplift given for that aggravating factor was so small that the end sentence itself was not manifestly excessive.
[17] The Crown draws attention to the principle that ultimately, the Court is concerned with the end point of the sentence, rather than the method by which it was reached. Accordingly, whilst it was possible in principle for a discount to be applied, the starting point and uplifts were lenient, and as such, the appeal should be dismissed. In particular, Mrs Wrigley, while acknowledging that the amount on which Mr Morehu was sentenced (6.2 grams) was at the very bottom of Band two in Fatu, notes that placement in the band is not to be dictated solely by weight; other features of the
7 Fane v R [2019] NZHC 408.
offending are relevant. In particular, she draws attention to the length of the offending, being ten weeks, and the representative nature of the three charges. Mrs Wrigley submits that the plainly commercial, and repetitive nature of the offending justifies a starting point higher than three years’ imprisonment. She also points to Mr Morehu being the “Captain” or head member, of the Killer Beez.
[18] Additionally, the Crown says the uplift itself was modest, and rather than the nine month uplift applied, an uplift of a year could have been justified. Accordingly, the Crown submits that a sentence at least five months above what was given was available. Given that, a refusal to give a further discount of five months cannot be regarded as resulting in a manifestly excessive sentence.
Analysis
Discount for time spent on recall
[19] The main point of contention between the parties is whether Mr Morehu is entitled to a discount for the time spent imprisoned due to being recalled, and spending 11 months in prison.
[20] Time spent on recall is not automatically credited in the same manner that time spent on remand is. The recent authorities, and the resulting legal position, has been summarised by Hinton J:8
[36] Section 90 of the Parole Act 2002 provides that any time spent on pre- sentence detention after a person is arrested is deemed to be time served on the sentence subsequently imposed and is therefore counted towards that sentence. This occurs administratively and is not taken into account at sentencing.
[37] But, under s 91(5) and (6), pre-sentence detention does not include time spent in prison following an application for a recall order.
[38] As such, it is clear that the automatic credit given to prisoners who have been on remand prior to being sentenced does not extend to prisoners who have been recalled.
[39] Under s 9(1)(c) of the Sentencing Act 2002, the fact that the offending occurred while the appellant was still subject to a sentence is an aggravating factor and an uplift on that account will generally be appropriate.
8 Fane v R [2019] NZHC 408.
[40] While a prisoner does not receive an automatic discount for a period on recall, as they do for time spent on remand, the Courts have recognised that not receiving a discount can result in a form of double punishment. If a prisoner does not receive credit for their time on recall, they are effectively, at least in part, being punished for their breach of parole twice: first by spending time on recall, then by spending time for the sentence for the breach of their parole.
…
[46] Having read the cases referred to me, it is clear that, especially where the breach of parole has been taken into account in the new sentence, the Courts now generally allow a discount for time spent on recall, so as not to doubly punish a defendant.
[47] The discount is not usually on a one-for-one basis. Had that been intended by Parliament, there would have been a statutory provision to that effect, as there is for a defendant being on remand. Clearly there is some double-up in being recalled to prison because of the parole breach, while also being sentenced for that breach, but to some extent the prisoner’s continuing to serve the outstanding sentence is a consequence, or loss of benefit, rather than an added punishment.
[48] Without the matter having been considered in depth, the Courts seem now to apply an uplift to reflect the particular breach and then allow a credit of approximately two-thirds or a little more, of the period on recall. That seems, as a general approach, a just and proper course.
(footnotes omitted)
[21] I accept Hinton J’s analysis and apply it here. In consequence, I find there was a material error in the District Court Judge’s failure to acknowledge that time spent on recall could be a relevant sentencing submission. That requires reassessment of the sentence.
Other factors relevant to whether a different sentence “should” be imposed
[22] As the Crown has noted, the starting point adopted by the District Court Judge was at the bottom of Band two in Fatu.9
[23] On its face the starting point of three years’ imprisonment was within an acceptable range. However, the acknowledged weight of methamphetamine for which Mr Morehu was sentenced was, as Judge Mabey put it,10 “barely” within Band two of R v Fatu.
9 R v Fatu [2006] 2 NZLR 72 (CA) at [34].
10 R v Morehu [2019] NZDC 1385 at [53].
[24] There was no direct evidence before this Court or the District Court, at the time of the Judge’s sentencing indication,11 to support Mr Bean’s contention that Mr Morehu was dealing at a level simply to feed an addiction. Nevertheless, when he came to sentence Mr Morehu, the Judge referred12 to Mr Morehu’s letter signalling his remorse and a desire to go through the drug treatment unit in prison. It is possible to infer from what the Judge said there that he accepted that Mr Morehu has an addiction. I am prepared to proceed on the basis that is a relevant factor in my consideration of an appropriate sentence.
[25] While the respondent argues that the nine month uplift was lenient, it is difficult to make an assessment of that since the Judge did not apportion an amount to each of the three relevant factors - offending while on parole, previous drug-related convictions and the ammunition charges – or explain his assessment of each. In the circumstances I do not think it is possible to conclude that the total uplift was “lenient”.
[26] Counsel were not able to point me to any directly comparable cases. My own review indicates that the starting point here was not greatly at odds with other, similar cases. But what is also plain from that review, is that within broad parameters, much depends on the circumstances of the particular case.13
[27] Having regard to comparable authorities and the particular circumstances of this case, I am satisfied that a different sentence should be imposed. On the analysis in Fane14 Mr Morehu might have sought a credit of approximately two-thirds or a little more, of the period on recall. That would amount to seven months. Mr Bean seeks only five months. I am satisfied that is an appropriate figure.
11 At [50].
12 R v Morehu, above n 1, at [7] and [8].
13 R v Waiariki [2018] NZHC 31; numerous small supplies of methamphetamine over four months. Starting point four years’ imprisonment. R v Murray [2014] NZHC 1843; supplying 14 grams of methamphetamine. Starting point three years’ imprisonment. R v Hill CA559, 29 February 2009; possession of 6.3 grams for supply. Starting point of three years six months’ imprisonment within available range. R v Read [2013] NZHC 2005; offending spread over three months, street level dealer, found with five grams, but possible to conclude that her dealing significantly exceeded that. Starting point three years six months’ imprisonment. R v Wiki [2013] NZHC 3439; three charges of possession for supply, one of supplying methamphetamine. Mr Wiki classified as a “busy street dealer”, starting point of three years three months’ imprisonment for methamphetamine supply.
14 Fane v R, above n 8, at [48].
Result
[28]An extension of time to appeal is granted.
[29] The appeal against sentence is allowed. I allow a discount of five months for the time spent on recall. The sentence of two years seven months’ imprisonment is quashed and a sentence of two years two months’ imprisonment is substituted.
Gwyn J
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