NATHAN GLEN JAMIESON AND NEW ZEALAND POLICE
[2024] NZHC 3659
•3 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000531
[2024] NZHC 3659
BETWEEN NATHAN GLEN JAMIESON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 December 2024 Counsel:
GD Burns for Appellant
PE Hayward for Respondent
Judgment:
3 December 2024
ORAL JUDGMENT OF DOWNS J
Solicitors/Counsel:
Crown Solicitor, Auckland. GD Burns, Auckland.
JAMIESON v POLICE [2024] NZHC 3659 [3 December 2024]
The appeal
[1] Nathan Jamieson committed a raft of offences, including offering to supply methamphetamine and possession of a loaded firearm. Mr Jamieson received a sentence of 28 months’ imprisonment, which he appeals.1 The appeal must be allowed if there is an error in the sentence and a different sentence should be imposed.2 The ultimate concern is whether the sentence is manifestly excessive.3
Background
[2]Mr Jamieson’s offending is best explained in three sets.
First set
[3] On 12 January 2023 at approximately 9.07 pm, Mr Jamieson was driving a motorbike in Henderson. Police signalled for him to stop. Mr Jamieson did not. Instead, he accelerated and drove away, through a red light. On 23 February 2023, Mr Jamieson was seen riding a motorbike in Massey. Police again signalled for him to stop. Again, Mr Jamieson declined. He drove around the Police car by using the footpath, gave Police the fingers, and drove away.
[4] On 26 May 2023, Police executed a search warrant at Mr Jamieson’s home. They found two small containers, each with methamphetamine. Mr Jamieson’s cellphone was seized, as were two SIM cards. Examination of related data revealed numerous messages directed at the supply of methamphetamine. That in Mr Jamieson’s possession weighed 1.18 grams. The transactions on his phone referred to 3.5 grams of methamphetamine as being offered by him for supply. The total quantity was, therefore, 4.68 grams.
[5] Police found two shotgun cartridges at the home and in a vehicle registered to Mr Jamieson’s partner, a loaded .22 calibre AK47 semi-automatic rifle. There were seven rounds in the magazine.
1 Police v Jamieson [2024] NZDC 21929.
2 Criminal Procedure Act 2011, S 250(2).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
Second set
[6] On 9 February 2023, Mr Jamieson was at The Warehouse with his partner. She was confronted by the store’s loss prevention officer. Mr Jamieson approached that person and asked him if he was abusing his partner. He then encouraged the officer to a fight. The manager trespassed Mr Jamieson and his partner from the store. Mr Jamieson returned the same day. When denied entry, he shouted “I’ll fucking kill you cunt, I’ll come back and shoot you in the head”.
Third set
[7] On 20 April 2024, Police went to Mr Jamieson’s home as they apprehended he had repeatedly breached the conditions of his bail. Mr Jamieson was told he was under arrest. He refused to comply, ran out the back of the house, jumped over a fence, and presumably later, cut off his electronically monitored bracelet.
[8] The next day, Mr Jamieson was seen driving a car. Police signalled for him to stop. He failed to do so. Mr Jamieson narrowly avoided colliding a large truck and trailer. Police saw Mr Jamieson later again the same afternoon. Mr Jamieson again declined to stop. He drove away erratically, swerving across the road and repeatedly driving on the wrong side of the road. Police abandoned their pursuit so as not to endanger other road users. Mr Jamieson was later located hiding in an empty building.
The charges
[9]Mr Jamieson ultimately pleaded guilty to:
a.Offering to supply methamphetamine (4.68 grams).4
b.Obstruction of a Police officer.5
c.Failing to stop (x 3).6
4 Misuse of Drugs Act 1975, s 6(1)(c) and (2); maximum penalty, life imprisonment.
5 Summary Offences Act 1981, s 23(a); maximum penalty, three months’ imprisonment or $2,000 fine.
6 Land Transport Act 1998, ss 52A(1)(a)(ii), 52A(5), 52A(6) and 114(2); maximum penalty; three months’ imprisonment; $10,000 fine and mandatory two-year disqualification.
d.Driving while forbidden.7
e.Failing to carry out obligations in relation to a computer search.8
f.Speaks threateningly.9
g.Unlawful possession of a firearm.10
h.Unlawful possession of ammunition.11
Sentencing
[10] Judge M Pecotic adopted a starting point of 18 months’ imprisonment for the offence of offering to supply methamphetamine. She added nine months for the remaining offences in the first set, including possession of the firearm, and the second set offence. The Judge then added another three months for the third set of offences. The Judge deducted 25 percent for Mr Jamieson’s guilty pleas, five percent for remorse, five percent for rehabilitative efforts and time on electronically monitored bail, and a further five percent in recognition of Mr Jamieson’s addiction to methamphetamine. Finally, the Judge added four months’ imprisonment as much of Mr Jamieson’s offending was committed on bail.
[11]As observed, the final sentence was 28 months’ imprisonment.
A précis of the case on behalf of Mr Jamieson
[12] Mr Jamieson contends the Judge erred in affording no discrete discount for his background. Mr Jamieson relies on a letter he gave to the sentencing Judge. On Mr Jamieson’s behalf, Mr Burns summarises the key aspects of that letter this way:
a.He came from a good home. However, because both parents worked full-time, there was little in the way of parental supervision.
7 Land Transport Act, s 52(1)(c); maximum penalty, $10,000 fine.
8 Search and Surveillance 2012, s 178; maximum penalty, three months’ imprisonment.
9 Summary Offences Act, s 21(1)(a); maximum penalty, three months’ imprisonment or $2,000 fine.
10 Arms Act 1983, s 45(1); maximum penalty, four years’ imprisonment or $5,000 fine.
11 Arms Act, s 45(1); maximum penalty, four years’ imprisonment or $5,000 fine.
b.He began socialising with some older boys from the same neighbourhood when he was at primary school and began drinking alcohol and smoking cannabis when he was 10 or 11 years old.
c.He was expelled from high school in third form after being caught smoking cannabis.
d.He first smoked methamphetamine when he was about 14.
e.He left school with no formal qualifications.
f.He and most of his childhood friends joined the Crips gang when they got older.
g.He grew up in Auckland, disconnected from his taha Māori and without knowledge of the Māori language and customs.
[13] Mr Burns contends this mix should have been recognised by the Judge as contributing causatively to the offending. Relatedly, Mr Burns contends the Judge conflated Mr Jamieson’s background circumstances with his addiction. Mr Burns argues Mr Jamieson’s background warranted a discount of approximately 10 percent (alongside the other discounts given by the Judge).
Analysis
[14] The leading case in this context is Berkland v R.12 In that decision, the Supreme Court recognised a defendant’s background may be relevant to sentencing, particularly if there is a causative connection between it and the commission of the offence or offences. The Court emphasised that much turns on the facts and, unsurprisingly, the nature of the charges.
[15] Mr Jamieson’s letter to the Judge constitutes self-reporting. A more instructive document is the pre-sentence report. It records:
Mr Jamieson identifies as New Zealand Māori of Ngāpuhi descent. He informed that he had a good childhood and good support from his parents and brother. He said his own actions and decisions have put him where he is now.
[16]It adds:
Mr Jamieson has accepted the charges, agrees with the summary of facts, and expressed remorse for his offending. In explanation, Mr Jamieson said that
12 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
his offending was drug fuelled and at his worst he was smoking up to 2 grams a day of methamphetamine.
[17] Mr Jamieson’s use of methamphetamine is described in the pre-sentence report as the “key” characteristic to his offending.
[18] The Judge provided a discount of five percent in recognition of Mr Jamieson’s drug dependency. The Judge also took that into account in setting the starting point of 18 months for the offering to supply methamphetamine offending. The Judge did not, as Mr Burns contends, conflate Mr Jamieson’s background with his addiction. Rather, the Judge considered the latter as a causative contributor to the offending, not Mr Jamieson’s more general background. That view was available, particularly given the content of the pre-sentence report. I do not overlook Mr Jamieson’s letter to the Judge in which he describes essentially being left to his own devices because his parents were working long hours. Mr Jamieson’s account of what followed speaks largely of choice, not circumstance.
[19] As observed at the outset, the ultimate concern is whether the sentence is manifestly excessive. That arguably greater discount should have been provided for background circumstances does not make the sentence manifestly excessive. Mr Jamieson was the beneficiary of two modest starting points: first, in relation to the primary offence of offering to supply methamphetamine, and second, in relation to the firearms offence which was itself serious.
[20] In relation to the former, Cook v R13 and Creighton v R14 (in Zhang v R) suggest a starting point of two years or more was open to the Judge. In relation to the latter, the nine-month starting point was particularly generous as possession of a single firearm for an unlawful purpose typically attracts a starting point of between 24 months’ and 36 months’ imprisonment.15 That in Mr Jamieson’s possession was, of course, loaded.
13 R v Cook [2019] NZHC 2890.
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
15 Campbell v R [2022] NZCA 579 at [18].
[21] It follows the ultimate sentence is not manifestly excessive, a proposition Mr Burns responsibly acknowledged in the course of his helpful oral argument.16
Result
[22]The appeal is dismissed.
……………………………..
Downs J
16 Mr Burns accepted the 28-month sentence was “within range”.
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