Nicol v Police
[2022] NZHC 1771
•22 July 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2022-404-165
[2022] NZHC 1771
BETWEEN AMY NICOL
Appellant
AND
NEW ZEALAND POLICE
Defendant
Hearing: 19 July 2022 Appearances:
J Scott for Appellant
S-L Litt for Respondent
Judgment:
22 July 2022
JUDGMENT OF HARVEY J
[on appeal against sentence]
This judgment was delivered by me on 12.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Whangarei Thode Utting, Albany
NICOL v NEW ZEALAND POLICE [2022] NZHC 1771 [22 July 2022]
Introduction
[1] Amy Nicol pleaded guilty to six charges of offering to supply methamphetamine1 and one charge of possession of methamphetamine for the purpose of supply.2 On 9 May 2022, Judge D J McDonald imposed a sentence of two years and four months’ imprisonment.3
[2]Ms Nicol now appeals that decision arguing that the sentencing Judge:
(a)failed to take account of her role in the offending;
(b)imposed an excessive uplift for prior convictions;
(c)gave insufficient weight to her personal mitigating factors; and
(d)ultimately failed to commute the sentence of imprisonment to one of home detention.
The offending
[3] On 9 July 2020, Vodafone New Zealand, in response to a production order, provided Ms Nicol’s telecommunications data to police. That information revealed that on six occasions Ms Nicol offered to supply methamphetamine.4 On 6 June 2020, Ms Nicol received a text from an associate enquiring whether she had methamphetamine for sale, and in reply she offered to supply half a gram. The pair then organised to meet. Later, Ms Nicol received a request from a second unidentified associate, who she offered three grams of methamphetamine for sale. The pair then discussed how much the purchaser already owed Ms Nicol for previous sales.
[4] On 16 June 2020, Ms Nicol received a text from a third unknown associate asking for a “whole” because they had “a couple pple wanting”. Ms Nicol advised that she could. The purchaser then asked if she could “do 2”. Several phone calls
1 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum penalty of life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). Maximum penalty of life imprisonment.
3 Police v Nicol [2022] NZDC 8157.
4 The associates to whom Ms Nicol offered to supply methamphetamine are unknown, although their cellphone numbers formed part of the data handed over by Vodafone.
followed, and Ms Nicol offered to supply two grams of methamphetamine.
[5] On 26 June 2020, Ms Nicoll received a phone call from a fourth unknown associate and several text messages, which included them saying “yay birthday puffs haha” and asking her to “plz save 2”. Ms Nicol replied, “see you soon” and offered to supply two grams of methamphetamine. The next day that same associate sent a text asking “3?” Ms Nicol replied “yip”. The associated asked if it was “for a tun?” Ms Nicoll responded “sweet” and offered to supply three grams of methamphetamine for
$1,000. Several days later the same associate text Ms Nicol asking “cn u bring 3 or 7 if u cum in before me”. The pair organised where to meet. Ms Nicol offered to supply at least three grams of methamphetamine.
[6] Police obtained a warrant to search Ms Nicol’s address. They found a small container holding two grams of methamphetamine sitting on her bed and a small snap- lock bag containing 0.4 grams on a chest of drawers.
District Court sentencing
[7] Judge McDonald noted the presumption in s 6(4) of the Misuse of Drugs Act 1975 that Class A drug offending calls for a sentence of imprisonment.5 The Judge considered that 15.9 grams of methamphetamine fell within band 2 of the guideline judgment, Zhang v R, where starting points range between two and nine years’ imprisonment.6 Turning to Ms Nicol’s role, the Judge did not accept that she was a low level drug dealer profiting only to sustain her own drug addiction.7 Ms Nicol was dealing in grams, rather than point bags, and the evidence suggested that at least one purchaser was on-selling the drugs.8 In addition, her self-reported addiction was uncorroborated by any independent evidence.9 The Judge adopted a starting point of two years and 10 months’ imprisonment.10
[8]Judge McDonald then applied an uplift of four months to take into account Ms
5 Police v Nicol [2022] NZDC 8157 at [11].
6 At [11]–[13].
7 At [13]–[15].
8 At [14].
9 At [15].
10 At [17].
Nicol’s three prior convictions for dealing methamphetamine.11 He then applied discounts of 15 per cent for Ms Nicol’s guilty plea and 10 per cent for time spent on EM bail.12 The result was an end sentence of two years and four months’ imprisonment, which is “above the home detention threshold”.13
Approach on appeal
[9] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.14 The focus is on the sentence, rather than the process by which it is reached.15 The Court will not intervene where the sentence is within the range established by accepted sentencing principles.16 To this end the concept of a “manifestly excessive” sentence is well settled and there is no reason not to use it.17
Application to admit fresh evidence
[10] It is also well settled that if the proposed evidence is credible but not fresh, it may still be admitted if a miscarriage of justice would arise from its exclusion.18 The overriding test is whether the interests of justice require admission.19 The evidence Ms Nicol seeks to be admitted includes a letter from a clinician at Community Alcohol and Drug Services (“CADS”) and an email chain between that clinician and one of Ms Nicol’s lawyers. The letter depicts a Waitemata District Health Board (“DHB”) and CADS letterhead, and the email is sent from Waitemata DHB email address. There is no reason to doubt the credibility of the material.
[11] The letter from the clinician confirmed Ms Nicol’s attendance at a treatment assessment summary, five action group sessions and one individual counselling session between 12 July 2021 and 4 May 2022. There were gaps in her attendance. In the email chain, the clinician explained that those gaps were attributable to COVID-
11 At [17]–[18].
12 At [19]–[20].
13 At [20].
14 Criminal Procedure Act 2011, s 250(2).
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
16 At [36].
17 At [35].
18 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
19 At [119].
19 lockdowns and Ms Nicol’s social anxiety. Ms Nicol’s lawyer further asked the clinician to comment on her engagement with the programme but there was no reply to that aspect of the email. The reason why is not apparent.
[12] Mr Scott, for Ms Nicol, properly accepted that the evidence is not fresh, in the sense that counsel could have obtained it for sentencing. He submitted that it is nevertheless in the interests of justice to admit it. Notwithstanding the clinician’s failure to comment on Ms Nicol’s engagement, this evidence is independent and supports Ms Nicol’s account of her offending being addiction-driven. I accept that it is in the interests of justice that the letter be admitted.
Did the Judge adopt a starting point that was too high?
Appellant’s submissions
[13] Mr Scott submitted that the Judge overstated her role in the offending. He contended that the inference to be drawn from the small quantity of methamphetamine possessed by Ms Nicol and the price she offered to supply it demonstrated that she was a street level dealer with a lesser role. Counsel argued that Ms Nicol’s offending was addiction-driven, as noted in the Summary of Facts. As foreshadowed, Mr Scott sought and was granted leave to adduce fresh evidence of Ms Nicol’s engagement with CADS while on EM bail.
Respondent’s submissions
[14] Ms Lett, for the Crown, emphasized that Ms Nicol was dealing in gram amounts. She submitted that this is suggestive of an expected commercial profit. She further contended that the text messages indicate that Ms Nicol was aware that she was dealing methamphetamine to a group of end users, or that the purchaser would be on-selling it. Ultimately, Ms Lett submitted that the starting point imposed was within the available range.
Discussion
[15]I accept the Judge’s finding that Ms Nicol’s offending fell within band 2 of
Zhang v R, which captures methamphetamine dealing in quantities between five and
250 grams.20 Appropriate imprisonment sentence starting points fall between two and nine years.21 The issue is where Ms Nicol’s offending falls within band 2, taking into account the quantity of methamphetamine and her role. The starting point is quantity and, in this case, Ms Nicol pleaded guilty to dealing 15.9 grams of methamphetamine. This then places her offending near the lower of band 2. Where counsel disagree is the role played by Ms Nicol, given that the part an offender plays is a critical element in assessing culpability.22
[16] It is evident that all the information relevant to role was not before Judge McDonald. He concluded that her claimed addiction motivated offending was self- reported. On appeal this Court has the benefit of independent evidence that Ms Nicol attended treatment sessions at CADS. This supports her account, recorded in the Summary of Facts, that she was dealing methamphetamine to support her own addiction and that some of the methamphetamine found at her address was for her own consumption. Similarly, consistent with that account is that police found methamphetamine-consuming paraphernalia in her bedroom.
[17] The Judge was provided with a statement from Ms Nicol’s mother, who also attended the appeal hearing, which he accepted “at face value”. Ms Nicol’s mother said that Ms Nicol told her she was using methamphetamine with associates in Auckland. She then said that in May 2017, Ms Nicol began a relationship with a “well known criminal” and moved to Whangarei. She continued using methamphetamine there. Soon after on 21 March 2018, Ms Nicol was sentenced to home detention for supplying methamphetamine. Ms Nicol’s mother’s view is that her daughter is addicted to methamphetamine, which she attributes to unresolved grief associated with her father’s suicide. Ms Nicol’s mother’s evidence is corroborated by that discussed previously. In totality the evidence before this Court is sufficient to establish that Ms Nicol’s offending was, at least in part, driven by addiction.
[18] While Ms Nicol was dealing methamphetamine measurable in grams, that does not elevate her role beyond that of a street level dealer. There is no evidence that her
20 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
21 At [125].
22 At [104].
drug dealing was in concert with any others, nor that those who she offered to supply methamphetamine were subordinates in a chain of command. I accept the Judge’s comments that the methamphetamine Ms Nicoll sold could be on-sold or supplied to third parties. That possibility is accounted for by the offending being classified as band 2. Had she been dealing in quantities described as the “lowest level”, a lesser starting point within band 1 would have been appropriate. In my assessment, Ms Nicol appears to have been operating individually and motivated by her own addiction. While some financial incentive must have been involved, that was not the only driver. For these reasons, I consider that her role is more appropriately classified as lesser.
[19] Ms Lett referred to Bailey v R,23 where the offender organised to supply 15.5 grams of methamphetamine.24 Doogue J considered a starting point of three years and three months’ imprisonment appropriate.25 I consider that Bailey is distinguishable. Doogue J found that the offender was not “dependent or addicted to methamphetamine based on his own statements that he could stop when required” and that “he did not experience any withdrawal symptoms after waking up in jail.”26 Both Ms Nicol and her mother’s accounts, supported by independent evidence, confirm that she is addicted to methamphetamine.
[20] Mr Scott referred to three cases where offenders dealt in similar quantities of methamphetamine to Ms Nicol and had a similar role, in all of which the starting point was two years and six months’ imprisonment.27 The most recent case cited was Ripia v R,28 where the appellant pleaded guilty to three charges of being in possession of methamphetamine for supply.29 The offending involved approximately 21 grams of methamphetamine over a six month period.30 Lang J found that the appellant’s role “appears to have been that of a street level dealer selling methamphetamine both for
23 Bailey v R [2021] NZHC 2225.
24 At [13].
25 At [55].
26 At [42].
27 See Dunn v Police [2020] NZHC 316; Pryor v Police [2022] NZHC 1011; and Ripia v R [2022] NZHC 984. In Dunn the appellant pleaded guilty to 22 charges of possession of methamphetamine for supply after texting associates and agreeing to supply 24.7 grams of methamphetamine. The starting point of two years and six months’ imprisonment was not challenged on appeal. The appeal concerned the appropriate discount for addiction. Gordon J considered a discount of 20 per cent warranted.
28 Ripia v R [2022] NZHC 984
29 At [1].
30 At [26].
commercial gain and to support his own use of the drug.”31 He adopted a starting point of two years and six months’ imprisonment.32
[21] My conclusion, having reviewed the examples cited, is that a starting point above two years and six months’ imprisonment could not be justified.
Did the Judge apply an excessive uplift for previous convictions?
Appellant’s submissions
[22] Mr Scott submitted that the Judge applied an excessive uplift for Ms Nicol’s previous convictions. He contended that the Judge erroneously considered that her prior sentence of six months’ home detention for that offending was “lenient”. In any event, counsel argued that the four month uplift was excessive, insofar as it constituted two thirds of the sentence for that offending.
Respondent’s submissions
[23] Ms Litt submitted that the Judge was entitled to apply an uplift due to Ms Nichol’s previous offending, while noting that an uplift of three months was not uncommon. Counsel also contended that, while the uplift imposed by the Judge was at the upper end of the scale, it was nonetheless within the orthodox range.
Discussion
[24] The basis for an uplift for previous convictions is threefold. Previous convictions are relevant to character and culpability, are an indicator of the risk of reoffending and call for the imposition of a deterrent sentence that protects society.33 It is well settled that any uplift must bear a reasonable relationship to the sentence for the prior convictions and the starting point for the index offending.34
31 At [27].
32 At [27]. That approach was followed in Pryor v Police [2022] NZHC 1011. The offender pleaded guilty to five methamphetamine dealing charges involving “the possession and supply of a total of 12.6 grams of methamphetamine over a six month period”. Lang J considered that the offender’s role “was that of a street level dealer selling methamphetamine both for commercial gain and to support her own use of the drug.” He adopted a starting point of two years and six months’ imprisonment.
33 Reedy v Police [2015] NZHC 1069 at [19].
34 Tiplady-Koroheke v R [2012] NZCA 477 at [24].
[25] In this context it is relevant that Ms Nicol’s was previously sentenced of six months’ home detention for methamphetamine dealing. This is equivalent to one year of imprisonment. An uplift of four months is not disproportionate to a sentence of that length, given the relevance of the prior convictions and the escalating seriousness of Ms Nicol’s offending over time, despite her sentences.35 I am not satisfied that the uplift was excessive and accordingly, this ground of appeal must fail.
Was insufficient weight given to Ms Nicol’s personal mitigating factors?
Guilty plea – Appellant’s submissions
[26] Mr Scott submitted that the Judge gave insufficient weight to three of Ms Nicol’s personal mitigating factors – her guilty plea, her addiction driven offending and the time Ms Nicol spent on EM bail. In addition, counsel contended that the delays associated with Ms Nicol pleading guilty were attributable to issues with the charging documents, subsequent resolution discussions and COVID-19 related adjournments. He submitted that taking account of these factors, Ms Nicol pleaded guilty at the first reasonable opportunity.
[27] Further, Mr Scott submitted that Ms Nicol was remanded without a plea after her first appearance on 31 May 2021 because police had failed to provide initial disclosure. At a second appearance on 8 June 2021, police provided amended charging documents with particulars that did not match the details described in the Summary of Facts. Counsel was not in a position to enter pleas. The Court deemed not guilty pleas to have been entered and adjourned the proceeding to a case review hearing scheduled for 27 August 2021. Mr Scott confirmed that the Judge noted the charging document with the following annotation: “Hessell discount reserved – Counsel unable to get sign-off on plea.”
Guilty plea – Respondent’s submissions
[28]Ms Lett argued that the 15 per cent guilty plea discount was within the
35 See for example Taylor v R [2014] NZCA 561 where the appellant criticised the sentencing Judge for applying a six month uplift to account for his previous cannabis offending when sentencing him for further cannabis offending. The Court of Appeal noted that the appellant received a sentence of two months’ community detention and a fine for his prior offending. The Court considered the uplift of six months disproportionate and substituted an uplift of two months.
available range. She submitted that the proceedings were before the Court for nearly 10 months, with at least seven appearances and argued that the appellant did not plead guilty at the earliest opportunity. This too was a relevant factor for the Judge to take account of, according to counsel.
Discussion
[29] On 21 June 2021, counsel put a resolution offer to police which was accepted the following day. Then on 28 June 2021, EM bail was granted at Ms Nicol’s third appearance. Some weeks later, on 23 August 2021, a case management memorandum was filed to inform the Court of the resolution between Ms Nicol and police. At this time, Auckland was subject to a COVID-19 lockdown. The next case review hearing was repeatedly adjourned until 22 February 2022 due largely to COVID-19 related challenges. On that date Ms Nicol entered guilty pleas to the methamphetamine charges while additional charges of cannabis related offending were withdrawn.
[30] I accept that there were issues with the allegations against Ms Nicol at her first two appearances. That is evident from the Judge’s comments that the guilty plea discount should be reserved. Thus, Ms Nicol cannot be criticised for refusing to plead guilty at that point. Then, after applying for EM bail, Ms Nicol pleaded guilty at her next appearance. That appearance was some eight months later due to COVID-19 related adjournments prolonging the case management process. Those delays were not because Ms Nicol had failed to accept responsibility for her offending. On the contrary, she had agreed a resolution with police shortly after her second appearance. Accordingly, in my assessment, a full guilty plea discount of 25 per cent should have been available to Ms Nicol.
Addiction-driven offending – Appellant’s submissions
[31] Mr Scott submitted that the Judge should have applied a discount to recognise that Ms Nicol’s offending was addiction-driven. In any event, there was now supporting evidence available to confirm Ms Nicol’s addiction. Counsel contended that a discount of five to 10 per cent was appropriate in this case.
Addiction-driven offending – Respondent’s submissions
[32] Ms Lett argued that the Judge was correct to conclude that the appellant’s evidence of addiction was self-reported and was not sufficiently persuasive to justify a discount. It was also relevant that at the time of sentencing the Judge did not have the CADS correspondence, which counsel accepted was relevant. Whether, had it been available at that time, the letter might have made a difference to Ms Nicol’s sentence is unknown.
Discussion
[33] It is accepted that addiction may give rise to a sentencing discount of up to 30 per cent, depending on the extent to which it mitigates moral culpability for the offending.36 Equally importantly, such a discount must be based on persuasive evidence.37
[34] Ms Nicol’s clinician did not comment on the severity of the addiction or her engagement with the programme, despite being asked to do so. This lack of information beyond that establishing the fact of addiction necessarily reduced the discount available. My conclusion is that the evidence here is sufficient to establish that Ms Nicol had a methamphetamine addiction and has sought treatment for it through CADS. In those circumstances, a discount of five per cent is appropriate.
Time spent on EM bail – Appellant’s submissions
[35] Mr Scott submitted that the Judge failed to give an appropriate discount for the time Ms Nicol spent on EM bail. She notes that Ms Nicol spent 10.5 months on EM bail, in submitting that the Judge should have applied a discount of 15 to 20 per cent.
Time spent on EM bail – Respondent’s submissions
[36]Counsel did not make any detailed submissions on this issue.
36 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].
37 At [148].
Discussion
[37] An allowance of up to 50 per cent of the time spent on restrictive EM bail conditions is not uncommon and nor is that an upper limit.38 Moreover, the assessment of credit is an evaluative decision to be made after taking account of the restrictiveness and duration of EM bail conditions in each case.39 The Judge applied a discount of 10 per cent after applying the uplift for previous convictions. This is equivalent to an allowance of 3.8 months for time spent on EM bail.
[38] With respect to the learned Judge, I consider that allowance was inadequate. Ms Nicol spent approximately 10.5 months on EM bail with a 24 hour curfew. It was accepted that she did not breach her bail conditions during that period. A discount equivalent to approximately half that time is justified, particularly having regard to Ms Nicol’s compliance. In my assessment, a discount of five months is appropriate.
Should Ms Nicol receive a sentence of home detention instead of imprisonment?
[39] Applying the above uplift and discounts to the starting point of two years and six months results in an end sentence of 20 months’ imprisonment. This brings the end sentence within the range where home detention is an available outcome.40
Is home detention the appropriate sentence?
[40] Section 6(4) of the Misuse of Drugs Act creates a presumption of imprisonment when sentencing Class A drug offending. Whether that presumption is overborne turns upon the particular circumstances of the offence and the offender.
[41] Mr Scott submitted that Ms Nicol’s personal circumstances mandate a sentence of home detention since it is the least restrictive sentence that is appropriate in the circumstances. Counsel advances several considerations that support that conclusion.
[42]First is the role addiction played in Ms Nicol’s offending. Addiction calls for
38 Paora v R [2021] NZCA 559 at [53].
39 At [53].
40 Sentencing Act 2002, ss 15A and 4 definition of “short-term sentence”; and Parole Act 2002, s 4(1) definition of “short-term sentence”.
consideration of a rehabilitative response as part of sentencing.41 Ms Nicol has taken steps to rehabilitate in seeking treatment through CADS. A sentence of home detention will enable her to continue this treatment. Secondly, Ms Nicol demonstrated compliance on EM bail conditions for some 10.5 months. It follows that she is likely to comply with the terms of a sentence of home detention.
[43] Thirdly, Mr Scott confirmed that a suitable address is available. It is the address to which Ms Nicol was bailed and where she lived with her teenage daughter. She is responsible for her care. I accept that this is another factor which will give a sentence of home detention a rehabilitative purpose.
[44] I note that Ms Nicol has previously been sentenced to home detention for methamphetamine offending. This necessarily calls into question the deterrent effect of her previous sentence. It is a factor that reasonably militates against imposing another sentence of home detention. However, I am satisfied that, on this occasion, a sentence of home detention will best meet Ms Nicol’s rehabilitative needs, whilst still facilitating the deterrent and denunciative purposes of sentencing. A sentence of home detention remains the second most restrictive sentence available.42 My conclusion is that the sentence of imprisonment should be commuted to one of home detention.
[45] That said, Ms Nicol needs to take her addiction issues seriously, given the opportunity she has now been given. Ms Nicol needs to work with her family, several of whom attended the appeal hearing, and the appropriate agencies, to genuinely engage with rehabilitation and addiction programmes. She needs to take concrete steps to make better choices and have her methamphetamine addiction treated. At the risk of belabouring the point, Ms Nicol needs to commit to authentic addiction treatment as a matter of priority. To avoid doubt, it is unlikely that this Court or the District Court would entertain anything other than a prison sentence should Ms Nicol engage again in comparable reoffending.
41 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [150].
42 Sentencing Act 2002, s 10A.
Adjustment for time spent in custody
[46] Given that a sentence of home detention is being substituted, Mr Scott submits that an adjustment should be made for the three months that Ms Nicol spent remanded in custody. She advises that Ms Nicol was in custody for approximately one month prior to being granted EM bail and another two months after being sentenced to imprisonment.
[47] The Court is required to take account of the time an offender spent in custody when imposing a sentence of home detention.43 A deduction of three months is appropriate in this case.
Decision
[48]The appeal is allowed.
[49] The sentence of two years and four months’ imprisonment is quashed and substituted with a sentence of seven months’ home detention.
Harvey J
43 See for example Slade v Police [2020] NZHC 3396 at [26]–[33]; and Stridom v Police [2019] NZHC 354 at [50].
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