Pearce v The King

[2024] NZHC 3925

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-126

[2024] NZHC 3925

TIMOTHY HALLET PEARCE

v

THE KING

Hearing:	16 December 2024
Appearances:	G A Walsh for Appellant A Penney for Respondent
Judgment:	19 December 2024

JUDGMENT OF MUIR J

Appeal against sentence

This judgment was delivered by me on 19 December 2024 at 12 pm, Pursuant to Rule 11.5 of the High Court rules.

Registrar/Deputy Registrar Date: ……………………………

Solicitors: Hamilton Legal

PEARCE v R [2024] NZHC 3925 [19 December 2024]

Introduction

[1]                Timothy Pearce appeals his sentence of two years and six months’ imprisonment in respect of three methamphetamine related charges, being:1

(a)charge one — possession of methamphetamine for supply —155 grams;

(b)charge two — supply of methamphetamine — two grams; and

(c)charge three — offers to supply methamphetamine — 0.75 grams.

[2]                He says that the sentence was manifestly excessive for two reasons. First, the starting point of five years adopted by the Judge was too high and should have been in the range of four to four and a half years. Secondly, the Judge declined to grant a discount for remorse which should have been allowed to the extent of approximately five per cent of the assessed starting point.

The facts

[3]                For approximately 45 years Mr Pearce has been in a personal relationship with Ms Lynmarie Carter. They share children, grandchildren and great grandchildren together. Both are in their early 60s.

[4]                In September 2021 police commenced an investigation into a wholesale methamphetamine supplier operating in the Waikato area. An analysis of communications led them to Ms Carter who was operating a well established street level methamphetamine operation together with Mr Pearce. The evidence established purchase of wholesale quantities of methamphetamine for the purposes of supply to a recurring retail customer base throughout the Waikato. The communications further identified Mr Pearce’s support role as including delivery of drugs and enforcement of debt collection.

1      R v Pearce [2024] NZDC 27595.

[5]                In late October 2021 Ms Carter became seriously ill with COVID-19 and was hospitalised for an extended period. Mr Pearce communicated with the wholesale supplier, indicating that his partner was unavailable and that he would be taking over the retail operation. He admitted to possession of 155 grams of methamphetamine between 30 October 2021 and 6 January 2022. He also admitted to supplying two grams of methamphetamine to six different retail customers.2 While Ms Carter remained in hospital there were also two identifiable offers to supply methamphetamine made by Mr Pearce, the offers being for half a gram and a quarter of a gram respectively.

The District Court decision

[6]                The Judge considered that Mr Pearce’s offending placed him within Band 2 of Zhang v R with the result that the indicated starting point was between two and nine years.3 Having referenced the decision in R v Su’a, he adopted the Crown’s suggested starting point of five years’ imprisonment.4

[7]                Although Mr Pearce had convictions for cultivating cannabis and possession of cannabis for supply (the last of which was in 2005), the Judge did not consider that they were sufficiently proximate in time to warrant any uplift.

[8]                He allowed a 20 per cent discount for Mr Pearce’s guilty plea, albeit this had come almost two years after the charges were laid and against a strong Crown case. He described the discount as “benevolent”. Mr Walsh says that the ostensible generosity reflected late acceptance by the Crown that Mr Pearce should not be sentenced for the 524.25 grams by reference to which Ms Carter was sentenced.

[9]                The Judge then allowed an additional discount of 15 per cent on account of Mr Pearce’s long term addiction and a further nine months to reflect 18 months spent

2      Noting that most of the supplies were for an unknown quantity and that the police recorded several instances conservatively at 0.1 of a gram (the smallest volume of the drug typically available for sale).

3      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. Offending involving greater than five grams and less than 250 grams.

4      R v Su’a [2023] NZHC 1485.

on electronically monitored (EM) bail. This resulted in an end sentence of two years and six months’ imprisonment.

Law on appeal

[10]            This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.5 Otherwise, the Court must dismiss the appeal.6

[11]            The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.7 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.8

Counsel’s submissions

[12]            In support of his submission that the starting point should have been between four years and four and a half years, Mr Walsh references the decision in Epapara v R where 177.5 grams of methamphetamine was in issue in respect of possession and supply charges, and the starting point was set at four years and six months.9

[13]            He further says that the Judge did not give an allowance for remorse despite a carefully worded two and a half page letter to the Court in which the defendant detailed his long period of addiction, responsibility for introducing Ms Carter to the drug world and his determination that they should rebuild their lives.

[14]            He submits that allowing for these two factors, an end sentence approaching two years could be identified and that having regard to the defendant’s performance

5      Criminal Procedure Act 2011, s 250(2).

6      Section 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

8      Ripia v R [2011] NZCA 101 at [15].

9      Epapara v R [2022] NZHC 2492.

on EM bail, he should be regarded as a suitable candidate for a home detention sentence.

[15]            For the Crown, Ms Penney submits that the starting point was not manifestly excessive and is consistent with  many  of  the  cases  that  this  Court  and  the  Court of Appeal has considered. She says that while there are some broadly comparable cases where a lower starting point has been recognised, likewise there are others where the starting point was higher. She says that five years was within the available range.

[16]            In respect of remorse, she submits that the Judge was correct not to recognise a discrete discount. While the defendant’s letter accepted the offending and recognised the harm that methamphetamine creates in the community, she says that it was largely focused on the potential consequences a custodial sentence would have on his family and on other considerations generally falling within a s 27 framework.10 She emphasises that when assessing whether a sentence is manifestly excessive, the focus must be on whether the sentence imposed is within range, rather than a process by which the sentence was reached or its component parts.11

Discussion

Starting point

[17]            The guideline authority for possession of methamphetamine for supply is Zhang v R.12 In that case the Court recognised that the quantity of methamphetamine involved in the offending remained “a reasonable proxy” for both social harm done by the drug and elicit gains made from making, importing and selling it.

[18]            It is common ground that Mr Pearce’s offending fell within Band 2 of Zhang resulting in a potential sentence range of between two and nine years’ imprisonment. Where within any band particular offending sits will largely depend on the role of the offender — that is “lesser”, “significant” or “leading”. After identifying the role of

10     Sentencing Act 2002, s 27.

11     Relying on Islam v R [2020] NZCA 140 at [32] and Bowring v Police [2021] NZCA 325 at [12].

12     Zhang v R, above n 3.

the offender, the starting point may move between bands or within a band depending on the scale of involvement/lack thereof and other considerations. In Berkland v R, the Supreme Court further clarified the qualifications for various role levels, emphasising that what they said was a “useful lens” through which to view the facts rather than a “straitjacket”.13 The updated role summary table is as follows:

Updated Role Profile Table
Lesser	Significant	Leading
1. Performs a limited	1. Management	1. Directing or
function under	function in operation	organising buying and
discretion;	or chain where, under	selling on a
2. engaged by pressure,	direction from a	commercial scale;
coercion, intimidation;	leader, this entails	2. substantial links to,
3. involvement through	directing others in the	and influence on,
naivety or exploitation;	operation whether by	others in a chain;
4. motivated solely or	pressure, influence,	3. close links to
primarily by own	intimidation or	original source;
addiction;	reward;	4. expectation of
5. little or no actual or	2. operational	substantial financial
expected financial	function, whether	gain;
gain;	operating alone or	5. uses business as
6. paid in drugs to feed	with others;	cover; and/or
own addiction or cash	3. motivated solely or	6. abuses a position of
significantly	primarily by financial	trust or responsibility.
disproportionate to	or other advantage;
quantity of drugs or	4. actual or expected
risks involved;	financial or other
7. no influence on	advantage, especially
those above in a chain;	where commensurate
8. little, if any,	with role and risk
awareness or	assumed; and/or
understanding of the	5. some awareness and
scale of operation;	understanding of the
and/or	scale of the operation.
9. if own operation,
solely or primarily for
own or joint use on
non-commercial basis.

[19]            The District Court Judge did not formally categorise Mr Pearce’s role, although acknowledging that there were aspects of both lesser role (particularly by reference to his addiction) and/or a significant role. He noted that Mr Pearce had taken over the position of “lead player” when Ms Carter was hospitalised.

13     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [65].

[20]            I regard Mr Pearce’s role as significant. I accept that in the period prior to  Ms Carter’s hospitalisation he acted as more of a support person with a focus on delivery and debt recovery, although he was clearly fully conversant with the scale of the operation. I focus more particularly however on the period after Ms Carter’s hospitalisation because that is the period to which the possession for supply charge relates. As already noted, the agreed quantum was considerably less than that relating to Ms Carter.

[21]            During this period Mr Pearce fulfilled all of the roles formerly undertaken by Ms Carter. He communicated directly with the wholesaler. He told the wholesaler that he had taken over the operation while Ms Carter was indisposed. He arranged supply and made supply. Excluding personal addiction (which the Judge otherwise reflected by way of discrete discount) the role was clearly significant as Mr Walsh fairly accepted. Allowing for some adjustment on account of addiction (which would otherwise have to be reflected in a reduction to the discount at stage two of the sentencing),14 his role was, at a minimum, on the cusp of lesser and significant.

[22]            Mr Walsh  relies primarily on the decision of Tahana  J in  Epapara v R.15    Ms Epapara was described as a relatively “busy” retail dealer selling or offering to sell methamphetamine in gram or ounce quantities. Her offending was solely for commercial gain rather than addiction. The total amount of methamphetamine involved was:

(a)possession for supply — 106.5 grams;

(b)offer to supply — one gram; and

(c)supply — 71 grams.

[23]            The matter came before this Court on an appeal from a District Court end sentence of two years and four months’ imprisonment. It was argued, among other things, that the starting point of four years and six months was manifestly excessive.

14     See Royal v R [2020] NZCA 129 and Miller v R [2020] NZCA 131.

15     Epapara v R, above n 9.

Tahana J regarded the starting point as “within range and not manifestly excessive”. She agreed with the Judge that Ms Epapara had an upper-lesser or lower-significant role in the operation over which she had control. She noted that the defendant was motivated by profit rather than addiction.

[24]            I note that in the way the case developed it is not authority for the proposition that a starting point of five years would not similarly be “within range”.

[25]By contrast, the Crown points to Su’a v R.16 Mr Su’a’s offending involved

142.45 grams of methamphetamine and 61.13 of cannabis. The District Court Judge adopted a starting point of five and a half years’ imprisonment. On appeal Ellis J noted that there was no challenge in this respect. She held that with the various discounts recognised, the end sentence of two years and six months’ imprisonment was well within range.

[26]Other relevant authorities include:

(a)R v Cossey where the offending involved 135.49 grams of methamphetamine on the part of someone who played a “lesser” role in a larger organisation, her involvement with which was driven by vulnerability despite receiving significant profit.17 A starting point of four years and six months was identified.

(b)Gray v R where the amount involved was higher than the present case at 235.8 grams (together with 29.36 grams of cannabis for supply).18 The Court of Appeal found that Mr Gray had an operational function within a chain, was not directing others and was not primarily motivated by profit or expected financial gain but did understand the scale of his involvement. That placed him at the higher end of “lesser” and the lower end of “significant”. A starting point of six years’ imprisonment was upheld.

16     Su’a v R, above n 4.

17     R v Cossey [2021] NZHC 1333 at [24].

18     Gray v R [2020] NZCA 548.

(c)Jack-Kino v R where the defendant was identified with a substantial quantity of iodine as well as approximately 100.9 grams of methamphetamine in liquid form and was charged with possession for the purposes of supply.19 His role was assessed as “lesser” being confined primarily to storage of controlled substances for others but nevertheless a more serious role than that simply of “catcher”. The District Court identified a starting point of six years’ imprisonment which was reduced to four years and six months on appeal.

[27]            Having considered these cases, I consider the starting point adopted by the Judge to have been firm but available. This was a substantial retail operation which, at least from the point of his partner’s incapacitation, was run solely by the defendant. He opened lines of communication to the wholesale supplier, he obtained drugs and he distributed them. It was a well established commercial drug dealing operation in which he “stepped up” as required. The four to four and a half year starting point indicated by Mr Walsh does not, in my view, adequately reflect his culpability, adequately meet the principles of denunciation and deterrence, nor adequately reflect the harm caused to the community by the supply of significant quantities of methamphetamine.

[28]            As the Crown alludes to in its submissions, I have some sense that the suggested starting point derives from a desire to bring the sentence within the range where home detention could be considered. It does not in my view, properly reflect Mr Pearce’s role in the context of upper-middle Band 2 offending.

Remorse

[29]            Mr Pearce provided a very articulate letter to the sentencing Judge which commenced with the recognition of the damage that drug related offences cause within the community “fuelling cycles of addiction and despair”. He said that this awareness weighed on him heavily.

19     Jack-Kino v R [2021] NZHC 1468.

[30]            The letter then goes on to emphasise the way in which he and Ms Carter came to be involved in drug dealing (suggesting that they had been groomed by someone who wished to manipulate their dependence) and addresses at length the pressures which he said a custodial sentence would place on his wider family. The letter candidly admits that during the extended period that he and Ms Carter were on EM bail, they continued to use (but he says not deal in) methamphetamine. He says that he used that period to “rebuild” his relationship with Ms Carter.

[31]As the Court of Appeal recognised in Kohu v R:20

[40] It is now well established that a discrete discount for remorse will be appropriate where a “proper and robust evaluation of all the circumstances” demonstrates that an offender is remorseful. Remorse need not be extraordinary, although it must be genuine. The onus is on the defendant to show it is so. This Court has previously stated that it will look for “tangible evidence, such as engagement in restorative justice processes”. Other examples include the voluntary payment of reparation, and efforts to remedy harm to the community. Where established, remorse tends to attract a discrete discount of between five and 15 per cent.

[32]            In this case, Mr Pearce was on EM bail for approximately 18 months before sentencing. There is, however, no evidence that he took steps to demonstrate remorse or make amends within his community. More significantly, the Mr Pearce claims that addiction contributed to his offending but at the time of the letter of remorse, had not engaged in any form of drug rehabilitation programme. I accept that he may have used the time to rekindle relationships within his family which he had in the past damaged, but it is difficult to identify much beyond these formative steps in the way of the “tangible evidence” of remorse the Court of Appeal has referred to.

[33]            I am not persuaded that the Judge erred in not allowing a discrete discount. His reasons seem primarily encapsulated in the observation that the proceedings had been around “for quite some time” but the only demonstration of remorse had come on the eve of sentencing and that the retail operation continued for an extended period through COVID lockdowns. He considered that the offending had only stopped because “you and Ms Carter were caught”.21 I consider that a fair assessment.

20     Kohu v R [2023] NZCA 343 at [40] (footnotes omitted).

21     Pearce v R, above n 1, at [11].

Result

[34]I dismiss the appeal.

Muir J