Pearson v Police

[2017] NZHC 666

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2017-425-7 [2017] NZHC 666

BETWEEN

SIMON JOHN PEARSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 March 2017
Appearances:	H Cuthill for Appellant M Mika for Respondent
Judgment:	7 April 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1]      On 16 February 2017, Mr Pearson was sentenced in the District Court to

12 months imprisonment on two charges under s 70(1)(b) Psychoactive Substances Act 2013, of offering to sell a psychoactive substance that is not an approved product.1  The maximum penalty for this offence is two years imprisonment.2

[2]      Mr Pearson says the Judge did not give him adequate credit for his guilty plea, and that the end sentence is manifestly unjust for that and other reasons.

Facts

[3]      Analysis  of  Mr  Pearson’s  text  messages  between  mid  October  2016  to

December 2016, indicated he was selling psychoactive substances to another person on a regular basis.

1      Police v Pearson [2017] NZDC 3174.

2      Psychoactive Substances Act 2013, s 70(3).

PEARSON v NZ POLICE [2017] NZHC 666 [7 April 2017]

[4]      On 20 December 2016, the Police spoke to the appellant.  He said that he had two ounces of damiana which he had sprayed with fly spray and acetone to give it a chemical smell. He sold about 30 for $50 each, and he represented the product as a psychoactive substance.

[5]      This offending took place while the appellant was on post-release conditions. He was remanded in custody after the charges were laid on 20 December 2016.  He was recalled to prison on 10 January 2017, to serve the rest of his sentence.

District Court decision

[6]      The Judge referred to the appellant’s bad record, drug related and otherwise, and said that he should not be in the community.  The appellant’s lack of respect for the law was demonstrated by his offending while on post-release conditions.   The Judge considered that the appropriate starting point was nine months imprisonment, uplifted by six months for his bad record.  He then allowed a three month discount (20 per cent)  for  the  guilty  plea.     This  resulted  in  a  12  month  sentence  of imprisonment cumulative with the sentence of 3 years, 2 months that the appellant is serving for possession of methamphetamine for the purpose of supply.

Principles on appeal

[7]      Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence

should be imposed.3   It is only appropriate for this Court to intervene and substitute

its own views if the sentence being appealed is “manifestly excessive” and not

justified by the relevant sentencing principles.4    The focus is on the end sentence rather than the specific process by which the Judge reached it.5   The appellate court

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

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

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

will not intervene when the sentence is within the range that can properly be justified by sentencing principles.6

Submissions for Appellant

[8]      The appellant, through counsel Ms Cuthill, submits that:

(a)       An insufficient discount was given for his guilty pleas;

(b)      The starting point was not within the range established by authority;

(c)       The totality principle should have been considered, as the sentence was cumulative upon an existing sentence; and

(d)The     sentence    imposed    is    manifestly    excessive    in    all    the circumstances.

[9]      Counsel says the appellant was entitled to the full 25 per cent guilty plea because he pleaded guilty as soon as police amended charges from s 70(1)(a) to s 70(1)(b) of the Act, and relies on the Supreme Court’s direction that a discount must take into account all the circumstances in which a guilty plea is made, not just the timing.7   Ms Cuthill also says that the Judge should have considered the totality principle, and that there was an element of double counting because he was recalled to prison.   The end sentence is submitted to be wholly out of proportion to the gravity  of  the  overall  offending.    Ms  Cuthill  says  that  the  combination  of  a

cumulative sentence, an uplift of six months imprisonment for his record, and no adjustment for totality, resulted in a sentence that was manifestly excessive.   The appellant  points  to  the  tariff  case  of  Moore  v  R,  and  submits  that  the  present

offending is in category one.8

6      Larkin v Ministry of Development [2015] NZHC 680 at [26].

7      Hessell v R [2010] NZSC 131 at [51].

8      Moore v R [2015] NZHC 2565.

Crown Submissions

[10]     The Crown through Mr Mika, concedes that the appellant should have been given full credit for the guilty plea and that the appellant’s recall is relevant when assessing totality.   It submits that while the nine month starting point was at the higher end of the range, the end sentence was not manifestly excessive and this is category two offending, moderate in scale, and for profit.

Analysis

Guilty plea discount

[11]     The Supreme Court in Hessell v R set the principle that a discount of up to

25 per cent may be given for an early guilty plea.  All of the circumstances must be considered, including whether the plea is truly to be regarded as early or late, and the strength of the prosecution case.   These factors in combination allow the Court to identify the true mitigatory effect of the guilty plea.9

[12]     The appellant was charged on 23 October 2016.  In January 2017, counsel for the appellant advised police that he would plead guilty to charges amended from s 70(1)(a) to s 70(1)(b).  Police took time to consider this.  After amendments were made, he pleaded guilty on 2 February 2017.

[13]     The  appellant  submits  that  he  should  get  the  full  25  per  cent  discount available because he pleaded guilty as soon as the charges were amended, three months after the original charges were laid.  While the maximum penalty for both offences is two years imprisonment. the offences seem to be dealt with the same way at sentencing.  Yet the amendment sought was justified and Mr Mika for the Police does not contest this.

Totality principle

[14]     The Court of Appeal in Tukuafu v R held that a sentence should take into account time spent in prison on a previous sentence due to a recall for the new

9      Hessell, above n 7, at [74].

offending.10   Allowance should be made to avoid double punishment.  Mr Tukuafu spent seven months in prison on recall but the Court of Appeal gave him a five month discount, only to reflect the fact that the offending was while on parole and subject to release conditions.

[15]     The appellant was recalled as the result of this offending.  The appellant is entitled to some discount for the time spent in prison,   calculated in court as five weeks.

Starting point

[16]     In Police v Adams, a starting point of eight months was adopted for two charges under s 70(1)(c).11     The Court considered the defendant to have a moderate level of culpability considering the amount of drugs involved (about a 1 kilogram in total, from a number of searches) and the defendant had travelled to purchase the drugs.

[17]      In  Moore  v  R,  the  defendant  was  found  (as  the  result  of  a  number  of searches)  to  possess  around  2.6  kilograms  of  banned  psychoactive  products.12

Evidence from his cell phone showed he had been selling these products almost daily.   Mr Moore was charged with three charges of supplying under s 70(1)(c) and one charge of selling under s 70(1)(a).  On appeal, Brewer J addressed R v Terewi, the guideline judgment of the Court of Appeal for cultivation of cannabis offending, to categorise the offending.13   Brewer J set out the following categories of offending

for s 70(1):14

(a)       Category  one  (minor  offending):  this  consists  of  possession  of  a  small amount of synthetic cannabis for supply by the offender without any real element of commerciality.   For example, the offender might use the drug himself and occasionally supply it to friends and associates either at cost or

with a small margin for profit.   A non-custodial sentence will usually be

10     Tukuafu v R [2015] NZCA 251 at [12].

11     Police v Adams [2017] NZDC 2375.

12     Moore v R [2015] NZHC 2565.

13     R v Terewi [1999] 3 NZLR 62 (CA).

14 At [32].

appropriate. A short sentence of home detention or imprisonment may be necessary where there is persistent offending.

(b)       Category two (moderate offending): this consists of supply on a moderate scale with the object of deriving a profit.  In view of the maximum penalty for this offence being two years imprisonment, a starting point of between six months and 12 months imprisonment is likely to be appropriate for this level of offending.

(c)      Category three (serious offending): this consists of supply on a large, commercial scale. The supply operation will usually be sophisticated and well organised.    An appropriate starting point is likely to be greater than

12 months imprisonment.

[18]     Brewer J determined held Mr Moore’s offending was at the top of category two and took a starting point of 12 months for the supply charges, uplifting it by three months for the sale charge.

[19]     I have reflected on this since the hearing of the appeal.   At that stage the starting point appeared high, but stern rather than excessive.  I have concluded that while the present case is less serious, it falls at the top of category one, or the lower reaches of category two.  Nine months imprisonment was higher than that in Adams, but within range.

Uplift for previous offending

[20]      The Judge uplifted the starting point by six months to take into account the appellant’s “appalling record” for drug-related offending.  In this observation he was right.  The six month uplift was in range given his record and offending while under release conditions is severely aggravating.

Conclusion

[21]     The sentence should reflect the guilty plea discount in full, and to reflect the recall to prison.  These are computational matters rather than reasoning errors.  The starting point of nine months, uplifted by six months for previous offending and offending on release conditions, a discount of 25 per cent for the guilty plea and an allowance of five weeks for his recall to prison, results in a sentence of 10 months imprisonment.

Disposition

[22]     This   appeal   is   allowed   and   the   appellant’s   sentence   of   12   months

imprisonment, cumulative, is replaced with one of 10 months.

………………………………………….

Nicholas Davidson J

Solicitors:

Preston Russell Law, Invercargill

Hewat Galt, Invercargill

Copy to:

Mr S J C Pearson, c/- Invercargill Prison, P O Box 827, Invercargill 9840