Police v Knox
[2013] NZHC 2760
•22 October 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-485-000067 [2013] NZHC 2760
BETWEEN NEW ZEALAND POLICE Appellant
ANDKERRY BRUCE SHANE KNOX Respondent
Hearing: 22 October 2013
Counsel: P K Feltham for Appellant
D A Ewen for Respondent
Judgment: 22 October 2013
JUDGMENT OF COLLINS J
Introduction
[1] The question I have to consider is whether a sentence of 12 months’ home detention and 200 hours’ community work imposed on Mr Knox in respect of four charges concerning the supply of methamphetamine was either:
(1) imposed without jurisdiction; or
(2) clearly inadequate or inappropriate.
Context
[2] This question arises in the context of an appeal by the police from a sentence imposed on Mr Knox by Judge Broadmore on 31 July 2013.
NEW ZEALAND POLICE v KNOX [2013] NZHC 2760 [22 October 2013]
Relevant legislation and principles
[3] Where a person has been sentenced in the District Court the Solicitor-General may authorise the informant to appeal the sentence to the High Court.1 In this case, the notice of appeal, signed by counsel on behalf of the informant was accompanied by a notice of written consent from a Deputy Solicitor-General who gave his consent to the appeal, on behalf of the Solicitor-General.2
[4] Under s 121(3) of the Summary Proceedings Act 1957 I may quash or vary a sentence that the District Court had no jurisdiction to impose or which is “clearly ... inadequate or inappropriate”.
[5] The principles which govern this appeal are the same as those which apply to a Solicitor-General’s appeal to the Court of Appeal against a sentence imposed by a lower court. Those principles are:
(1) I should allow the appeal if it is clear that:
(a) the sentence appealed from was “manifestly inadequate”;3 or
(b) Judge Broadmore committed an error of principle.4
(2) I should ensure that I “do not override the sentencing judge’s discretion to take a merciful approach or to adopt a course calculated to achieve rehabilitation, even in cases which would normally call for a deterrent sentence”.5
(3) I should be less inclined to allow the appeal when a community-based sentence has been imposed and complied with than where the
inadequacy of a custodial sentence is an issue.6
1 Summary Proceedings Act 1957, s 115A.
2 Constitution Act 1986, s 9C.
3 R v Wihapi [1976] 1 NZLR 422 (CA).
4 R v Wihapi, above n 3.
5 R v Donaldson (1997) 14 CRNZ 537 (CA) at 549-550.
6 R v Donaldson, above n 5.
(4) I should not increase a sentence if doing so would cause an injustice to Mr Knox.7
(5) Even if I were to allow the appeal I should intervene to the minimum extent that is possible to correct a manifest inadequacy in the sentence.8
Another principle which governs Solicitor-General’s appeals, but which is not relevant in this case, is that where the sentencing arises from a trial I should be mindful of the advantages of the sentencing judge has in seeing and hearing witnesses and the making of an assessment of the offender’s culpability.9
Background
[6] Mr Knox was arrested in April 2012 after the termination of a police drugs
operation called “Operation Marian”. He was charged with:
(1) one charge of conspiracy to supply methamphetamine, a class A
controlled drug;10
(2) one representative charge of supplying methamphetamine, a class A
controlled drug;11
(3)one representative charge of offering to supply methamphetamine, a class A controlled drug;12 and
(4)one charge of possession of methamphetamine for the purposes of supply.13
7 R v Donaldson, above n 5.
8 R v Fidow [2013] NZCA 209 at [30].
9 R v Donaldson, above n 5.
10 Misuse of Drugs Act 1975, s 6(2A), maximum sentence 14 years’ imprisonment.
11 Section 6(1)(c), maximum sentence life imprisonment.
12 Section 6(1)(c), maximum sentence life imprisonment.
13 Section 6(1)(f), maximum sentence life imprisonment.
[7] The quantity of methamphetamine involved in Mr Knox’s offending was at least 26.45 grams.
[8] Mr Knox has previous relevant convictions. On 27 February 2009 he was sentenced by Ronald Young J to two years and six months’ imprisonment for charges relating to the supply of methamphetamine. On 29 March 2012 Mr Knox was again convicted of drug-related offences. His convictions on that occasion related to possessing methamphetamine and possessing utensils used in relation to methamphetamine offending. He was sentenced to nine months’ supervision.
Co-offenders
[9] Many of Mr Knox’s co-offenders have pleaded guilty and been sentenced. They include:
(1)Alfred Devitt, who was sentenced on 14 November 2012 to three years and nine months’ imprisonment by Judge Harrop from a starting point of four years and three months. Mr Devitt pleaded guilty to two charges relating to 35 grams of methamphetamine.
(2)John Hohua, who was sentenced on 12 February 2013 to three years and four months’ imprisonment from a starting point of three and a half years’ imprisonment. Mr Hohua pleaded guilty to three charges. His offending involved 4.95 grams of methamphetamine.
(3)Geoffrey Hooper, who was sentenced on 30 November 2012 to three years three months’ imprisonment from a starting point of three and a half years by Judge Davidson. Mr Hooper pleaded guilty to three charges. His offending related to 4.95 grams of methamphetamine.
(4)Karena Te Rangi, who was sentenced on 13 February 2013 to two years and one month’s imprisonment from a starting point of three years and three months’ imprisonment. Ms Te Rangi pleaded guilty to two charges. Her offending related to a total of 4.95 grams of methamphetamine.
(5)Robert Taui, who was sentenced on 21 December 2012 to six years’ imprisonment from a starting point of seven years’ imprisonment by Judge Davidson. Mr Taui pleaded guilty to eight charges. His offending related to 42.8 grams of methamphetamine.
(6)Matthew Tema, who was sentenced on 1 February 2013 to four years and six months’ imprisonment from a starting point of six years by Judge Davidson. Mr Tema pleaded guilty to two charges. His offending related to a total of 34 grams of methamphetamine.
(7)Tracey Toa, who was sentenced on 15 March 2013 by Judge Broadmore to 11 months’ home detention from a starting point of three and a half years’ imprisonment. Ms Toa pleaded guilty to two charges. Judge Broadmore noted this offender was the most minor of the conspirators and a large discount was given for personal mitigating factors.
(8)Kate Bevin, who was sentenced on 17 April 2013 by Judge Mill to an end sentence of four years’ imprisonment from a starting point of six years’ imprisonment. Ms Bevin pleaded guilty to eight charges that related to 43.85 grams of methamphetamine.
Sentence indication
[10] On 12 March 2013 Judge Barry gave Mr Knox a sentence indication. Judge Barry indicated a starting point of four and a half years’ imprisonment. To this Judge Barry would have added a six month uplift to reflect Mr Knox’s previous convictions for methamphetamine offending. Judge Barry indicated that Mr Knox would receive discounts of:
(1)twenty months (33 per cent) to reflect Mr Knox’s steps towards rehabilitation and his guilty pleas (if entered); and
(2) a further six months (ten per cent) to reflect the nine months that
Mr Knox had spent on electronically monitored (EM) bail.
This left an indicated sentence of two years and ten months’ imprisonment.
[11] On 28 March 2013 Mr Knox declined the sentence indication but nevertheless entered guilty pleas to the four charges.
Sentencing decision
[12] In his sentencing notes Judge Broadmore said he substantially agreed with
Judge Barry’s sentence indication and that he was:14
simply going to take the indicated sentence of two years and 10 months and consider whether any adjustments should be made to that in the light of the submissions which have been made ... and [Mr Knox’s] personal circumstances.
[13] Judge Broadmore then focused on three factors which he believed required him to reduce the sentence that Judge Barry had indicated. Those factors were:
(1)The need to give Mr Knox credit for the additional four and a half months that he had spent on EM bail since the sentence indication hearing.
(2)The high level of attachment between Mr Knox and his son, aged approximately 12 months.
(3) The fact Mr Knox had not offended further since being granted bail.
[14] Judge Broadmore then said that he:15
struggled to get the sentence down to one of two years, but ... that essentially [Mr Knox was] not a person who should be sentenced to imprisonment, that there is no interest of the community apart from a punitive one, in sentencing [Mr Knox] to imprisonment and that [it was] therefore appropriate that [he] should keep [Mr Knox] in the community.
[15] Judge Broadmore then imposed the sentence of 12 months’ home detention and 200 hours’ community work in relation to the four charges. Judge Broadmore
also directed Mr Knox be subject to judicial monitoring.
14 R v Knox DC Wellington CRI-2012-085-1444, 31 July 2013 at [5].
15 At [15].
[16] The effect of the sentence imposed by Judge Broadmore is that Mr Knox must have received the benefit of a discount of two and a half years from the four and a half years starting point indicated by Judge Barry. That reflects a 60 per cent discount.16
Did Judge Broadmore lack jurisdiction to impose home detention/community work?
[17] The Crown’s submission on this point is based on remarks made by
Judge Broadmore during the sentencing hearing in which he said:17
... on any view looking at the matter from the ground up we don’t get down to two years. We get down to two years four months or something of that kind.
[18] In sentencing Mr Knox Judge Broadmore said that he “struggled to get the
sentence down to one of two years”.
[19] In my assessment this aspect of the Crown’s argument may have had merit if Judge Broadmore had said in his sentencing notes that he had reached a sentence of two years and four months and then imposed a sentence of home detention. However, Judge Broadmore did not do this. My reading of the transcript and the sentencing notes leads me to conclude:
(1)During exchanges with counsel during sentencing submissions Judge Broadmore indicated that he might be forced to impose a sentence of two years and four months’ imprisonment. It is not unusual for Judges to have frank exchanges with counsel during sentencing submissions. Remarks made by a Judge during sentencing submissions should not be interpreted as a binding statement of the Judge’s decision.
(2) In all likelihood, when he imposed sentence Judge Broadmore
decided that a sentence of 12 months’ home detention was
16 Or 50 per cent from the adjusted five year sentence indicated by Judge Barry after Mr Knox’
previous convictions were factored into the equation.
17 Record of sentencing hearing at 14-15.
appropriate. He could only have reached this conclusion on the basis that Mr Knox should be sentenced to two years’ imprisonment or less and that pursuant to s 15A of the Sentencing Act 2002 a sentence of home detention was appropriate. I do not think that a Judge with the experience and standing of Judge Broadmore would have failed to appreciate that a sentence of home detention could only be imposed if Mr Knox was to be sentenced to imprisonment for two years or less.
[20] I accept there is a gap in Judge Broadmore’s reasons for sentence which resulted in no clear explanation being given as to exactly how the sentence of home detention was reached. That omission may constitute an error of principle in sentencing. It does not in itself mean that Judge Broadmore had no jurisdiction to impose the sentence which he imposed.
Was the sentence imposed clearly inadequate or inappropriate?
[21] The police are on stronger grounds when they submit that the sentence imposed was clearly inadequate or inappropriate. Mr Knox’s offending involved the organised and commercial dealing of a class A controlled drug. The total amount of methamphetamine that Mr Knox was involved in was at least 26.45 grams and therefore his offending fell within the lower end of band two in R v Fatu.18
Accordingly, Mr Knox was exposed to a starting point of between three to nine
years’ imprisonment.
[22] Mr Ewen, counsel for Mr Knox, submits that on an arithmetical calculation, possession of 26 grams of methamphetamine would produce a starting point of three years and six weeks’ imprisonment.19 However, Mr Ewen also appreciates that sentencing is not an arithmetical exercise, particularly when the offending is by a person whom the summary of facts describes as being a “significant figure” in a large methamphetamine supply network. It is for these reasons I am satisfied the
starting point of four and a half years indicated by Judge Barry and adopted by
Judge Broadmore was entirely appropriate.
18 R v Fatu [2006] 2 NZLR 72 (CA) at [34].
19 Calculated on the basis that the mid-point to band two of R v Fatu (supplies of 120 to 130
grams) produces a starting point of six years’ imprisonment.
[23] In addition, Mr Knox has been sentenced to two and a half years’ imprisonment on 27 February 2009 for dealing with methamphetamine. The current offending occurred while he was on bail and subject to sentence.20 The uplift of six months’ imprisonment to reflect Mr Knox’s previous offending was therefore appropriate.
[24] Judge Barry indicated, and Judge Broadmore accepted, a discount of
20 months (33 per cent) to reflect Mr Knox’s steps towards rehabilitation and his early guilty pleas.
[25] Mr Ewen criticises the amount of discount given to reflect Mr Knox’s rehabilitation.21 While there are instances where a discount significantly greater than ten per cent has been given for an offender’s rehabilitative steps, I do not think that a
33 per cent discount to reflect both Mr Knox’s rehabilitative steps and his early guilty pleas can be successfully challenged. It is to be noted Mr Knox entered his guilty pleas ten months after his arrest and after multiple court appearances. A discount of 33 per cent to reflect Mr Knox’s guilty pleas and steps towards rehabilitation was entirely reasonable.
The difficulty with the sentence imposed
[26] The difficulty with the approach taken by Judge Broadmore was that the three factors which he took into account in reducing further the sentence that was indicated by Judge Barry, could not have led to a further ten month discount in Mr Knox’s prison sentence.
Further time spent on EM bail
[27] The additional four and a half months spent by Mr Knox on EM bail would at most have justified a further discount of four months’ imprisonment. This is
generally consistent with the approach taken in R v Fidow.22
20 Sentencing Act 2002, s 9(1)(c) and (j).
21 Relying on R v Strachan [2013] NZHC 1711 at [17]; R v Jackson [2013] NZHC 2194 at [20]; R
v Hereora [2012] NZHC 3422; R v Kingi [2013] NZHC 2051.
22 R v Fidow, above n 9, at [34].
Impact of prison on Mr Knox’s son
[28] The impact of a prison sentence on Mr Knox’s relationship with his son is highly undesirable. It is clear that Judge Broadmore was influenced by the report from Dr Ulloa, a psychiatrist, who explained in some detail the likely adverse impacts on Mr Knox’s son if he is to be separated from his son. However, as the Court of Appeal noted in Skelton v R:23
... It is inevitable that serious criminal offending by a child’s parent will result in hardship for the child. It is regrettable that as the result of their [parent’s] criminal offending the children must be separated from [their parent]. But these unfortunate outcomes are frequently experienced in relation to the children of criminal offenders. That factor cannot override the dominant purposes of deterrence and denunciation that apply in respect of [serious criminal] offending.
...
[29] Similarly, in R v Williams the Court of Appeal stated:24
The very sad consequences to dependent children of the imprisonment of their parents is always deeply troubling to a Court. ... But society cannot overlook serious offending by parents in order to save distress to their children. The principles of denunciation, deterrence and accountability cannot be ignored. This is not to say that mercy may not be prompted by domestic circumstances in certain cases.
...
[30] Mr Knox’s case involved serious drug offending by a person with previous convictions for offending of a similar nature. Deterrence and denunciation were the paramount sentencing principles which Judge Broadmore needed to bear uppermost in mind when sentencing Mr Knox. The deeply distressing impact on Mr Knox’s child of Mr Knox being sentenced to imprisonment cannot override the purposes of deterrence and denunciation. In these circumstances it was not appropriate for a discount to be given in order to produce an end sentence of home detention solely in order to mimimise the harm that may occur to Mr Knox’s son if Mr Knox is
separated from his son.
23 Skelton v R [2011] NZCA 35 at [40](iv)-(vii). Leave to appeal to the Supreme Court dismissed
Skelton v R [2011] NZSC 70.
24 R v Williams CA23/05, 15 March 2005 at [20].
Mr Knox’s steps towards rehabilitation
[31] Mr Knox’s steps towards rehabilitation were taken into account by Judge Barry when giving the indicative sentence. Judge Broadmore accepted Judge Barry’s reasoning on this point. Judge Broadmore should not therefore have taken that factor into account again when imposing the sentence that he imposed on Mr Knox.
[32] Mr Knox’s good behaviour while on bail is not in itself a mitigating feature.
Mr Knox’s absence of offending while on bail is simply a non-aggravating feature.
Conclusion
[33] I am driven to the conclusion that the end sentence reached by Judge Broadmore was clearly inadequate and inappropriate because he should not have given Mr Knox a further ten month discount to reflect:
(1) the further time Mr Knox had spent on EM bail;
(2) the impact of a prison sentence on Mr Knox’s son; and
(3) Mr Knox’s steps towards rehabilitation.
The appropriate sentence
[34] Judge Broadmore was correct when he provisionally adopted the end term of imprisonment indicated by Judge Barry. The process which Judge Barry followed in reaching his indicative sentence was, in my assessment, entirely correct and cannot be criticised. In addition, credit needs to be given to Mr Knox for the four and a half months that he spent on EM bail between 12 March 2013 and 31 July 2013. Mr Knox is also entitled to a further discount to reflect the time he has spent on home detention since the sentence imposed by Judge Broadmore, and the fact that he has partially served the sentence of community work.
[35] I understand that Mr Knox served approximately five weeks of his home detention sentence and 23 hours of the 200 hours’ community work to which he was also sentenced.
[36] It is not possible to apply a precise arithmetical formula to the discounts that should be applied to reflect the period Mr Knox spent on EM bail prior to sentence, and the time that he has served on home detention and the hours of community work that he has performed. In my view a global approach that is aimed at imposing the least restrictive sentence that can possibly be imposed in the circumstances is best achieved through giving Mr Knox a discount of four months for the time spent on EM bail and three months for the time spent on home detention and in completing the 23 hours community work.
[37] This results in an end sentence of two years three months’ imprisonment.
[38] In my assessment, this sentence is the least restrictive that is appropriate in the circumstances.25 It is also the only sentence that can be imposed that will:
(1) hold Mr Knox accountable for his conduct;26
(2) denounce Mr Knox’s conduct;27
(3) deter others from similar offending;28 and
(4)provide some degree of consistency between the sentences imposed on Mr Knox and his co-offenders.29
[39] I am also satisfied that quashing Judge Broadmore’s sentence and imposing a
sentence of imprisonment is consistent with the principles I have set out earlier in this judgment.
25 Sentencing Act 2002, s 8(g).
26 Section 7(1)(a).
27 Section 7(1)(e).
28 Section 7(1)(f).
29 Section 8(e).
Conclusion
[40] Mr Knox can you please stand now.
[41] The police appeal is allowed. The sentence of home detention and community work is quashed.
[42] Mr Knox, I am now sentencing you to two years and three months’
imprisonment on all four charges. Those sentences are concurrent.
D B Collins J
Solicitors:
Crown Solicitor, Wellington for Appellant
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