Porter v Police
[2022] NZHC 415
•10 March 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-000018
[2022] NZHC 415
BETWEEN JOSHUA NEIL PORTER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 March 2022 Appearances:
K E Bucher for Appellant
C L T-W Fiennes for Respondent
Judgment:
10 March 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 10 March 2022 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Introduction
[1] On 2 February 2022, Joshua Porter was sentenced to two years and six months’ imprisonment by Judge M Callaghan in the Christchurch District Court1 on the following charges:
1 R v Porter [2022] NZDC 1638.
PORTER v NEW ZEALAND POLICE [2022] NZHC 415 [10 March 2022]
(a)possession of methamphetamine for supply;2
(b)unlawful possession of a restricted weapon;3
(c)unlawful possession of ammunition (x 2);4
(d)unlawful possession of a pistol;5
(e)possession of utensils for methamphetamine;6 and
(f)possession of utensils for cannabis.7
[2] Mr Porter appeals against that sentence on the basis it was manifestly excessive because the Judge adopted a starting point that was too high and failed to provide appropriate discounts for Mr Porter’s personal mitigating factors. It is submitted a sentence of home detention was appropriate in the circumstances.
Facts
[3] On 11 December 2020 police executed drug-related search warrants at Mr Porter’s address in Prebbleton. This included searches of Mr Porter’s two motor vehicles. Police also conducted a search of his lock-up storage unit in Rolleston. On the same day Mr Porter arrived at the Community Probation office at Annex Road, Christchurch, in a Toyota vehicle, for which a search warrant was also sought and granted.
[4] Inside the Toyota, police located a .22 cut-down Ruger pistol, along with 10 rounds of .22 calibre ammunition and electronic scales. From the search of the Prebbleton address, police located a commercial quantity of methamphetamine (estimated to be 23.5 grams), $22,000 in cash and a large amount of cutting agent.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2) – maximum penalty of life imprisonment.
3 Arms Act 1983, s 45(1) – maximum penalty of four years’ imprisonment and/or a fine of $5,000.
4 Arms Act, s 45(1) – maximum penalty of four years’ imprisonment and/or a fine of $5,000.
5 Arms Act, s 50(1)(a) – maximum penalty of three years’ imprisonment and/or a fine of $4,000.
6 Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year’s imprisonment and/or a fine of $500.
7 Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year’s imprisonment and/or a fine of $500.
Police also located a bong and a pipe in Mr Porter’s bedroom next to his bed, as well as 14 rounds of .22 calibre ammunition. During the search, Mr Porter’s partner provided her phone which held extensive drug tick-lists in Mr Porter’s name indicating drug dealing in the tens of thousands of dollars. Mr Porter’s partner told police that Mr Porter had made these entries on her phone. From the search of Mr Porter’s lock-up, police also located a taser and a 12-gauge shotgun round. Neither Mr Porter nor his partner hold a firearms licence.
District Court decision
[5] The Judge took the methamphetamine possession offending as the lead charge. He held that the offending sat squarely within band two of Zhang v R because of the quantity of methamphetamine and cash located.8 The Judge also placed weight on the large amount of cutting agent found and evidence of past dealing by way of the tick-list, which indicated Mr Porter was not “just a bottom-line dealer” but supplying significant amounts of methamphetamine. The Judge considered this was not a supply operation designed to only fund Mr Porter’s drug use. Having taken into account the authorities referred to him,9 the Judge adopted a starting point of three years and eight months’ imprisonment.
[6] The Judge uplifted the starting point by 15 months for the firearms charges and by three months for Mr Porter’s previous convictions for supplying methamphetamine. This provided an adjusted starting point of five years and two months’ imprisonment.
[7] The Judge then applied a discount of 15 per cent for Mr Porter’s addiction and the rehabilitative steps he had taken since the offending to address it, including the completion of a number of courses. The Judge provided a further 10 per cent discount to reflect the matters outlined in the s 27 report and their bearing on Mr Porter’s addiction issues, and a 20 per cent discount for his guilty pleas, which were entered at the stage of a pre-trial callover. From the resulting sentence of two years and
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
9 Joyce v R [2020] NZCA 124; Govender v R [2019] NZHC 3212.
10 months’ imprisonment, the Judge then applied a discount of four months for the approximately eight months Mr Porter had spent on “home detention”.10
[8] The end sentence was therefore one of two years and six months’ imprisonment. An order for forfeiture of the $22,000 cash was also made.
Principles on appeal
[9] 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.11 As the Court of Appeal commented in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.12 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.13 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.
Submissions
Appellant’s submissions
[10] On behalf of Mr Porter, Mr Bucher submitted the starting point adopted by the Judge was manifestly excessive. While he accepted there was an element of commerciality to the offending, he submitted the Judge failed to properly take into account that Mr Porter’s offending was carried out primarily to sustain his significant methamphetamine addiction. Mr Bucher also submitted the Judge failed to consider that this was small-scale and street-level drug offending as evidenced by the relatively modest quantity of methamphetamine found. Furthermore, he submitted the starting
10 This appears to be an error as Mr Porter in fact spent this time on electronically monitored bail (EM bail), which the Judge identified earlier in his decision.
11 Criminal Procedure Act 2011, ss 250(2) and 250(3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
13 Ripia v R [2011] NZCA 101 at [15].
point adopted was inconsistent with similar cases. While Mr Bucher accepted Mr Porter was found with more cash than in many of the cases cited, he argued that in each of those cases there were other indicators of supply and, in some of them, actual evidence of transactional supply. He submitted a starting point of two years and nine months’ imprisonment was appropriate.
[11] Secondly, Mr Bucher submitted the Judge failed to provide appropriate discounts to reflect Mr Porter’s personal mitigating factors. He argued Mr Porter’s causative methamphetamine addiction and the rehabilitative steps he had taken on his own initiative while subject to electronically monitored bail to address the underlying causes of his offending, merited more substantial credit. He submitted it is difficult to envisage what more Mr Porter could have done while on EM bail to address his addiction issues and that the reports indicate the intervention was successful. In these circumstances, he submitted a discount in the range of 30 per cent for these matters was justified.
[12] In his written submission, Mr Bucher also argued that, pursuant to s 10B of the Sentencing Act 2002, the Court was required to take into account any instrument forfeiture order that is made, and that a discount in the vicinity of three months was justified for the $22,000 cash that was found and ordered to be forfeited.
[13] After such adjustments were made, Mr Bucher argued the sentence would fall within the range where home detention could be considered. Here, it was submitted the purposes and principles of sentencing could have appropriately been met by a sentence of home detention. He highlighted that the presumption in favour of imprisonment could be overcome because Mr Porter has accepted responsibility for the offending and demonstrated real rehabilitative prospects. Mr Bucher submitted that if the Court is not of the view that the end sentence is within the range where home detention can be considered, it is nonetheless relevant that Mr Porter has spent a significant period (183 days) in custody in relation to these charges. Citing Kidman v R, he suggested the Court could take the time served into account in order to bring the end sentence below two years so that home detention could be considered.14
14 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.
Respondent’s submissions
[14] For the Police, Ms Fiennes submitted there was no error in the approach taken by the Judge and the appeal should be dismissed. Firstly, she submitted the starting point adopted was within range as Mr Porter’s offending sits clearly within band two of Zhang. Ms Fiennes accepted Mr Porter suffered from a methamphetamine addiction and a lower starting point may have been warranted if Mr Porter’s offending was solely driven by addiction. However, she argued this was not the case here as Mr Porter was not a “bottom-line dealer” solely motivated by his addiction, but was engaged in more than small-scale offending as evidenced by the tick-list, scales, and amount of cash and cutting agent found. Ms Fiennes therefore submitted this offending falls between the lesser and significant roles articulated in Zhang. She further argued that other cases illustrate the starting point was within the available range and that the Judge could have imposed a sentence of four years’ imprisonment.
[15] In relation to the discounts provided, Ms Fiennes accepted Mr Porter suffered from and sought treatment for his methamphetamine addiction. However, she submitted a 30 per cent discount was not appropriate here because the low-level commerciality of the operation pointed against addiction being the sole cause of Mr Porter’s offending and that the cash, equipment and firearms found indicate it produced a considerable income. She argued there is no evidence Mr Porter’s addiction prevented him from making rational choices and a discount of 15 per cent for his addiction and rehabilitative efforts was clearly within range.
[16] Ms Fiennes further submitted the forfeiture order made by the Judge must have been made pursuant to s 32 of the Misuse of Drugs Act 1975, under which the Judge must have been satisfied the $22,000 in cash had been received by Mr Porter in the course of or consequent upon his methamphetamine offending. In this context, she argued s 10B of the Sentencing Act does not apply and no further discount is required to account for the forfeiture. Additionally, Ms Fiennes submitted no further discounts were required for the time Mr Porter spent in custody and that, where the appellant was driven by financial gain as well as addiction, a sentence of imprisonment was not manifestly excessive.
Analysis
Starting point
[17] The tariff judgment for methamphetamine offending is Zhang v R.15 There is no dispute that Mr Porter’s offending (possession of 23.5 grams) fell within band two of Zhang, which provides that a starting point of two to nine years’ imprisonment will be appropriate where the dealing involves between five and 250 grams of methamphetamine.16 Quantity is relevant because it provides a reasonable proxy for the social harm done by the drug and illicit gains made from its importation and sale.17
[18] The Court of Appeal held in Zhang that the role an offender performs in the offending will have an important influence on the categorisation of their culpability by enabling judges to properly assess the seriousness of the conduct and the criminality involved.18 The Court identified three categories of involvement - “lesser”, “significant” and “leading”.19 In providing guidance as to the role, the Court observed “role is a matter more likely to be known by the offender than the Crown” but in practice, the facts necessary to establish guilt will often justify inferences about role, knowledge and gain.20 Where those inferences are sufficient to prove an aggravating fact, an evidential burden will move to the offender to displace the inference.21
[19] Counsel referred to the following cases which they submitted were of assistance in determining the appropriate starting point:
(a)Tuuta v R:22 the appellant was found in possession of 16.3 grams of methamphetamine, $4,230 in cash, a sawn-off shotgun and 11 rounds of ammunition. The Judge considered the quantity was a little above the bottom of band two and the appellant’s role was slightly higher than the bottom of the “lesser” category. There was no persuasive evidence
15 Zhang v R, above n 8.
16 At [125].
17 At [103].
18 At [104], [110] and [118].
19 At [126].
20 At [127].
21 At [127].
22 Tuuta v R [2019] NZHC 2788.
the appellant was motivated solely or primarily by his own addiction. In light of Zhang, the Judge considered a starting point of three years was too high and two to two and a half years’ imprisonment would have been within range for the methamphetamine offending.
(b)Tregoweth v R:23 the appellant was stopped by police and found with
2.8 grams of methamphetamine, as well as $5,680 in cash, utensils and a number of weapons. A total of 40.3 grams was then found on him in prison. It had been accepted the appellant was involved in dealing, in part, to fund his own addiction and had a limited role. A starting point of two years and six months’ imprisonment was upheld on appeal.
(c)Sherriff v R:24 the appellant was observed weighing methamphetamine on a set of digital scales and police invoked powers to search her car. They located 10.96 grams of methamphetamine along with scales, a tick-list and $245 in cash. A search of her cell phone uncovered that she had offered to supply 18 grams over approximately 20 occasions in a 10-week period. The total amount of methamphetamine involved was therefore 28.96 grams. A starting point of two years and nine months’ imprisonment was not challenged on appeal, which reflected the appellant’s well-documented addiction that was driving her offending, and her lesser role towards the lower end of band two, albeit not at the lowest end.
(d)Tapine v R:25 the appellant was found in possession of 30 grams of methamphetamine, micro-scales, small unused zip-lock bags and $840 cash. At his address, two crossbows, a stun gun and glass pipes were also located. The Judge determined the appellant’s role did not fit perfectly into either the lesser or significant category. On one hand, he was likely motivated by his own addiction and there was no evidence he was directing others or was aware of the operation’s overall scale.
23 Tregoweth v R [2021] NZCA 311.
24 Sherriff v R [2021] NZHC 3414.
25 Tapine v R [2020] NZHC 977.
On the other hand, the quantity of methamphetamine was relatively high (to the point it would likely generate an income in excess of that required to finance his drug habit), his possession of equipment indicated his role was greater than just a distributor, and the presence of firearms indicated his dealing activities were at a level where personal protection was required. A starting point of three years’ imprisonment was upheld on appeal.
(e)Griffin v R:26 the appellant was found in possession of 37 grams of methamphetamine and faced various firearms charges. He was also found with $38,216 in cash and text message data indicated supply transactions to 18 individuals. The Judge reduced the starting point of four years’ imprisonment to one of three years and six months on appeal.
(f)Bailey v R:27 the appellant was found in possession of 3.231 grams of methamphetamine, $3,530 in cash, small empty zip-lock bags and scales. He had also offered to supply approximately 15.5 grams of methamphetamine on 18 occasions in weights varying from 0.25 grams to 7 grams. The Judge considered the appellant was a small-scale street dealer who was not addicted to methamphetamine but made a minor profit and therefore “walked the line between a significant and lesser role”.28 The Judge upheld a starting point of three years and three months’ imprisonment on appeal.
(g)Joyce v R:29 the appellant was found with 28.35 grams of methamphetamine, $12,885 in cash, a tick book, shotgun and two airguns. There were also cell phone messages indicating he had supplied 3.76 grams of methamphetamine. The Court of Appeal described the appellant as a street–level dealer who sold methamphetamine both to finance his drug habit and meet his living
26 Griffin v R [2020] NZHC 548.
27 Bailey v R [2021] NZHC 2225.
28 At [43].
29 Joyce v R, above n 9.
costs. However, it determined he also sold reasonably significant quantities of methamphetamine and likely generated a considerable cash income. The Court said the number of firearms he possessed also provided an indicator of the level of his dealing activities and, although he suffered from an addiction, there was no evidence it was such as to diminish his culpability. The Court consequently adopted a starting point of four years’ imprisonment.
[20] As in Tapine, Bailey and Joyce, I do not consider Mr Porter’s role fits neatly within either the lesser or significant categories because it involves elements referable to both. It is common ground that Mr Porter suffers from an addiction to methamphetamine, as is apparent from his possession of utensils and the rehabilitative progress he has subsequently made. While there is no suggestion Mr Porter was involved in a particularly sophisticated supply operation, an inference can clearly be drawn from the evidence that this was more than limited street-level offending solely or even primarily motivated by Mr Porter’s addiction. There was an element of commerciality to Mr Porter’s offending which placed him above a mere distributor, given the tick-list, scales and the significant amount of cash and cutting agent he was found in possession of. The quantity of methamphetamine Mr Porter possessed would likely have generated an income in excess of that required to purely finance his drug habit and the taser, pistol and ammunition he possessed are potentially indicative of the level of his dealing activities. In view of such commerciality and the degree of organisation displayed, there is no evidence to suggest Mr Porter’s addiction to methamphetamine impaired his ability to make a rational choice such as to diminish his culpability.
[21] Therefore, I consider Mr Porter’s role is appropriately categorised as somewhere between lesser and significant. Mr Porter’s offending was more serious than in Tapine where, although the offender was in possession of a larger quantity of methamphetamine, the presence here of more cash, cutting agent and tick-lists indicated a higher level of commerciality. His offending was also more serious than in Bailey as, in addition to the above reasons, Mr Porter also had more methamphetamine. I consider the offending is most analogous with Griffin and Joyce which provide for a range of between three years and six months and four years’
imprisonment. In this context, the starting point adopted by the sentencing Judge of three years and eight months, although stern, was not manifestly excessive. While Mr Porter had less methamphetamine and less cash than the offender in Griffin, it should be borne in mind that the focus on appeal in that case was the need for parity between the sentences imposed on the appellant and his co-offender which meant the four-year sentence imposed on the appellant was assessed largely in relation to the lenient three-year sentence given to his co-offender.
[22] In my view, the circumstances in Tuuta, Tregoweth and Sherriff are distinguishable from the present offending. The offending in Tuuta involved less methamphetamine and cash, and no further evidence of commerciality or of a causative addiction. The appeal was also heard only a week after the release of Zhang, which meant submissions were invariably “iterative” and without the benefit of a framework of similar authorities.30 In Tregoweth and Sherriff there was also more demonstrable evidence of the offenders’ addiction and the indicators of commerciality were not as strong as here.
Discount for addiction and rehabilitative steps
[23] The second ground of appeal advanced on behalf of Mr Porter is that his methamphetamine addiction and rehabilitative steps taken while on EM bail merited more substantial credit than the 15 per cent afforded by the Judge. No issue is taken with the 10 per cent discount provided for the matters set out in Mr Porter’s s 27 report, or the 20 per cent discount for his guilty pleas.
[24] The Court of Appeal in Zhang considered the personal mitigating factor of addiction particularly germane to methamphetamine offending and made several points. The Court acknowledged that strong pro-social tendencies may be overwhelmed by dependence,31 that addiction calls into question the effectiveness of deterrence,32 and that it calls for consideration of a rehabilitative response as part of
30 Tuuta v R, above n 22, at [12].
31 Zhang v R, above n 8, at [145].
32 At [146].
sentencing.33 However, the Court accepted “non-causative addiction will be of little mitigatory relevance”34 and that:35
… any such discount should be based on persuasive evidence, as opposed to mere self-reporting … Inasmuch as a stage two discount for mitigating circumstances is engaged, the onus of proof (to the civil standard) lies on the offender to establish the extent and effect of addiction.
[25] The Court continued to say that addiction may logically give rise to a discount of up to 30 per cent but this “depend[s] on the extent to which it mitigates moral culpability for the offending”.36
[26] In the present case, it is accepted Mr Porter suffers from a methamphetamine addiction. However, as discussed above, I do not consider the evidence is sufficiently persuasive for Mr Porter to be able to discharge the onus on him to establish his addiction was causative of his offending. I acknowledge the s 27 report indicates Mr Porter began using methamphetamine when he was a teenager and since 2016 has maintained gang connections who provided him with easy access to drugs. However, between the intervening period of 2010 to 2016, Mr Porter ceased offending and is reported to have abstained from drugs and become a qualified painter with his own business. This capacity to abstain and the low-level commerciality of the supply operation here point against addiction being the sole or primary cause of his offending.
[27] However, I accept that Mr Porter has engaged in significant rehabilitative interventions while subject to EM bail which have been aimed at addressing his addiction to methamphetamine. Mr Porter was bailed to the Ahikaa Trust in June 2021. A letter from the manager of the Trust outlines that Mr Porter “completed all the programmes that [it] has on offer” as well as an eight-week residential programme at the Salvation Army Bridge Mt Eden. A treatment summary form provided by Mr Porter’s case worker at the Bridge programme stated Mr Porter demonstrated a high motivation to change while facing “multiple behaviour challenges”. On his own initiative, Mr Porter also completed the 12-week Hikoi o Te Ngangara programme, a methamphetamine addiction education course. The
33 At [150].
34 At [147].
35 At [148], citing Sentencing Act 2002, s 24(2)(d).
36 At [149].
pre-sentence report writer also noted Mr Porter continued to report abstinence from substances and displayed “some positive change” since completing residential treatment but, in going on to recommend a sentence of imprisonment, observed that he needs to develop a strong support network and continue building on this change to avoid relapse into substance use.
[28] Mr Bucher referred to Keenan-Fry v Police, where Wylie J afforded a discount of 20 per cent for the “major part” addiction played in the offending.37 The Judge outlined it was clear the offender had genuinely sought to engage in rehabilitative efforts and commented: “It is difficult to see that [he] could have done much more”.38 A further 10 per cent discount was provided to recognise the offender’s various successful rehabilitative steps. However, in that case, the Court had the benefit of a pre-sentence report in which Mr Keenan-Fry advised he had been consuming on average between one and two grams of methamphetamine a day, an alcohol and drug treatment report prepared by Community Alcohol and Drugs Services that assessed him as suffering from severe methamphetamine use disorder, and a s 27 report disclosing that the offender joined a gang at an early age and faced persistent social, emotional and cultural disadvantage. Moreover, Mr Keenan-Fry had engaged in a significant number of rehabilitative programmes in custody, supported other participants and proposed to undertake further programmes. The evidence of addiction and extent of rehabilitative interventions undertaken in Keenan-Fry is clearly more comprehensive than in the present case.
[29] Conversely, in Joyce the Court of Appeal accepted the appellant had “longstanding dependency issues with methamphetamine”, had shown considerable insight into his addiction, was motivated to address his dependency issues, and had, to a similar extent to Mr Porter, completed an intensive rehabilitative programme and attended appointments focusing on relapse prevention.39 There, the Court held a discrete discount of approximately 10 per cent was appropriate to reflect the appellant’s dependency issues and his rehabilitative steps.
37 Keenan-Fry v Police [2021] NZHC 562 at [28].
38 At [31].
39 Joyce v R, above n 9, at [30]-[32].
[30] When considered in totality with the additional 10 per cent discount the Judge provided for Mr Porter’s personal circumstances as reflected in the s 27 report, and in view of the above authorities, I am satisfied it was open to the Judge to provide a 15 per cent discount for his addiction and rehabilitative efforts and the Judge did not err in doing so.
Discount for forfeiture
[31] Although the Judge did not explicitly state the legislative basis for making the forfeiture order, I accept he must have made the order pursuant to s 32 of the Misuse of Drugs Act 1975. If it was made under this section, Mr Bucher acknowledged no discount need be applied to the sentence under s 10B.
[32] In making the order, the Judge must have been satisfied the $22,000 in cash was received by Mr Porter in the course of or consequent upon his methamphetamine offending and I agree such a finding was clearly available on the evidence. Even if there was evidence some of the cash had come from legitimate sources, this would not constitute a mitigating factor because it is the availability of the money as the working capital of the enterprise that renders it liable to forfeiture.40 This cash was part and parcel of Mr Porter’s drug dealing activities. No further discount was required to account for the forfeiture order made in respect of the $22,000 cash.
Additional discounts for time spent in custody and on EM bail
[33] The Judge provided a discount of four months for the fact Mr Porter had “been on home detention and carried out the rehabilitative courses”.41 In referring to “home detention”, it appears the Judge intended to refer to the eight months Mr Porter had spent on EM bail since June 2021. There does not appear to be any objection to this discount.
[34] I accept the respondent’s submission that no further discounts are required for the time Mr Porter spent in custody. When an offender is sentenced to imprisonment, s 82 of the Sentencing Act provides that the Court must not, in determining the length
40 McKechnie v R [2018] NZHC 1811 at [5], citing Keen v R [2015] NZCA 221 at [15].
41 R v Porter, above n 1, at [28].
of the sentence, take into account any time spent in pre-trial custody. This does not mean that credit is not given for such time spent, but that it occurs administratively and automatically under s 91 of the Parole Act 2002. Those provisions do not apply where a sentence of home detention is imposed, in which case credit is given as part of the Court’s sentencing discretion.42
[35] In any event, given the elements of commerciality and financial gain here, coupled with the lack of evidence Mr Porter’s rational choice was materially diminished by his addiction, I do not consider this is an appropriate case to exercise the Court’s discretion to take time served into account so as to bring Mr Porter’s sentence within the range that home detention can be considered.43 An imprisonment sentence was justified here for the purposes of deterrence and denunciation given the presumption of imprisonment in cases involving methamphetamine offending,44 the repetitive and low-level commercial nature of Mr Porter’s offending and his risks of relapse in a domestic environment, as noted by the pre-sentence report writer.
Conclusion
[36] The appeal is dismissed. The end sentence reached of two years and six months’ imprisonment was within range and no discernible error was made by the Judge.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
Mr K Bucher, Barrister, Christchurch
42 Harris v Police [2022] NZHC 345 at [21]-[22], citing Simon France (ed) Adams on Criminal Law
– Sentencing (online ed, Thomson Reuters) at [SA82.03A].
43 Kidman v R, above n 14, at [15].
44 Misuse of Drugs Act, s 6(4).
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