Porter v The King

[2024] NZHC 1955

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-62

[2024] NZHC 1955

DARIUS MARVIN PORTER

v

THE KING

Hearing:	11 July 2024
Appearances:	W Nabney for Appellant P Patanasiri for Crown
Judgment:	16 July 2024

JUDGMENT OF MUIR J

Sentence Appeal

This judgment was delivered by me on 16 July 2024 at 3.00 pm,

………………………………… Registrar/Deputy Registrar

Solicitors:

Crown Law Office, Wellington

PORTER v R [2024] NZHC 1955 [16 July 2024]

Introduction

[1]    Mr Porter appeals his sentence handed down by Judge A J S Snell at the Rotorua District Court on 3 May 2024.1

[2]    Mr Porter was sentenced to seven years and four months’ imprisonment in respect of charges of;

(a)dangerous driving;

(b)unlawfully taking a motor vehicle;

(c)possessing methamphetamine for supply; and

(d)failing to comply with a prohibition.

[3]    Mr Porter appeals the sentence as manifestly excessive on the following grounds:

(a)The starting point was too high — the Court did not have sufficient regard to the limited role Mr Porter played in the offending.

(b)A full discount of 25 per cent for his guilty plea should have been allowed.

Summary of facts

[4]    The following summary of facts is based on the facts on which the sentencing Judge sentenced Mr Porter.

Possession of methamphetamine for supply and failing to comply with a prohibition

[5]    In the early morning of 12 August 2023 Mr Porter was driving a motor vehicle on State Highway 1. He had been earlier forbidden to drive by the police in July 2023. Mr Porter crashed his motor vehicle and police arrested Mr Porter shortly afterwards

1      R v Porter [2024] NZDC 9843.

at the scene. Pursuant to the arrest, Mr Porter was found to have 2.56 grams of methamphetamine, a thermal optic sight, a set of electronic scales, $2,055 in cash and two mobile phones.

[6]    As a result of police locating the methamphetamine, scales and cash, the police conducted a search of Mr Porter’s motel room. They located just over one kilogram of methamphetamine hidden in a wardrobe. There was also a third mobile phone and a $5 note to be used as a token with a methamphetamine exchange.

[7]    The police identified a secure  messaging  application  called  Threema  on Mr Porter’s mobile phone which revealed that he and other associates had been arranging with a person in Tūrangi to pick up the kilogram of methamphetamine. The $5 note was to be taken as a token to confirm the transaction. There were other conversations disclosed that revealed  a  joint  methamphetamine  enterprise  that  Mr Porter appeared to be involved with.

[8]In total, Mr Porter was located with 1006.76 grams of methamphetamine and

$2,055 in cash.

Dangerous driving

[9]    Mr Porter was located driving a motor vehicle in Palmerston North on 13 July exceeding the speed limit, driving on the wrong side of the road towards incoming traffic, driving at speed through a roundabout and then crashing into the rear of the victim’s motor vehicle.

Unlawfully taking a motor vehicle

[10]   On 10 September 2022, Mr Porter took a set of keys from an Avis Rental Car drop box. Mr Porter and an associate returned later on and took the motor vehicle to which the keys pertained and drove off in it.  The vehicle was valued at $24,750.  The vehicle was subsequently recovered undamaged about three months later in Hamilton.

Approach on appeal

[11]   The appeal is governed by s 250 of the Criminal Procedure Act 2011, which provides that the Court must allow the appeal if satisfied there is an error in the sentence and a different sentence should be imposed.

[12]   The relevant principles on appeals against sentence were summarised by the Court of Appeal in Tutakangahau v R:2

(a)a successful appeal requires identification of an error and the appellate court to be satisfied a different sentence should be imposed;3

(b)the appellate court does not start afresh nor simply substitute its own opinion for that of the sentencing judge — error must be shown, “whether intrinsically, or as a result of additional material submitted on appeal”;4

(c)if there is a material error, the appellant court will form its own view of the appropriate sentence;5

(d)although not referred to in s 250(2), whether a sentence is “manifestly excessive” provides a helpful means of examining the significance of the error to decide whether a different sentence should be imposed;6 and

(e)the focus is on whether the end sentence was within range, not the process by which that sentence was reached.7

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

3 At [27].

4 At [30].

5 At [30].

6      At [32]–[33] and [35].

7      At [36] and [40].

The District Court Decision

[13]   The Judge considered that Mr Porter’s methamphetamine offending placed him within band 4 of the Zhang v R8 bands with a role “at the bottom end of the significant range or the very extreme end of the lesser range” and set a starting point of 10 years’ imprisonment for the methamphetamine offending.9 The Judge noted that there was merit in the argument that Mr Porter played a lesser role but noted the evidence suggested this was not simply addiction driven offending.10 The Judge made his determination on Mr Porter’s role based on the quantities involved and how the methamphetamine was packaged, suggesting he would have known he was dealing with a wholesale and high level drug dealer.11

[14]   The Judge convicted and discharged Mr Porter for the charge of failing to comply with a prohibition.12

[15]   The Judge applied an uplift of six months for the dangerous driving and unlawfully taking a motor vehicle resulting in an overall starting point of 10 years and six months’ imprisonment.13

[16]   The Judge acknowledged personal aggravating factors including his recent possession of methamphetamine for supply and possession of cannabis for supply convictions, the fact the index offending was committed whilst on sentence for those matters, and some of this index offending was in breach of his bail on lesser offending.14 The Judge applied an uplift of six months for these aggravating factors.

[17]Regarding guilty plea, the Judge applied a 20 per cent discount noting:15

… I have listened very carefully to your counsel’s arguments that you should receive a 25 per cent discount and that your initial guilty plea in October of 2023 was a deemed plea from the judge. I noted that came after three earlier appearances. I am satisfied that here your actual plea did not occur until 2024

8      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

9      R v Porter, above n 1, at [29].

10     At [26] and [27].

11 At [28].

12 At [30].

13 At [31].

14 At [33].

15 At [34].

at a case review hearing set down and it is not quite clear on the record whether it was the second case review hearing or the first, but my own view is on the drug-related matter you should receive a 20 per cent discount for your pleas.

The Judge also gave a discount of one month for the guilty pleas on the police charges.16

[18]   The Judge then turned to personal mitigating factors noting the appellant’s addiction and trauma in the s 27 report. He also acknowledged the pre-sentence report noting that he is known as gullible and naïve, and has a lower risk of offending overall away from drug offending. The Judge applied a 15 per cent discount for these factors.17

[19]   Overall, from the 11 years imprisonment indicated, three years and eight months were deducted resulting in a final sentence of seven years, four months’ imprisonment. The Judge also sentenced the appellant to two months for dangerous driving and six months for unlawful taking of a vehicle, to be served concurrently.

Appellant’s submissions

Starting point

[20]   Mr Nabney for the appellant submits that the appellant was largely performing a lessor role in the offending because he:

(a)performed a limited function under direction;

(b)was motivated in part by his own addiction;

(c)had little expected financial gain as he was paid $2,000 and some methamphetamine for his own use;

(d)was paid in drugs to feed his own addiction; and

(e)had no influence on those above him in the chain of command.

16 At [35].

17 At [38].

[21]   Mr Nabney submits these factors suggest a starting point of eight years’ imprisonment is more appropriate. He submits that Miller v R can be distinguished because the appellant was a significant player in a large commercial drug operation.18 Mr Nabney says this differed to the appellant’s role as he was a courier under the direction of others. Mr Nabney says the decision of R v Hughes supports a starting point of eight years where the defendant was acting on instructions and involved 1.5 kilograms of methamphetamine.19

Guilty plea

[22]   Mr Nabney submits that it is clear that not guilty pleas were entered as a result of administrative barriers rather than the appellant wanting to plead not guilty. Pleas of not guilty were entered on a deemed bases as the appellant’s then counsel had been unable to provide disclosure and obtain instructions. He submits the appellant was entitled to have his counsel receive his disclosure and obtain instructions. As a result, he says the full 25 per cent discount for guilty plea is warranted.

[23]   In summary, Mr Nabney submits had the Court adopted a more appropriate starting point of eight years’ imprisonment and allowed the appropriate 25 per cent reduction for guilty plea, an appropriate end sentence of five years and five and a half months’ imprisonment (65.5 months).

Respondent’s submissions

Starting point

[24]   The Crown submits that the Judge was correct in finding that the appellant fell within band four of Zhang v R and that he played a role at the extreme end of lesser or the lower end of significant of the Berkland v R roles for the following reasons:

(a)The appellant had clear awareness and understanding of the scale of his own methamphetamine supply operation for commercial gain. He had participated in the planning of the meeting with the third party to

18     Miller v R [2020] NZCA 131 at [22].

19     R v Hughes [2015] NZHC 22.

retrieve the methamphetamine and was found in possession of materials that indicated his awareness and understanding of the operation.

(b)The appellant acted as more than a mere courier or a porter of the methamphetamine.

(c)The appellant was motivated by financial advantage.

(d)There is no evidence the appellant’s offending was driven by naivety, addiction, pressure, intimidation or exploitation from third parties.

(e)The appellant was found in possession of over a kilogram of methamphetamine, other various drug dealing related items, and cash.

[25]   The Crown references Clark v R20 and R v King21 in support of the Judge’s starting point. The Crown submits that the appellant’s offending is more serious than that in Clark v R as more methamphetamine is involved. The Crown also submits that the appellant’s offending is more serious than that in R v King as the present case features three times the quantity of methamphetamine found in R v King.

[26]   The Crown submits that in light of Miller v R referred to by the appellant, a starting point in excess of 10 years may well be justified. The Crown also says that the case of R v Hughes can be distinguished as the appellant played a more significant operational role than Mr Hughes who played a very limited role.

Guilty plea

[27]   The Crown submits that the strength of the case against the appellant was overwhelming.

[28]   The Crown submits that in light of the appellant having received the benefit of an amended charge that replaced the two existing methamphetamine charges, the timing of the guilty plea for the methamphetamine charge (plea being entered on the

20     Clark v R [2020] NZCA 641.

21     R v King [2022] NZHC 85.

second case review hearing), and the strength of the case against the appellant, the discount of 20 per cent was justified.

Uplift for previous convictions

[29]   The Crown notes that the uplift of six months’ imprisonment for the appellant’s previous relevant convictions, as well as for his offending while on bail and subject to sentence could have been greater. The Crown submits it was within range for a sentencing judge to impose a more significant uplift. In this sense, the Crown says it cannot be said that the overall sentence is manifestly excessive.

Discussion

Starting point

[30]   No issue is taken with the Judge’s placement of the offending within band 4 in Zhang v R.22 As such, a starting point of between eight and 16 years was indicated.  In the composite of considerations dictating placement within that band the only issue relevant to this appeal is the defendant’s role. Mr Nabney submits that it was akin to a courier only, that Mr Porter had no operational role and was involved simply in uplifting the one kilogram of methamphetamine located in his Tūrangi Motel unit from unknown suppliers, temporary storage and then delivery to or at the behest of the person from whom he was taking instructions and identified on a secure messenger application as “~Rebel_Sports”.

[31]   He emphases that although “tick lists” were located on the defendant’s phone which suggest that the defendant was also operating his own retail methamphetamine supply business, he was not being prosecuted for such offending. Likewise, although text communications with ~Rebel_Sports were suggestive of future, highly lucrative and large scale drug deals, he was not facing a conspiracy charge. He therefore asks me to focus exclusively on his role in respect of the offending for which Mr Porter was charged. I consider that submission appropriately made. Nevertheless, the message exchanges between Mr Porter and ~Rebel_Sports are relevant to the former’s

22     Zhang v R, above n 8.

understanding and awareness of the scale of the enterprise he was becoming involved with through this initial collection and storage.

[32]   Although I accept that Mr Porter’s role in the offending was less significant than ~Rebel_Sports (and obviously those further up the chain), I consider it understates his involvement to compare it to that of a simple courier. In active collaboration with ~Rebel_Sports, he arranged for uplift of the drugs, for temporary storage and on delivery. As in Miller v R23 he clearly had some awareness of the scale of the enterprise in which he was engaged. Albeit that the arrangements were made by ~Rebel_Sports, he gave effect to the agreed delivery mechanism by provision of the serial number of the $5 note used to authenticate the transaction. He supplied details of his registration plate. He was fully integrated into the delivery in that respect and was integral to the transaction.

[33]   Mr Nabney says that Mr Porter’s reward was limited to $2,000 plus some methamphetamine for his own consumption and that this confirms the very limited role he was fulfilling. I do not consider that I can safely proceed on that premise. There is no indication that the District Court Judge did either.  Although a sum of

$1,740 cash was located on Mr Porter at the time of his arrest, one of the exchanges which he had with ~Rebel_Sports on the day of the transaction refers to “$7,000 for this unit of eye”. That suggests that the financial rewards were higher than suggested. Whether the $7,000 was solely attributable to the uplift, storage and delivery or whether it included a component of reward for introduction to the relevant methamphetamine  cook  as  may  be  suggested  by  other  text  exchanges  with

~Rebel_Sports is uncertain.

[34]   What is apparent from the message exchanges however, is that ~Rebel_Sports regarded Mr Porter as a ‘partner’ or at least a putative partner. Nor did ~Rebel_Sports consider himself, by virtue of seniority in the relevant structure, as in a position to give the defendant unequivocal instruction and to expect adherence. That is indicated by an exchange of facts on the evening in question when, after taking delivery and storing the methamphetamine, the defendant indicated an intention to go to Taupo and catch

23     Miller v R, above n 18.

up with former prison “mates”. ~Rebel_Sports response was to strongly counsel against it but clearly, he did not consider he had the authority to forbid it. And although the defendant’s response was an initial “good call mate” he decided nevertheless to go to Taupo, in the course of which he had the accident which ultimately resulted in the mutual enterprise being discovered.

[35]The Judge was in my view also entitled to consider the exchanges between

~Rebel_Sports, and the defendant about future lucrative drug related activities where weekly returns of up to $60,000 would be split three ways including the cook, in terms of a realistic assessment of whether, in relation to the specific offending in question the defendant was acting as a pure functionary.

[36]   I have considered the cases cited to me by counsel. In my view, Mr Porter’s role was not as significant as that of the defendants in either Clark v R24 (starting point of nine years and six months upheld on appeal) or R v King25 (starting point of eight years and nine months imposed) but by the same token, the quantity of drugs involved was significantly larger at just over one kilogram. Quantity remains a highly relevant factor in assessing culpability in that it remains a reasonable proxy for the social harm done by methamphetamine.

[37]   In my view, the Judge’s identification of the offending as being at “the bottom end of the significant range or the very extreme edge of the lesser range” may slightly overstate the defendant’s role which I would simply place in the upper end of the lesser range, but these are matters of small degree.   In any event, in the context of a      one kilogram transaction involving a defendant with an upper end lesser role, there was no requirement to default to the very bottom of the eight to 16 year range.

[38]   In my view, the appropriate starting point was in the range of nine to 10 years. In that context, the Judge’s starting point can be regarded as stern but not inappropriate. I am unpersuaded therefore by this ground of appeal.

24 Clark v R, above n 20. Defendant running his own supply operation. Intercepted communications showed he had received 420 grams of methamphetamine and was to receive a further 137 grams. At time of arrest in possession of $33,870 in cash.

25 R v King, above n 21. Total amount of methamphetamine in question 350 grams. Defendant described as a “busy retailer of methamphetamine for commercial gain”.

Discount for guilty plea

[39]   The Judge allowed a discount of 20 per cent for guilty pleas in respect of the Crown charges26 and a discount of one month on the six months uplift he identified for the police charges27 (17 per cent). Mr Porter does not challenge the second of these discounts.

[40]   Mr Porter’s first appearance was on 12 August 2023. This related to the methamphetamine located on his person. The first appearance for possession of the one kilogram for supply occurred on 18 September 2023. A first case review hearing occurred on 27 November 2023. At that point not guilty pleas were entered on a deemed basis, pending disclosure, consideration of which was, I accept, necessary to consider the lawfulness of the various searches undertaken. A second case review hearing was scheduled for 19 February 2024. In the interim counsel reached agreement to consolidate the two methamphetamine related charges into one representative charge. Guilty pleas were entered on 19 February 2024.

[41]   In these circumstances, guilty pleas may not have been entered at the earliest opportunity but there were explicable reasons for the delay, with the earlier plea a deemed plea to move matters forward while appropriate inquiries could be made. But the existence of such explanation does not give an automatic entitlement to a 25 per cent discount. As the Supreme Court observed in Hessell v R28, the credit that was given must reflect all of the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Here the Crown case was overwhelming. It was not an error to confine the discount to 20 per cent, even if other judges may have allowed slightly more up to a maximum of 25 per cent. No single “hard” discount applies in cases such as this. The discount was one available to the Judge without error.

26     Unlicensed driver fails to comply with prohibition and possession of methamphetamine for supply.

27     Unlawfully takes motor vehicle and dangerous driving.

28     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].

The position standing back

[42]   Even if the starting point was considered modestly too high or the guilty plea discount modestly too low, I am required to stand back and consider whether the end sentence was in range having regard to all the potential “moving parts”.

[43]   In that context, I find compelling the Crown’s submission that the six-month uplift recognised by the Judge for the defendant’s previous offending and for offending while on bail, was relatively benign. The relevant offending/bail history is as follows:

(a)In 2020, the appellant was convicted for possession of methamphetamine for supply and possession of cannabis for supply. The charges arose after the appellant, on 24 May 2019, was in possession of 405 grams of cannabis, 20.91 grams of methamphetamine, three mobile phones, and a set of electronic scales. He was sentenced to four years and 10 months’ imprisonment.

(b)In late 2022, after the appellant had committed the offending that resulted in the charges of dangerous driving and unlawfully takes a motor vehicle but had not yet been charged, he was recalled to prison in respect of his conviction for possession of methamphetamine for supply.

(c)The appellant was subsequently granted parole in January 2023. He was served with a summons requiring him to appear in the Palmerston North District Court on 31 January 2023 in respect of the driving and conversion charges.

(d)The methamphetamine-related offending took place on in August 2023, while the appellant was subject to parole conditions for methamphetamine offending and was on bail for the earlier charges.  A recall warrant was issued on 11 August 2023 — the day before the appellant’s offending.

[44]   This is, in my view, certainly a case where application of the Ward29 “incapacitation” principle was appropriate. It may even have been a case where, on account of the very high risk of reoffending, a sentence “longer than would result merely from the uplift for previous convictions that would otherwise be appropriate [was justified], in order to protect the community”.30 Mr Porter is a recidivist participant in the commercial methamphetamine market. An uplift of one year or more would have been unremarkable in that context.

Result

[45]I dismiss the appeal.

Muir J

29     R v Ward [1976] 1 NZLR 588 (CA), confirmed as remaining applicable under the Sentencing Act 2002 in R v Piper CA345/05, 12 September 2006 at [9].

30     See Mathew Downs (ed) Adams or Criminal Law — Sentencing (online ed, Thomson Reuters) at [SAC 4(a)].