Pryor v Police
[2022] NZHC 1011
•12 May 2022
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2022-463-42
[2022] NZHC 1011
BETWEEN TARRYN CECILLY PRYOR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 May 2022 Appearances:
A de Villiers for Appellant P F Lee for Respondent
Judgment:
12 May 2022
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 12 May 2022 at 2 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Tauranga
PRYOR v NEW ZEALAND POLICE [2022] NZHC 1011 [12 May 2022]
[1] Ms Pryor entered guilty pleas to several drug-related charges in the District Court. These comprised offering to supply methamphetamine (x 3), being in possession of methamphetamine and cannabis for supply and supplying methamphetamine. In addition, Ms Pryor pleaded guilty to charges of being in unlawful possession of a pistol and ammunition and failing to provide the police with the PIN number needed to gain access to her cellphone. On 2 February 2022 Judge L M Bidois sentenced Ms Pryor to an effective term of three years imprisonment on all charges.1
[2] Ms Pryor appeals against sentence on the basis that the Judge erred in principle in constructing the sentence and failed to apply adequate discounts for mitigating factors. She contends these errors led to an end sentence that was manifestly excessive.
The charges
[3] The charges related to two incidents, one of which occurred in May 2021 and the other in November 2021.
The offending in May 2021
[4] At about 1.30 am on 12 May 2021 the police stopped a vehicle in which Ms Pryor was travelling as a passenger. She provided them with false details of her identity to disguise the fact that she was in breach of the curfew conditions of her bail. The police searched a handbag in her possession and found a small set of scales, together with methamphetamine utensils. When the police requested the PIN number for her cellphone she refused to provide it.
[5] The police subsequently obtained a production order to enable them to search the data stored on Ms Pryor’s cellphone. This disclosed that she had supplied or offered to supply methamphetamine to unknown persons on numerous occasions between 25 April and 12 May 2021. The police were able to establish that between
1 New Zealand Police v Pryor [2022] NZDC 3404.
3 and 11 May 2021 Ms Pryor had offered to supply a total of 5.75 grams of methamphetamine to unknown persons.
The offending in November 2021
[6] On 11 November 2021 the police executed a search warrant at Ms Pryor’s address. She and her partner were both present when the police executed the warrant. At that time they were living in a sleepout at the address. Ms Pryor was on electronically monitored bail whilst awaiting sentencing on the charges relating to the offending in May 2021.
[7] The police found a small jewellery box beside a double bed in the sleepout. Inside the box they found six small plastic zip lock bags, each of which contained between .03 and .5 of a gram of methamphetamine. The total combined weight of methamphetamine in the bags was 3.1 grams. The police also found a methamphetamine pipe and a cannabis bong in the sleepout.
[8] Inside a wardrobe in the sleepout the police found a plastic container that contained several items indicating involvement in drug-related activity. These included small plastic bags of varying sizes, digital scales, a container bearing methamphetamine residue, scooping devices and approximately 66 grams of quality cannabis head material.
[9] The police also found a .22 calibre revolver loaded with eight live rounds of ammunition inside a handbag in a locked cupboard within the same wardrobe.
[10] The police subsequently obtained a production order in relation to a SIM card found in a cellphone in the bedroom. This confirmed that between 13 October 2021 and 9 November 2021 Ms Pryor had sold methamphetamine totalling 1.75 grams on three occasions. A fourth sale of methamphetamine was also confirmed, but the police were unable to identify the quantity sold. On two further occasions Ms Pryor had offered to sell methamphetamine totalling two grams and on a further occasion she offered to supply methamphetamine of an undetermined amount.
The sentence
[11] The Judge took the lead charges as being those relating to the search of Ms Pryor’s property in November 2021. He took a starting point of 18 months imprisonment on the charges of supplying methamphetamine. He increased this by 12 months to reflect the cannabis found at Ms Pryor’s address and the three grams of methamphetamine she had in her possession. He further increased the sentence by eight months to reflect the fact that the police had also found the pistol and ammunition. This led to a starting point of 38 months imprisonment for the offending in November 2021.
[12] The Judge then observed that a starting point of around two years four months imprisonment would have been appropriate on a stand alone basis for the charges relating to the offending in May 2021. However, he reduced this to 16 months to reflect totality principles. This led to an end starting point of 54 months imprisonment on all charges before taking into account aggravating and mitigating factors personal to Ms Pryor.
[13] The Judge increased the sentence by six months to reflect Ms Pryor’s previous convictions for similar offending and the fact that the offending in November 2021 had occurred whilst Ms Pryor was on electronically monitored bail. This produced a sentence of five years imprisonment before taking into account mitigating factors.
[14] The Judge applied a discount of 25 per cent to reflect guilty pleas and ten per cent to reflect the fact that Ms Pryor’s offending had been driven by her addiction to methamphetamine. He then applied a further discount of five per cent to reflect mitigating factors identified in a report tendered under s 27 of the Sentencing Act 2002. The resulting discount of 40 per cent reduced the sentence by two years to one of three years imprisonment. The Judge imposed concurrent sentences of three years imprisonment on the charges of supplying methamphetamine. He imposed lesser concurrent sentences on the remaining charges.
The appeal
[15] Mr de Villiers advances two grounds in support of his overall submission that the end sentence was manifestly excessive. First, he contends that the Judge erred by treating the two sets of charges as separate offending, each of which required its own starting point in terms of sentence. He says this ignored the reality that the two sets of offences comprised Ms Pryor’s ongoing activity as a low level dealer in both methamphetamine and cannabis. He submits this resulted in an end starting point that was too high.
[16] Mr de Villiers also submits the Judge ought to have applied a greater discount to reflect the mitigating factors identified in the s 27 report.
Decision
The structure of the sentence
[17] I accept Mr de Villiers’ submission that the approach the Judge adopted in relation to the drug-related offending was potentially problematic. The offending in both incidents was similar in kind even though it occurred on two separate occasions. Global starting points will generally be appropriate where offences are of a similar kind and occur within a short space of time. This reflects the fact that, although charges may relate to separate incidents, they nevertheless reflect ongoing offending of the same type. The selection of a separate starting point for each set of charges runs the risk that the final starting point may be too high having regard to the overall culpability of the offending.
[18] As a cross-check on the outcome in the present case I therefore propose to reconstruct the sentence by selecting a global starting point for the methamphetamine offending and then increasing the sentence to reflect the cannabis charge and the charges relating to the pistol and ammunition.
[19] The starting point for the methamphetamine offending needs to reflect the fact that it involved the possession and supply of a total of 12.6 grams of methamphetamine over a six month period. This means the offending falls towards the lower end of Band
2 identified by the Court of Appeal in Zhang v R.2 The starting point for sentences imposed for offending in this band will be between two and nine years imprisonment.3
[20] Ms Pryor’s role was that of a street level dealer selling methamphetamine both for commercial gain and to support her own use of the drug. I accept Mr de Villiers’ submission that on a stand alone basis the methamphetamine offending justified a global starting point of around two years six months imprisonment.
[21] Any uplift to reflect the cannabis offending needed to recognise that the offending related only to the possession of 66 grams of cannabis found in November 2021. Ms Pryor’s role as a retailer of cannabis was therefore similar to that which she played in relation to methamphetamine. It therefore fell within category 2 identified by the Court of Appeal in R v Terewi, which generally calls for a starting point of between two and four years imprisonment.4
[22] However, the Court in Terewi recognised that offending within this band may require a lesser starting point where sales are infrequent and of limited extent.5 I consider Ms Pryor’s cannabis offending fell within this category. A starting point on the cannabis charges of no more than 12 months imprisonment could be justified on a stand alone basis. I accept Mr de Villiers’ submission that an uplift of no more than six months was required having regard to totality principles. This results in a final starting point on the drug-related charges of three years imprisonment. This adequately reflects Ms Pryor’s role as a low level retailer of both cannabis and methamphetamine.
[23] A further uplift needs to be applied to reflect the firearms charges. On their own they would attract a starting point of at least 18 months imprisonment to reflect the fact that the pistol was loaded and the offending occurred in a drug dealing context. Mr de Villiers takes no issue with the uplift of eight months the Judge applied to reflect these charges and I consider it reflects a correct application of totality principles.
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
3 At [125].
4 R v Terewi [1999] 3 NZLR 62 (CA) at 65.
5 At 65.
[24] The uplift of six months the Judge applied to reflect aggravating factors personal to Ms Pryor was also within the available range. A sentence of four years four months imprisonment was therefore appropriate before taking into account mitigating factors. This is to be contrasted with the sentence of five years imprisonment the Judge selected after taking into account the same factors. It follows that the sentencing method the Judge adopted resulted in a sentence that was manifestly excessive having regard to Ms Pryor’s overall culpability.
The level of discount applied to reflect the mitigating factors identified in the s 27 report
[25] Mr de Villiers does not take issue with the discounts the Judge applied to reflect guilty pleas (25 per cent) and Ms Pryor’s addiction issues (ten per cent). He contends, however, that the Judge ought to have provided a discount greater than five per cent to reflect mitigating factors identified in the s 27 report.
[26]The Judge dealt with this issue as follows:6
[21] As to cultural factors, I give you a five per cent reduction. I do that on this basis. You were using drugs before your father’s death. You got a cultivation from 2018, for social use then it increased. You were 30 years of age when you started making your own choice as to who you were associating with, who you were living with, which was a gang member and you did not have a dysfunctional upbringing where you were beaten and assaulted and exposed to violence and started using drugs at an early age. Of course there is a reference to some sexual trauma but when you were confronted about that you denied it and of course that did not lead you to go on to use substances in any way. You started socially and that increased from that. So you had a good upbringing. Your relationship issues were your choice. You picked them and therefore you live with the consequences of those.
[22] As to the grief [from the death of your father], I understand the implications there and you might have increased your methamphetamine, but as a 30-year-old you should have done something about that and so I put you in a different category than many of the other offenders that I see.
[27] The level of discount to be provided for factors identified in a s 27 report is very much a matter of discretion for the sentencing Judge. In the present case the Judge clearly considered some reduction was required to reflect this factor. He was
6 New Zealand Police v Pryor, above n 1.
plainly concerned, however, that there was little in the way of causative nexus between the offending and the factors identified in the report.
[28] I do not consider any additional discount was required to reflect this factor, and largely for the reasons given by the Judge. Furthermore, I consider an overall discount of 40 per cent, or 21 months, was sufficient to reflect mitigating factors overall. When this is applied to the adjusted starting point of four years four months imprisonment it results in an end sentence of two years seven months imprisonment. It follows that the sentence of three years imprisonment that the Judge imposed was manifestly excessive.
Result
[29] The appeal against sentence is allowed. The sentences of three years imprisonment imposed on the charges of supplying methamphetamine are quashed. In their place I impose concurrent sentences of two years seven months imprisonment. The sentences imposed on the other charges remain intact.
Lang J
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