Quinlivan v Police
[2014] NZHC 3163
•11 December 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000199 [2014] NZHC 3163
LIAM PATRICK QUINLIVAN Appellant
v
NEW ZEALAND POLICE Respondent
Hearing: 10 November 2014 Appearances:
Bridie Murphy for the Appellant
Ben Finn and Steven O'Connor for the RespondentJudgment:
11 December 2014
RESERVED JUDGMENT OF MOORE J [Appeal against sentence]
This judgment was delivered by on 11 December 2014 at 11:00am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
QUINLIVAN v NEW ZEALAND POLICE [2014] NZHC 3163 [11 December 2014]
Introduction
[1] Early in 2013 two cars, a BMW and a Subaru, were stolen from different parts of Auckland.
[2] About six months later the cars were discovered by the owner of a barn near Waiwera. The owner of the barn was the father of the partner of Liam Patrick Quinlivan, the appellant. The barn’s owner had earlier given Mr Quinlivan and his partner permission to store some of their possessions in the barn. The cars had been fitted with false number plates. The barn’s owner had no idea whose cars they were or what they were doing in his barn. So he called the Police.
[3] It did not take the Police long to make the connection with Mr Quinlivan. His Stanmore Bay home was searched. That search revealed a number of stolen items including an electric fence unit, a socket set, a circular saw, a bender and cutter and a CCTV camera. The camera and cutting tool had been stolen in separate burglaries earlier in the year.
[4] In explanation to the Police Mr Quinlivan claimed he had no knowledge of the two stolen cars found in the barn. He said he bought the camera from an associate and that the bender and cutting tool belonged to a friend who had admitted stealing the items from the farm property. He was charged with various receiving and theft charges.
[5] A month later Mr Quinlivan was stopped in his car by the Police a short distance from his home. The Police saw a silver extendable knife on the front passenger seat and advised Mr Quinlivan that they intended to search him and his car.
[6] In his trousers the Police found two glass pipes and in one of his hands he had a plastic ziplock bag which contained 6.9 grams of methamphetamine.
[7] A search of his car located a black bag under the driver’s seat containing a set of digital scales, a plastic tube, 15 small plastic ziplock bags, a money bag containing $2,300 and a black paint ball pistol.
[8] Mr Quinlivan was arrested and charged with possession of methamphetamine for supply and unlawfully carrying an imitation firearm.
District Court decision
[9] Mr Quinlivan appeared for sentence on 20 May 2014 before Judge Wade in the North Shore District Court. The Judge noted that at the age of 24, Mr Quinlivan had:1
… gone off the rails in a spectacular manner as a result of which [he was]
before this Court for sentencing on no fewer than nine offences.
[10] He noted that the appellant had no relevant previous convictions and that he was regarded as a good employee. The pre-sentence report recommended a sentence of home detention or community detention.
[11] The Judge took the charge of possession of methamphetamine as the lead offence and considered that the offending fell within band 2 of R v Fatu.2 He adopted a starting point of three years’ imprisonment which he uplifted by 12 months to take into account five receiving charges which involved goods with a total value in excess of $19,000 as well as the remaining charges. The Judge noted that a full guilty plea discount was not warranted in the circumstances because there was some delay before the pleas were entered. Nonetheless, his Honour gave a discount of 25 per cent which included a discount for the guilty pleas as well as a discount in
recognition of Mr Quinlivan’s previous good character. The end sentence imposed was three years’ imprisonment on the methamphetamine charge with 12 months’ imprisonment imposed concurrently on the other receiving and firearms charges. He
was convicted and discharged on the remaining charges.
1 Police v Quinlivan DC North Shore CRI-2014-044-349, 20 May 2014.
2 R v Fatu [2006] 2 NZLR 72 (CA).
Appellant’s submissions
[12] Ms Murphy, for Mr Quinlivan, advances two grounds of appeal. First, she submits that in the course of acting for Mr Quinlivan his previous counsel acted incompetently to such an extent that Mr Quinlivan was not given the appropriate credits in mitigation of his ultimate sentence. Secondly, she submits that as a consequence Mr Quinlivan was denied the opportunity for consideration of a community-based sentence and that the sentence imposed was excessive in the circumstances. By way of background she submits Mr Quinlivan had only two previous driving related convictions and no drug convictions. The summary of facts was accepted and, she submits, at the time of the offending he had a significant drug addiction problem. She submits that the methamphetamine located by the Police was for Mr Quinlivan’s personal use.
[13] It seems common ground that prior to this offending Mr Quinlivan had achieved well at school and at university until he was introduced to methamphetamine. As a result, he was unable to meet the demands of study and dropped out of his courses. The offending was to fund his drug addiction.
[14] Ms Murphy submits that Mr Quinlivan has the support of a close family and friends. She submits that he is remorseful and wishes to attend a drug and alcohol rehabilitation facility.
[15] She submits that through the failures of his counsel, Mr Quinlivan was not advised of the likelihood he would receive a sentence of imprisonment nor was he advised of what courses of action he might have pursued in order to minimise the risk of incarceration. Specifically Mr Quinlivan was not made aware of the benefit of undertaking a rehabilitation course prior to imprisonment. Furthermore, she submits that he was not advised of the availability of a sentence indication, a process which would have focused Mr Quinlivan’s mind on what he might have been able to do in order to mitigate the final sentence.
[16] While properly accepting that the pre-sentence report was not positive, Ms Murphy submits the report’s recommendation of a sentence of home detention or community detention reinforced Mr Quinlivan’s mistaken belief that he was not at
threat of imprisonment. As a consequence, Ms Murphy submits he was denied the appropriate credit for rehabilitative efforts. Had such a course been taken a sentence of home detention may have been open to the Court.
[17] In any event, Ms Murphy submits that a starting point of less than three years was available, suggesting that the appropriate starting point would have been one of two years. While conceding that there was some indicia of supply located in Mr Quinlivan’s car there was no “tick book” or record of sales suggesting Mr Quinlivan was dealing in the drug. Mr Quinlivan said that he carried the scales to avoid being ripped off by those he was buying from. No explanation, however, has been given for the 15 ziplock bags. He explained the cash belonged to his partner.
[18] Ms Murphy submits that an uplift of six months’ imprisonment would have been more appropriate to reflect the totality of the offending. In terms of mitigating factors she submits that discounts should be have been awarded for obtaining full- time employment and the appellant’s remorse and, additionally, a full 25 per cent discount should have been given for the plea of guilty.
[19] Finally, she submits that a sentence of 12 months’ home detention would be the least restrictive outcome in the circumstances.
Appeal against Sentence
Approach to appeal
[20] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[21] In any other case, the Court must dismiss the appeal.3
[22] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.4 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.5
[23] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:6
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[24] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.7
[25] I now turn to consider the grounds of appeal.
3 Criminal Procedure Act 2011, s 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
5 At [33], [35].6 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
7 Ripia v R [2011] NZCA 101 at [15].
Inadequate advice of counsel
[26] Mr Quinlivan was assigned legal representation on legal aid. His assigned counsel is an experienced criminal lawyer who has been in practice since 1976.
[27] Mr Quinlivan attended his counsel’s chambers on two occasions. The first was on 3 December 2013. The purpose of that meeting was to review the charges which Mr Quinlivan faced and to discuss what pleas would be entered. There is disagreement between Mr Quinlivan and his previous counsel as to some aspects of that meeting and in particular whether drug rehabilitation programmes were discussed and whether the issue of sentencing levels for methamphetamine possession for supply was covered. The result of this meeting was Mr Quinlivan confirmed his instructions that he would plead guilty to nine charges (including the methamphetamine charge) and not guilty to three, subject to an amendment to one of the charges and the summary and the withdrawal of another charge. A case management memorandum was filed recording this.
[28] It appears settled that Mr Quinlivan left that meeting having instructed his counsel on which charges he would plead guilty to and which he would contest.
[29] On 23 January 2014 guilty pleas were entered to six receiving charges and the methamphetamine charge. The balance of the charges were withdrawn. Mr Quinlivan was remanded for sentence.
[30] Mr Quinlivan’s next appearance was on 27 March 2014. Before this appearance Mr Quinlivan and his lawyer met to discuss what further charges he would plead guilty to. Mr Quinlivan signed his instructions. A guilty plea was entered to receiving the cutter and bender.
[31] Ms Murphy submits that the legal advice received by Mr Quinlivan was inadequate and resulted in Mr Quinlivan not being able to attract the appropriate credits in mitigation of his ultimate sentence. In particular, she submits that these defects effectively disqualified Mr Quinlivan for consideration of a community- based sentence.
[32] The particulars which Ms Murphy submits demonstrate counsel’s
inadequacies in this respect are as follows:
(a) Mr Quinlivan was not told of the likelihood he would receive a sentence of imprisonment until the day of sentence;
(b)he was not advised what course of action he should pursue in order to minimise the risk of imprisonment (apart from obtaining employment);
(c) he was not advised of the possibility of obtaining a sentence indication hearing which would have focused his mind on those matters which could operate to mitigate the final sentence;
(d)he instructed his counsel to try to negotiate the possession for supply charge to possession simpliciter. This was not done; and
(e) counsel did not file written submissions.
[33] The authorities dealing with the question of counsel incompetence are, almost exclusively, associated with appeals against conviction. The leading authority is R v Sungsuwan where the Supreme Court said:8
[7] Counsel error is not itself a ground of appeal under s 385(1) [of the Crimes Act 1961]. The inquiry is not into the competence of counsel but whether the verdict is unsafe through any deficiency in the trial, however caused.
…
[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel's conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
8 R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730.
[34] I accept the Crown’s submission that the comments in Sungsuwan are broadly applicable where there is a challenge to the sentence imposed on the grounds that the incompetence of counsel created a real risk of affecting the outcome on sentence.
[35] I propose to deal with each of the five heads of allegation below.
Failure to advise on likely sentence
[36] Both Mr Quinlivan and his former counsel have made affidavits. Both gave evidence at the hearing before me.
[37] Mr Quinlivan gave evidence he could not recall his lawyer discussing sentencing guidelines at either of the two meetings. He denied being shown any material relating to sentencing levels. He accepted that he was told that the worst case scenario might be imprisonment but that the first time he learned about the bands in Fatu was in the course of the sentencing itself.
[38] This claim needs to be weighed against Mr Quinlivan’s acceptance that he was aware the methamphetamine charge carried a maximum term of life imprisonment and that he believed that he learned this fact on the first day he appeared in Court and applied for bail. He accepted that he was worried about going to prison.
[39] Furthermore, Mr Quinlivan’s former counsel said he advised Mr Quinlivan of the case authorities in relation to the methamphetamine offending and, in particular, indicated that a sentencing starting point would be imprisonment. Indeed, he said he went further and actually referred Mr Quinlivan to the relevant hard copy pages in Adams’ on Sentencing. The two pages of handwritten contemporaneous notes he made at the time reinforce this recollection. Mr Quinlivan was told that case authority indicated that imprisonment was the most likely outcome on the methamphetamine charge alone without taking into account the earlier offending.
Failure to advise on rehabilitation
[40] Mr Quinlivan claims his lawyer failed to advise him he should be assessed for enrolment in a drug rehabilitation programme. He said that he was not informed of the necessity or utility of such a course for mitigation purposes. He claims he was, and remains, eager to engage in drug rehabilitation.
[41] In contrast, his former counsel gave a very different account. The contemporaneous notes record that Mr Quinlivan was “not keen” on drug rehabilitation because:
(a) he does not accept/believe that has a drug addiction/use problem; and
(b)he wants to focus on getting/maintaining a full-time job. Residential rehabilitation (if he had a drug addiction) would interfere with that.
[42] It is significant that the notes make specific reference to the CADS and Salvation Army programmes. This further supports counsel’s account that he specifically raised the issue of enrolling in a drug rehabilitation programme with Mr Quinlivan and that Mr Quinlivan flatly rejected it for the reasons noted above. The note records, “No!!!” after this part, indicating a level of vehement intransigence to the suggestion.
[43] Mr Quinlivan’s former counsel was adamant he discussed the question of mitigation of sentence and the wisdom of enrolling in a drug treatment programme such as CADS or the Salvation Army’s residential bridge programme noting that while this strategy would not necessarily avoid a prison sentence it could serve to mitigate a sentence on a charge of possession of methamphetamine for supply. He confirmed that Mr Quinlivan would not acknowledge he had an addiction issue. He was more focused on obtaining full-time employment and indicated that a rehabilitation programme would detrimentally effect his employment.
Failure to advise of possibility of obtaining a sentence indication hearing
[44] Ms Murphy submits that had Mr Quinlivan’s former counsel discussed the availability of a sentence indication hearing this would have focused Mr Quinlivan’s mind on those matters which could operate to mitigate the final sentence.
[45] Mr Quinlivan’s former counsel accepted that he did not discuss this option with Mr Quinlivan. He did not accept, however, that obtaining a sentence indication would have provided Mr Quinlivan with an opportunity to focus on the need for rehabilitation, particularly if a sentence of imprisonment was indicated. He said it was not always a saving grace because he had clients who had completed drug rehabilitation who still ended up with a sentence of imprisonment.
[46] While I accept the possibility that had discussion about a sentence indication occurred it might have resulted in Mr Quinlivan obtaining an insight into the benefits of rehabilitation in the context of sentence mitigation. However, the earlier discussion in which Mr Quinlivan did not accept he had an addiction and his apparently emphatic rejection to enrolling in rehabilitation due to the potential effect on his employment, strongly suggests there would have been limited benefit in discussing the option of a sentence indication.
Failure to engage in plea negotiations
[47] Ms Murphy criticises Mr Quinlivan’s former counsel for failing to engage in discussions with the prosecution with a view to reducing the charge to one of possession simpliciter.
[48] However, this was not a case where the prosecution was solely reliant on the presumption. Mr Quinlivan faced some major obstacles in defending this charge. Digital scales and 15 small plastic ziplock bags were found in his car. He admitted they were his. Although the quantity of cash located in the car may have had an innocent explanation this, together with the other items, provided strong circumstantial evidence of dealing.
[49] In the circumstances any approach to the Police with a view to negotiating a lesser charge would, inevitably, have failed.
Failure to provide written submissions
[50] Ms Murphy submits that in a case of such seriousness, competent counsel would have provided written sentencing submissions. She submits that had such a course been adopted it may well have “ameliorated the sentence imposed”.
[51] In my view this ground must necessarily fail. Despite these being guidelines designed to provide assistance to a sentencing Judge, the bands in Fatu are reasonably prescribed. How written submissions would have made a material difference is unexplained.
[52] It is common practice in the District Court, even in cases involving sentencings involving methamphetamine for supply, for counsel not to provide written submissions. Neither the prosecution nor the defence provided written submissions.
Summary
[53] I am left in no doubt whatsoever that Mr Quinlivan’s former counsel’s account of the events is reliable and is to be preferred to that Mr Quinlivan’s. The oral evidence is supported, either in full or in part, by his contemporaneous handwritten notes.
[54] I am satisfied that there is no basis in fact or in law to support Mr Quinlivan’s claim that his lawyer was incompetent let alone to the extent that any professional failures resulted in a real risk that Mr Quinlivan received a more severe sentence than he might otherwise.
Manifestly excessive
[55] Ms Murphy submits that the offending in the present case sits at the very lower end of band 2 of Fatu. She correctly submits that this band is wide and contains multiple variations ranging from possession of between 2 and 250 grams of
methamphetamine. She submits on this basis that a starting point of less than three years may have been available having regard to the circumstances of the offending and of the offender. She submits that the aggravating features of the offending are the scales and utensils as well as the presence of cash, albeit explained. However, as I have discussed earlier in this judgment, these features go to the question of whether, in addition to the presumption, there was further evidence to support the inference that the possession of the drug was for the purpose of supply. I do not regard these features as matters of aggravation in themselves.
[56] Ms Murphy cites a number of cases in support of her proposition that a lower starting point of two years should have been adopted in this case.9 Band 2 in Fatu attracts a range of between three and nine years’ imprisonment.
[57] The possession in the present case was 6.9 grams which, I accept, sits at the lowest end of band 2. Strict adherence to the Fatu bands results in a starting point of three years’ imprisonment. That was the starting point adopted by the sentencing Judge.
[58] In setting that starting point his Honour made specific reference to the pre- sentence report and its recommendation of either home detention of community detention. His Honour then went onto to say:10
The difficulty is the very clear case law as laid down by the Court of Appeal as the appropriate starting point. Possession of between 6 and 9 grams puts you well into, what lawyers call, band 2 of the Court of Appeal decision in R v Fatu; and that lays down that the starting point for methamphetamine offending of this sort of gravity requires a starting point of three years’ imprisonment.
[59] His Honour’s reference to the “difficulty” is plainly a reference to not only the pre-sentence report recommendation but also the extent to which the prior good character of Mr Quinlivan could be taken into account.
[60] I note that Ms Murphy has referred me to R v Mihaka where a starting point of one year and nine months was adopted involving possession of 3.9 grams of
9 Te Kira v R [2014] NZCA 75; Knox v Police [2014] NZCA 51; R v Clark [2013] NZHC 3437; R v
Wiki [2013] NZHC 3439; R v Crompton [2013] NZHC 3347; R v Mihaka [2013] NZHC 2905.
10 Police v Quinlivan, above n 1, at [10].
methamphetamine. However, in that case the evidence of commerciality was lower than in the present.
[61] Ms Murphy also refers to Knox v Police submitting that the offending in that case was significantly more serious involving 26.45 grams of methamphetamine. There a starting point of four and a half years was seen as appropriate. However, I note that Collins J made specific reference to other co-offenders some of whom attracted starting points of more than three years’ imprisonment for quantities lower than the present.
[62] In all the circumstances I am satisfied that a starting point of three years’
imprisonment was within the Judge’s sentencing discretion.
[63] The Judge then uplifted the starting point by 12 months to reflect the five receiving charges and the possession of the imitation firearm. There are no tariff decisions and the starting points adopted reflect the variability of the facts involved in each case.
[64] Having reviewed broadly comparable authorities11 starting points of more
than the 12 months’ imprisonment adopted in this case, have been imposed.
[65] Furthermore, there is no error of principle in my view in relation to the discounts given for the plea of guilty and good character. The plea was not entered at the earliest opportunity. As for good character the sentencing Judge noted Mr Quinlivan had left “the rails … in a spectacular manner”. Prior to his offending Mr Quinlivan was a successful student. His mother’s moving letter to the sentencing Judge demonstrates the level of support he has. But as the Courts have repeatedly stated, factors relating to the offender in drug dealing sentencing are less important
than deterrence and denunciation.12 In Jarden, the Supreme Court commented:13
… As the Courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal
11 Sinclair v Police [2014] NZHC 1332 at [25]; Blissett v Police [2013] NZHC 156 at [48]; Cribb v
Police HC Hamilton, CRI-2010-419-46, 8 July 2010.
12 R v Wang [2014] NZCA 409.
13 Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12] and [14].
circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.
The personal circumstances of an offender may be relevant either because they contributed in some way to the offending, or on purely compassionate grounds. In oral argument, Mr Glover accepted that in the present case there was no evidence of a causal link between Mr Jarden's anxiety and depression and the offending of which he was convicted. His personal circumstances, in the form of the loss of his partner and their unborn child shortly before his trial was to commence, were however so extreme that they could and should have been taken into account in sentencing. The crucial importance of deterrence requires however that the reduction in sentence be a modest one.
[66] Thus although there is an emphasis on deterrence when dealing with drug offending, personal circumstances are still relevant. Harrison J summarises the approach as follows:14
The Crown…proceeds on a premise that personal circumstances are irrelevant when sentencing for drug offending. That is no longer a proper approach. The Sentencing Act provides that all relevant factors are to be taken into account. Included, of course, are your good character and your prospects for rehabilitation.
[67] In R v Palmer where an offender had made commendable efforts at rehabilitation when charged with possession for the purpose of supply of a Class A and a Class C drug, Stevens J allowed a 9 month discount, which amounted to a 20 per cent discount.15 This included remorse and also a discount for restrictive bail conditions. From these authorities I conclude the Judge erred in not reflecting Mr Quinlivan’s positive rehabilitation prospects, and gave inadequate credit for his
previous good character. In my view an extra three month discount is appropriate.
14 R v Kennedy (2010) 25 CRNZ 71.
15 R v Palmer HC Whangarei CRI-2009-027-341, 22 October 2009.
[68] However there is no justified basis for a discount for remorse. The pre- sentence report indicated that Mr Quinlivan tended to minimise his responsibility with respect to the range of charges on which he was being sentenced. As was noted in Hessell v R16 remorse is not necessarily reflected just in a guilty plea. If, on a robust evaluation of all of the circumstances, genuine remorse has been demonstrated a sentencing credit should be given in addition to that for the guilty
plea. In the circumstances there is insufficient evidence of remorse independent of the guilty plea for that factor to be treated as a separate feature of mitigation.
[69] I am satisfied that the Judge erred and that the sentence he imposed was, in all the circumstances, manifestly excessive.
Result
[70] The appeal is allowed.
[71] The sentence of three years’ imprisonment on the charge of possession of methamphetamine of supply is quashed and a sentence of two years and nine months’ is substituted.
[72] The sentences on the remaining charges remain.
[73] All sentences are to be served concurrently.
Moore J
Solicitors:
Ms Murphy, Auckland
Crown Solicitor, Auckland
16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607, (2010) 24 CRNZ 966.
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