R v Simpson

[2021] NZHC 3548

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-019-3685

[2021] NZHC 3548

THE QUEEN

v

RYANN THOMAS SIMPSON

Hearing:	17 December 2021
Appearances:	K Whyte for Crown S Tait for Defendant
Judgment:	17 December 2021

SENTENCING REMARKS OF LANG J

Solicitors:

Hamilton Legal, Hamilton

R v SIMPSON [2021] NZHC 3548 [17 December 2021]

[1]    Mr Simpson, you appear for sentence today having pleaded guilty to four sets of charges. You pleaded guilty to three sets of charges in the District Court and one set of charges in this Court. This Court directed that all the charges in the District Court be transferred to this Court so you could be sentenced on all charges at the same time.

[2]    The Crown has offered no evidence on the remaining charges in the current version of the Crown Charge Notice. I therefore make an order under s 147 of the Criminal Procedure Act 2011 discharging you on charges 25, 46 and 54.

[3]    Your culpability needs to be determined having regard to the agreed summaries of fact presented to both the District Court and this Court. I propose to refer to the charges in chronological order.

Offending on 9 December 2019

[4]    At about 11.55 pm on 9 December 2019 the police stopped a motor vehicle you were driving in Huntly. They then carried out a warrantless search under the Search and Surveillance Act 2012. The police found a glass methamphetamine pipe in the driver’s door panel. They also found a clear ziplock bag containing 8.45 grams of cannabis plant material in the centre console of the vehicle. in addition, they found a cellphone, two sets of scales, nine small clear ziplock plastic bags and the sum of

$251 in cash. When they searched your person they found a clear ziplock bag containing 13.19 grams of methamphetamine in the right front pocket of your trousers. This resulted in charges of being in possession of cannabis, being in possession of methamphetamine for supply and being in possession of a methamphetamine pipe.

[5]    On 7 February 2020 the police executed a search warrant at your residential address. There they found ten grams of cannabis leaf and a .22 calibre firearm that had been cut down in size so that it was a pistol. This was found unsecured in the garage of the address. You told the police the cannabis was for your personal consumption and you believed the firearm was legal. This resulted in charges of being in possession of cannabis and being in unlawful possession of a firearm.

Offending between 5 April and 14 May 2020

[6]    In April and May 2020 the police undertook a wide-ranging investigation into the manufacture and distribution of methamphetamine in the Waikato region. This resulted in the interception and analysis of numerous electronic communications. These revealed that you had been an active part of a group involved in the manufacture and distribution of methamphetamine. You obtained methamphetamine in wholesale and retail quantities from those higher up in the organisation. You then provided it to your former partner and others for the purpose of onward distribution.

[7]    The communications revealed that you had supplied methamphetamine on  25 occasions. The quantities supplied were specified on 18 of these and totalled 31.55 grams of methamphetamine. You also offered to supply methamphetamine on 47 occasions. On the eight occasions on which quantities were specified you offered to supply a total of 113.25 grams of methamphetamine. In addition, and not surprisingly given what the police found in your possession in December 2019 and February 2020, the police discovered you were selling and offering to sell cannabis in significant quantities. During April and May 2020 you sold approximately 504 grams, or 18 ounces, of cannabis and offered to sell cannabis on 14 other occasions. The quantity was only specified on one of those occasions and this was 28 grams, or one ounce. This operation resulted in charges of being in possession of methamphetamine and cannabis for supply.

Offending on 27 May 2020

[8]    On 27 May 2020 the police found you and several members of the group under investigation in a carpark outside retail premises in Morrinsville. One of your associates had just fled from the police whilst in possession of a large quantity of iodine and other precursor materials, substances and equipment for use in manufacturing methamphetamine. When the police searched your vehicle they found 34 grams of methamphetamine, 80 grams of cannabis together with other indicia of drug supply including cellphones, packaging and a set of electronic scales. They also discovered the sum of $2,480 in cash in your back pocket.

[9]    The offending on 27 May 2020 resulted in your being arrested and remanded in custody. You pleaded guilty in the District Court to the offending that had taken place on 9 December 2019, 7 February 2020 and 27 May 2020. You pleaded guilty in this Court to the charges relating to the supply and offering to supply methamphetamine and cannabis between 5 April and 14 May 2020.

Starting point

[10]   The sentencing process requires me first to reach a starting point that reflects the overall culpability of your offending. This is made more complicated in the present case by the fact that you accepted a sentence indication given in the District Court on the charges you faced in that Court. The Judge who gave the sentence indication considered a starting point of three years imprisonment was appropriate on those charges.

[11]   My function now is to assess the extent to which this starting point needs to be increased to reflect the fact that you were part of the drug distribution network that the police uncovered in April and May 2020. My task is made simpler by the fact that counsel have reached agreement regarding this issue. They accept that a starting point of five and a half years imprisonment is appropriate on the charges that were originally laid in this Court. An uplift of one and a half years is appropriate to reflect the charges that were before the District Court.

[12]   I consider this reflects an appropriate application of the principles referred by the Court of Appeal in the recent case of Zhang v R.1 In that case the Court of Appeal identified bands of offending involving the supply and manufacture of methamphetamine. You plainly fall within Band 2, which relates to the supply and manufacture of less than 250 grams of methamphetamine. Offending within that band justifies a starting point of between two and nine years imprisonment.

[13]   You were not a central figure in the drug network that the police uncovered. The summary of facts refers to the fact that you were on the fourth tier of the hierarchy of that organisation. This reflects the fact that you were not involved in the

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

manufacture and initial distribution of methamphetamine. Rather, you received retail or wholesale quantities from those higher up and then passed them on for distribution to your subordinates.

Aggravating factors

[14]   Having set a starting point it is necessary to ascertain whether the sentence should be increased to reflect aggravating factors personal to you.

[15]   The principal aggravating factor in the present case is the fact that, after you were initially apprehended by the police in December 2019, you were prepared to become involved in continued drug offending between February and May 2020. This is despite the fact that you were arrested again on 7 February 2020 and released on bail again on drugs charges. That is a significant aggravating factor and would ordinarily have warranted an uplift of at least six months.

[16]   In the present case I have acceded to the Crown’s suggestion that I should not apply an uplift to reflect the fact that much of your offending occurred whilst you were on bail on other drugs charges. However, I will not be giving you a credit for the fact that you have no previous convictions. I consider, as does the Crown, that the lack of previous convictions is offset by the fact that you were prepared to offend again in a serious way whilst on bail.

Mitigating factors

[17]   I now turn to consider the extent to which the sentence should be reduced to reflect mitigating factors personal to you.

[18]   The first of these is the fact that you have entered guilty pleas and therefore saved the State the time and trouble of arranging a trial of the charges that you face. In the District Court the Judge applied a discount of 25 per cent to reflect this factor. On your behalf Mr Tait suggests the same level of discount should be given even though charges were not entered at a particularly early stage. The Crown suggests that an overall discount of around 20 per cent is appropriate. I propose to take a middle

course and apply a discount of 20 months, or approximately 23 per cent, to reflect guilty pleas.

[19]   Your counsel also asks me to apply a deduction to reflect the fact that for the last ten months you have been living subject to restrictive bail conditions. These have seen you bailed to Odyssey House where you have been undergoing intensive rehabilitation treatment. The Court has a discretion whether to allow a discount for this factor. If it allows a discount the level of discount will generally be around 25 to 40 per cent of the time spent on EM bail. In your case this would mean a discount of somewhere around three months.

[20]   I do not propose to adopt that approach because I consider that any discount for being on EM bail should be or included in the discount that I give you for rehabilitative efforts you have undertaken.

[21]   You spent from 27 May 2020 until February 2021 in custody. You were then released on EM bail to Odyssey House so you could begin a drug rehabilitation programme. You have now completed that programme and this has produced very positive results. This is a matter that is obviously to your credit and the Court must recognise it. Your counsel suggests a discount of 25 per cent, but I consider that to be slightly high. I propose to allow a discount of 17 months, or around 21 per cent, to reflect this factor.

[22]   The final mitigating factor for which I can give you credit relates to material contained in a psychologist’s report that has been provided to me by your counsel. This describes your upbringing and tells me that you have suffered two traumatic events, both of which happened in quick succession. These resulted in the deaths of persons close to you and affected you deeply. You began drinking alcohol as a means of coping with this and then turned to drugs. This in turn led quickly to an addiction to methamphetamine. It seems reasonably clear that much of the present offending was driven by your need to meet the cost of your drug habit. Initially you were able to do this by applying income you received from your occupation. That proved to be insufficient to meet the cost of your methamphetamine addiction. You then became involved in the selling of drugs.

[23]   The Court of Appeal in Zhang confirmed that where offending is prompted by acknowledged addiction some discount can be given. I propose to apply a discount of five months to reflect this factor.

[24]   This means that from a starting point of seven years, or 84 months imprisonment, I have identified mitigating factors totalling 42 months. This means that the end sentence is one of three years six months imprisonment.

[25]   The Court always finds it difficult, Mr Simpson, to send to prison a person who has been in the community, even on a restricted basis, for a lengthy period of time. That has been worthwhile for you, Mr Simpson, in two ways. First, it has resulted in the reduction from your sentence to which I have referred. Secondly, the positive manner in which you responded to your remand to Odyssey House is going to stand you in good stead when you appear before the parole authorities. By my calculations that will be early next year. I have confidence that the prison and parole authorities will see your endeavours over the last ten months in a very positive light for parole purposes.

Sentence

[26]   For the offending on 9 December 2019, on the charge of being in possession of cannabis you are sentenced to one month imprisonment. On the charge of being in possession of methamphetamine for supply you are sentenced to 12 months imprisonment. On the charge of being in possession of a methamphetamine pipe you are sentenced to three months imprisonment.

[27]   For the offending on 7 February 2020, I sentence you to one month imprisonment on the charge of possession of cannabis and six months imprisonment on the charge of being in unlawful possession of a firearm.

[28]   For the charges that were laid in this Court, I sentence you to three years six months imprisonment on the charges of supplying and offering to supply methamphetamine. I sentence you to 18 months imprisonment on the charges of selling and offering to sell cannabis.

[29]   For the offending on 27 May 2020 I sentence you to two years imprisonment on the charge of being in possession of methamphetamine for supply and 18 months imprisonment on the charge of being in possession of cannabis for the purpose of supply.

[30]   All sentences are to be served concurrently, which means you will serve an effective sentence of three years six months imprisonment.

[31]Stand down.

Lang J