R v Weiss
[2017] NZHC 1517
•3 July 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2017-442-8 [2017] NZHC 1517
BETWEEN THE QUEEN
Appellant
AND
JAMIE LEE WEISS Respondent
Hearing: 29 June 2017 Appearances:
K S Grau for the appellant
C P Stevenson for the respondentJudgment:
3 July 2017
JUDGMENT OF CULL J
[1] This is a Crown appeal against a sentencing imposed for methamphetamine and cannabis charges, challenging a 35 per cent discount for rehabilitation as excessive, which the Crown says, renders the sentence manifestly inadequate.
[2] Ms Weiss pleaded guilty to 22 charges of possession of, use of, and dealing in
95 grams of methamphetamine and at least two ounces of cannabis. She was given a sentence indication of five years and three months’ imprisonment, and then, following a residential rehabilitative programme, was sentenced to two years and nine months’.1 This sentence resulted from the 35 per cent discount for rehabilitation.
[3] The Crown appeals on the basis that the discount for rehabilitation was incorrectly calculated, plainly excessive, contrary to authority and has led to a
sentence that is manifestly inadequate.
1 R v Weiss [2017] NZDC 7672.
THE QUEEN v WEISS [2017] NZHC 1517 [3 July 2017]
[4] The issue for determination is whether the Judge has imposed an excessive discount for rehabilitation, such that Ms Weiss’ sentence is manifestly inadequate.
Background facts
[5] On 6 January 2016, Police executed a search warrant at a motel in Nelson where Ms Weiss was staying. Her seven year-old daughter was there, as was a man who was purchasing cannabis from her. Police found 15 grams of cannabis head,
10.1 grams of methamphetamine, and several drug related items. Her phone records between October 2015 and January 2016 indicated a number of actual supplies and offers to supply of both methamphetamine (at least nine grams, and at least 3.35 grams, respectively) and cannabis (12 tinnies, and five tinnies, respectively). She was charged on 7 January 2016, and granted bail on conditions including a curfew, not to use a cellphone, not to associate with her co-offender Mr Knox, and not to consume illicit drugs.
[6] On 12 April 2016, Police stopped a vehicle driven by Mr Knox in which Ms Weiss was a passenger. A search of her handbag revealed 35 grams of cannabis, four point bags and a small vial containing methamphetamine, and a number of drug-related items. A further 15 grams of methamphetamine was found in the car.
[7] On 15 April 2016, when Ms Weiss was in custody at the Nelson Police Station and due to be transported to Christchurch Women’s Prison, Police searched her and found a bag containing 40.7 grams of methamphetamine in her underwear. Mr Knox was also searched in custody and found with 8.6 grams of methamphetamine.
[8] Text messages revealed that between March and April 2016 Ms Weiss supplied and offered to supply both methamphetamine (3.35 grams and 5.4 grams, respectively) and cannabis (half an ounce sold; half an ounce, $50 worth and at least four tinnies offered).
[9] The total amount of methamphetamine involved was 95.4 grams.
Sentence indication and sentencing
[10] Judge Ruth gave a sentence indication on 18 August 2016.2 Ms Weiss sought two indications: one based on the full 95.4 grams of methamphetamine and one that deducted 23 grams, for which she denied involvement.
[11] There was no dispute that the offending fell within Band two of R v Fatu.3
For the full amount (to which Ms Weiss ultimately pleaded guilty) he adopted a starting point of six years’ imprisonment, with an uplift of 12 months for the cannabis offending and for the fact of offending while on bail. He then said a 25 per cent discount, or 21 months, would result in a sentence of five years and three months’.
[12] On 23 September 2016, Ms Weiss accepted the sentence indication and pleaded guilty to all 22 charges. She then successfully applied for EM bail to attend a rehabilitation centre, commencing on 12 October. She received treatment for around 22 weeks, and sentencing was adjourned twice to facilitate this. In granting the second adjournment, the Judge indicated to Ms Weiss that if her treatment went well she may be entitled to a further discount. He said, “even if I stretch it out to 60 per cent, which is marginal … [the end sentence would still] be two years 11 months.
It’s not going to be in home detention territory.”4
[13] The Crown then filed supplementary written submissions setting out authorities relating to the level of discount for rehabilitation available for a commercial methamphetamine dealer. The Crown submitted that an appropriate discount was in the range of 15 to 20 per cent, and that a 60 per cent discount would result in a manifestly inadequate sentence.
[14] On 11 April 2017, Judge Ruth sentenced Ms Weiss to two years and nine
months’ imprisonment.5 He summarised the reports about Ms Weiss’ treatment as
demonstrating that she had excelled. He considered she would be a valuable person
2 R v Weiss DC Nelson CRI-2016-042-695, 18 August 2016 (“Sentencing indication”).
3 R v Fatu [2006] 2 NZLR 72 (CA).
4 R v Weiss DC Nelson CRI-2016-042-040, 15 February 2017 (transcript of legal discussion before Judge D C Ruth).
5 Weiss, above n 1.
in the prison environment, to impart what she had learned and achieved in the course of her rehabilitation, for which she needed appropriate acknowledgement. The Judge noted that the real question for him was the extent to which he could factor that into the sentence.
[15] He referred to the Crown’s submission that the indicated discount would be beyond an acceptable range. However, he said, that he effectively had a “bargain” with Ms Weiss that she would rehabilitate and not come before the Courts again – and the offered discount incentivised that, “notwithstanding the views of higher Courts in these cases”.6 He accepted that Ms Weiss was a first offender, and that other potential aggravating factors, for example gang involvement, were not at play.
[16] He then said that he intended to give a 35 per cent discount for rehabilitative efforts, from the original seven year sentence. He said that from the resulting figure he took a further 25 per cent “as previously indicated”.7 That came to two years and nine months, he said.
Crown submissions
Erroneous sentence calculation
[17] Ms Grau for the Crown submits that the Judge’s maths was wrong. Applying orthodox methodology, a seven year (84 month) starting point, minus 35 per cent (30 months) is 54 months, then minus 25 per cent for the guilty plea is 41 months, or three years five months.
[18] For the Judge to have arrived at an end sentence of two years and nine months (33 months) as he did, the discount for rehabilitation would have had to have been 47.5 per cent or 40 months.
[19] However, it appears that the Judge has actually applied a 60 per cent discount from the starting point of 84 months, namely 35 per cent for rehabilitation and 25 per cent for guilty plea. The Crown submits this is inconsistent with the orthodox
approach, which is to subtract the guilty plea discount after personal mitigating factors have been discounted, rather than from the starting point.8
[20] Secondly, Ms Grau submits that, however the end sentence was reached, the discount for rehabilitative efforts was excessive, particularly in light of Court of Appeal authority.9
[21] Finally, the Crown submits that as a matter of policy, the outcome in this case has the potential to create different sentencing outcomes depending on whether or not the offender can afford treatment at private clinics.
[22] Ms Grau accordingly submits that, at most, a 20 per cent discount for rehabilitation is available. Accordingly, 84 months, minus 20 per cent for rehabilitation, and then minus 25 per cent for guilty pleas, would result in a final sentence of four years and two months.
Ms Weiss’ submissions
[23] Mr Stevenson for Ms Weiss submits that the focus of this appeal should not be on the mathematical calculation of a discount but whether, viewed as a totality, the sentence was manifestly inadequate. He referred to a number of authorities, where the Courts have held that offenders who have demonstrated significant rehabilitation of an addiction, which has driven the offending, may receive heavily
reduced sentences.10
[24] In this case, Mr Stevenson submits the pre-sentence reports showed very positive engagement in rehabilitation, to the extent that in the third report, the probation officer had gone from recommending imprisonment to home detention and community work to enable further intervention opportunities. By the time of
sentencing, Ms Weiss (with funding from her grandmother) had completed the
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].
9 For example, R v Sarah [2013] NZCA 446 at [42]; He v R [2017] NZCA 77 at [19].
10 Heke v R HC Whangarei CRI-2006-488-60, 3 April 2007; R v Bala HC Auckland CRI-2003-
004-38906, 29 July 2004; R v Hudson HC Auckland CRI-2005-092-5881, 29 September 2006; R v Hoddinott (1992) 9 CRNZ 262 (CA); R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254; and R v Misz CA 115/88, 25 August 1988.
Turning Point drug treatment programme, and the Salvation Army Bridge
programme: a total of six months’ treatment at a cost of $18,000.
[25] Mr Stevenson further notes that Ms Weiss was not the exclusive owner of all the methamphetamine. She was charged as a party, and 23 grams of it appears to have been in the possession of her partner. There was no dispute that she was a serious addict, consuming between one and three grams per day, nor that her offending was driven by her addiction. The starting point of seven years’ imprisonment could have been lower. The guilty plea discount was orthodox, as was the significant reduction founded on the long-standing addict jurisprudence. The end sentence was severe in itself for a young mother who was effectively a first time offender, an addict and a street-level dealer.
[26] Mr Stevenson submits that there is a long line of authority holding that offenders who have demonstrated significant rehabilitation of an addiction which has driven the offending may receive heavily reduced sentences. This is not an act of mercy; rather there is significant individual and community utility in encouraging and facilitating an addict to complete rehabilitation. In particular, Mr Stevenson points to:
(a) Heke v R: “There is well established jurisprudence in conventional drug cases where the courts will reward a genuine attempt by a man to shake free from his addiction. … Since [1992] the courts have continued to recognise … the public interest in breaking an
addiction.”11
(b)R v Bala: the Court imposed supervision and community work instead of the lengthy period of imprisonment that the offending (conspiracy to manufacture methamphetamine and 21 dishonesty charges) would normally attract; an “exceptional step” due to “the exceptional efforts which you have taken…”.12
(c) R v Hudson: “… in the case of an addict who exhibits real evidence of a changed life … the Court may reverse its normal approach and give both the offender and of particular importance the community hope that by adopting such approach both will benefit”.13
(d)R v Hoddinott: this was a Solicitor General’s appeal against two years’ supervision imposed in respect of conspiracy to supply and supply of heroin and cannabis.14 The Court of Appeal disagreed with the Solicitor General that too much weight was placed on rehabilitation:15
The combination of the very real assistance given to the police in this case, coupled with what must be regarded as exceptionally successful efforts to rehabilitate themselves, constituted “particular circumstances of the offenders” within the meaning of s 6(4) and left the way open to the Judge to deal with them by way of supervision.
(e) R v Rawiri: also a Solicitor General’s appeal, in respect of community-based sentences for possessing precursor substances and material and equipment with the intention of manufacturing methamphetamine.16 The Solicitor General argued too much weight was placed on rehabilitation, which the Court of Appeal rejected, noting “judges will generally strive to avoid a custodial sentence where there is a genuine prospect of rehabilitation, unless other sentencing principles or purposes operate to rule out that option.”17
(f) R v Misz: the Court of Appeal substituted supervision by way of continued residential drug treatment for three years imprisonment for supplying heroin, noting that Mr Misz could be cured of his addiction and “that result would be in the best interest of the community and of
Misz himself.”18
13 Hudson, above n 10, at [17].
14 Hoddinott, above n 10.
15 At 265.
16 Rawiri, above n 10.
17 At [22].
[27] Finally, Mr Stevenson submits that the sentence is not inadequate, even if the starting point was lower, as was the case in R v Goldsbury (five and a half years instead of seven in this case) with a corrected discount.19 Although the 35 per cent discount applied is out of range of the higher authorities, the sentence itself was within range, if one adjusts the starting point to five and a half years. This was also open to the sentencing Judge.
Relevant authorities
[28] Of the authorities cited from both the Crown and the defendant, the following cases represent more recent examples where substantial discounts have been allowed because of the particular circumstances.
(a) In R v Hill, a 35 per cent discount for rehabilitation was given, for possession of 6.3 grams of methamphetamine for supply.20 Given the relatively low level of methamphetamine, the focus of the case was on whether home detention was available. In discounting from a starting point of three and a half years, the sentencing Judge was concerned that, as it was not possible to discount to the point where home detention would be available, the sentence of imprisonment should be as short as possible; reaching an end sentence of two years and nine
months. On appeal, the Court found that home detention was available under the transitional provisions, and referred to the 35 per cent discount for rehabilitation efforts and prospects as being a relevant factor in determining a sentence of home detention.
(b) In Hastings v R, the Court of Appeal allowed a “generous” discount of
25 per cent in the context of a 24 year old woman who had a 12 year history of drug dependency and other addiction issues.21 She was a secondary offender providing assistance to her partner, who exercised
a controlling influence over her.
19 R v Goldsbury, HC, Tauranga, CRI-2006-470-7328, 13 July 2006.
20 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
(c) In Edwards v R, the Court of Appeal described a discount of 26 per
cent for personal circumstances as a “substantial allowance”.22
[29] In other cases, discounts for rehabilitation have not been so significant.
(a) In R v Honan, the defendant had received a 60 per cent discount for guilty pleas and personal circumstances.23 He had spent 18 months on bail at a residential treatment programme, paid reparations and forfeited a vehicle. The Court of Appeal considered that the discounts were excessive, and the personal factors (other than the guilty pleas) warranted a discount of no more than 20 per cent. The Court distinguished Hill on the basis that it was “a very different case”.24
(b)In Williams v R, the Court of Appeal declined to increase a three month discount, roughly six per cent, (from a starting point of three years and nine months) for rehabilitation.25
(c) In R v Albert the offender attending a residential treatment programme for over 12 months and continued to attend AA meetings.26 The Judge gave a discount of 15 per cent.
(d)In Sun v Police the offender spent three months in residential treatment.27 A two per cent discount was increased to 15 per cent on appeal.
The calculation
[30] From a review of the sentencing notes, it is apparent that the Judge indicated to Ms Weiss that he would discount her sentence, by 60 per cent, by combining the
35 per cent discount for rehabilitation and a 25 per cent guilty plea discount. He
22 Edwards v R [2017] NZCA 132, at [17].
23 R v Honan [2015] NZCA 94.
24 At [29].
25 Williams v R [2016] NZCA 36.
26 R v Albert [2016] NZHC 241.
27 Sun v New Zealand Police [2015] NZHC 414.
then took the total discount of 60 per cent from the starting point of seven years (84 months).
[31] The methodology adopted by the Judge was incorrect, as the guilty plea discount should be deducted after discounting for personal factors. If the accepted methodology had been followed, an end sentence of two years and nine months would require a 47.5 per cent discount for rehabilitation. If a 35 per cent discount, following the accepted methodology of applying the discount to the starting point of
84 months, it would have resulted in a sentence of 41 months or three years and five months.
[32] Ultimately, the focus on appeal must be whether the final sentence, regardless of how it was imposed, was manifestly inadequate. To do that however, it is necessary to analyse:
(a) whether the starting point was appropriate; and
(b) what percentage of discount was appropriate for rehabilitation.
Starting point
[33] Although Mr Stevenson submits that the starting point of seven years was too high, when one compares this case with R v Goldsbury,28 the Judge specifically took into account the Goldsbury decision, as being a case that has relevance to this one.29
The Judge specifically recorded in his sentencing indication that it was a case from the Tauranga High Court in which 71 grams of methamphetamine, possession of a glass pipe, some burners, some cash (similar to the amount here), scales, a dagger and the one charge of possession of methamphetamine for supply, a starting point of
five and a half years was adopted. He included the comment that:30
In the normal course of events, a starting point of six years would have been appropriate.
28 R v Goldsbury, above n 19.
29 Sentencing indication, above n 2, at [31].
30 At [31].
[34] The Judge then contrasted the higher amount of methamphetamine in this case, namely 95.4 grams and looked at a starting point between seven and a half years and six and a half years’ imprisonment. It was accepted both at the time the Judge gave the sentencing indication and in this appeal, that Ms Weiss falls within Band two of the R v Fatu sentencing bands.31 He contrasted the circumstances of Ms Weiss with Mr Goldsbury and adopted a starting point of six years with an uplift of 12 years for the cannabis offending and her offending on bail.
[35] I consider that the Judge took an appropriate starting point of six years, given the sentencing range in R v Fatu and the differences between Goldsbury and Ms Weiss in the amount of methamphetamine involved. I also consider that the 12 months uplift for the offending on bail and cannabis offending was also appropriate. I reject the defence submission therefore, that the starting point for Ms Weiss’ sentencing was too high.
Rehabilitation discount
[36] The next issue is whether the rehabilitation discount was excessive. There is no dispute that some degree of discount is available; the only question is how much. The Crown submits that the correct discount for rehabilitation is 20 per cent (17 months), which would result in an end sentence of four years and two months.32
There are two questions to address:
(a) whether the discount actually given was excessive, resulting in a manifestly inadequate sentence; and
(b)whether a 35 per cent discount correctly applied with a resulting sentence of three years and five months would be manifestly inadequate.
[37] The 47.5 per cent discount is difficult to justify on the relevant authorities. Neither the Judge nor Mr Stevenson pointed to any cases – at any level – involving such a substantial discount. In many of the cases pointed to by Mr Stevenson,
rehabilitation was a significant factor in the decision to impose a community-based sentence instead of imprisonment. The stated reasons for community sentences in those cases include enabling the offender to continue rehabilitation and thus avoiding the likely negative influence of prison. Those factors are not present in commercial methamphetamine dealing as with inevitable terms of imprisonment.
[38] The case with the most substantial discount is Hill.33 In that case, Mr Hill was convicted by a jury of possession of methamphetamine (6.3 grams) for the purpose of supply. The sentencing Judge thought it inappropriate to reduce the sentence from a starting point of three and a half years to the 12 month maximum that could be imposed for home detention in the absence of Court of Appeal authority. He therefore arrived at a final sentence of two years and three months. However, the Court of Appeal found that, pursuant to the transitional provisions of the new legislation (which did not include the two year threshold), the Judge did have jurisdiction to impose home detention. The Court of Appeal focussed on whether home detention should be imposed, and found that it should. It noted that the discount given was 35 per cent and did not disturb this or describe it as inappropriate.
[39] Honan involved charges of possession of methamphetamine for supply (23.3 grams) and attempting to manufacture methamphetamine.34 The defendant was sentenced to 12 months’ home detention, and the Solicitor General appealed. Mr Honan had completed an 18 month rehabilitation programme, was in employment and was doing voluntary work. The sentencing Judge had not set out his reasoning but the Court of Appeal deduced that the discount for personal factors (other than guilty pleas) was approximately 46 per cent. The Court considered that a discount of no greater than 20 per cent was warranted, and distinguished Hill on the
basis that Mr Hill had no previous convictions, the amount was much lower, and he was young. The Court also considered that there was unjustified disparity between Mr Honan’s sentence and those of his co-offenders. However, because Mr Honan had served six months of his home detention, the Court of Appeal did not quash the sentence, despite considering it manifestly inadequate.
[40] The Crown submits that discounts of 25 per cent for rehabilitation have been considered to be generous or substantial. It is noteworthy that Judge Ruth here, in discounting for rehabilitation, said:35
My part of the bargain, rightly or wrongly, has been to offer you a discount that hopefully incentivised your rehabilitation and if that has happened then that gives me considerable comfort notwithstanding the views of higher Courts in these cases.
[41] It is commendable that the Judge endeavoured to encourage and reward
Ms Weiss for the work and treatment she sought for rehabilitation, but the resultant
47.5 per cent discount given by the Judge in this case was too high and inconsistent with other cases. The end sentence was manifestly inadequate as a result.
[42] I have given consideration to the Crown’s submission that to approve or condone a 35 per cent discount rate for defendants who can afford private treatment encourages a two tier system of justice and sentencing, which is inappropriate and wrong.
[43] I consider that the more relevant consideration is the consistent application of sentencing tariffs, discounts and application of principle to sentencing. It is important that in setting tariffs for sentencing and appropriate discount percentages, the higher Courts encourage a more consistent approach to sentencing, which is known and understood by all.
[44] In my view, after balancing the need to apply a consistent sentencing approach with a legitimate discount to encourage and foster rehabilitation and treatment, an appropriate discount at the higher end is 25 per cent. Adopting 25 per cent from the cases of Honan and Hill, a 25 per cent discount for rehabilitation in
this case has the following result:36
Discount Total Starting point 84 months 25 per cent discount for rehabilitation 21 months 63 months 25 per cent discount guilty plea 16 months 47 months End sentence 47 months = three years 11 months
[45] On the basis that there is authority to give a discount as high as 25 per cent, I consider that the sentence of three years 11 months and no less is appropriate. Counsel have referred to me Judge Ruth’s Sentencing Indication Notes for Mr Knox, her co-offender.37 He was sentenced to four years 10 months for repetitive commercial dealing in excess of 70 grams of methamphetamine over six months. He had previous prison sentences for methamphetamine production and use. I consider the sentence for Ms Weiss of three years 11 months reflects an appropriate parity of sentence with her co-offender, for the 95.4 grams of methamphetamine involved in
her offending; that she had no previous convictions and the sentence was discounted by 25 per cent for rehabilitation.
Result
(1) The Crown appeal is allowed.
(2)The sentence of two years nine months is quashed and Ms Weiss is sentenced to three years and 11 months.
Cull J
37 R v Knox DC Nelson CRI-2016-042-695, 4 October 2016.
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