Reedy v The the King
[2022] NZHC 3011
•15 November 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-419-000042
[2022] NZHC 3011
BETWEEN AARON REEDY
Appellant
AND
THE KING
Respondent
Hearing: 15 November 2022 Appearances:
G Walsh for Appellant
B Harris for the Respondent
Judgment:
15 November 2022
ORAL JUDGMENT OF WYLIE J
(Appeal against sentence)
Solicitors/counsel:
G Walsh, Hamilton
Hamilton Legal, Hamilton
AARON REEDY v R [2022] NZHC 3011 [15 November 2022]
Introduction
[1] The appellant, Aaron Reedy, appeals against a sentence of two years and 10 months’ imprisonment imposed on him by Judge N D Cocurullo in the District Court at Hamilton1 in relation to one charge of supplying methamphetamine2 and one charge of offering to supply methamphetamine.3 The Judge at the same time discharged Mr Reedy on two further charges (conspiracy to supply methamphetamine and offering to sell cannabis) pursuant to s 147 of the Criminal Procedure Act 2011.
[2] Mr Reedy appeals his sentence on the basis that the discounts allowed by the Judge for his personal circumstances were inadequate. He says that as a result, the sentence imposed was manifestly excessive.
[3]The Crown opposes the appeal.
The offending
[4] On 10 September 2020, at approximately 10.50 pm, Mr Reedy was driving a vehicle in Hamilton. Police approached the vehicle and observed a knife in the right rear footwell where a passenger was sitting. A warrantless search was conducted. Police located digital scales, a walkie talkie, a glass methamphetamine pipe and
$25,850 in cash. They also seized cellphones from Mr Reedy and his son, who was also a passenger in the vehicle.
[5] Police subsequently obtained text message data from Mr Reedy’s cellphone. An analysis of the data showed that Mr Reedy had supplied or offered to supply methamphetamine on at least 34 occasions between 11 August 2020 and 11 September 2020. Twenty-four of the supplies or offers to supply contained a quantifiable amount
– in total 72.4 grams of methamphetamine; the remaining 10 supplies or offers to supply did not specify amounts. The text message data also showed that on 23 August 2020, Mr Reedy sent a message to an unknown person, seeking to purchase 56 grams of methamphetamine for the purposes of supplying it to others.
1 R v Reedy [2022] NZDC 12124.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2). Maximum penalty life imprisonment.
3 Misuse of Drugs Act 1975, s 6(1)(c) and (2). Maximum penalty life imprisonment.
[6] In explanation, Mr Reedy stated he had won the money found in his possession at the casino. He denied any knowledge of the methamphetamine pipe or the knife.
District Court sentencing
[7] The Judge referred to a sentence indication he had given to Mr Reedy in March 2022. That indication had been accepted. The Judge had there placed the offending within band two identified in the guideline decision in Zhang v R,4 and described the offending as low-level street dealing, although noting Mr Reedy had a “significant” role.5 The Judge had indicated a starting point of 46 months’ imprisonment, a 10 per cent uplift for previous convictions, and a 20 per cent discount for the guilty pleas. Other discounts were left to be assessed when relevant reports were available.
[8] As noted, that indication had been accepted and guilty pleas had been entered to the two charges referred to above.
[9] In sentencing, the Judge adopted his sentence indication. He also referred to a s 27 report which had been obtained. He declined to repeat the content of the report in open Court, although noting that he had read it carefully and that he understood each of the factors referred to by counsel. The Judge recorded that the Crown had queried whether there was a causal nexus between the matters identified in the report and the offending, and that the report comprised information self-reported by Mr Reedy or by those who supported his position. The Judge noted counsel’s submission that there were two broad themes referred to in the report: Mr Reedy’s alienation from his whānau and things that had happened to him as a younger person. The Judge referred to an earlier decision of this Court – Govender v R.6 It involved drug related offending. The sentencing Judge – Powell J – declined to allow a discount for addiction on the basis that the appellant had not discharged the onus of establishing the extent and effect of the claimed addiction.
[10] The Judge then referred to Mr Reedy’s remorse and willingness to rehabilitate, noting counsel’s submission that Mr Reedy had turned a corner and wanted to try and
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
5 R v Reedy DC Hamilton CRI-2021-019-2020, 21 March 2022 at [10].
6 Govender v R [2019] NZHC 3212.
chart a better way in life. He also noted the “fairly weighty” documentation about Mr Reedy’s medical condition, which counsel submitted would make prison more difficult for Mr Reedy. The Judge said his impression was that Mr Reedy’s health was then being managed but that it brought complexity to his situation.
[11] The Judge allowed a 10 per cent discount for the matters in the s 27 report, and a five per cent discount for remorse, willingness to rehabilitate and Mr Reedy’s medical condition.
[12] The Judge noted that, taking into account the 20 per cent discount for guilty pleas and the 10 per cent uplift for previous convictions, the net discount was 25 per cent, or 12 months, from the starting point sentence of 46 months’ imprisonment. He therefore sentenced Mr Reedy to two years and 10 months’ imprisonment (concurrent) on the charges of supplying/offering to supply methamphetamine.
The appeal
[13] The appeal is brought pursuant to s 244 of the Criminal Procedure Act. This Court, as the first appeal Court, must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should be imposed.7
[14] The appeal Court does not start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.8 If there was an error, the Court will then form its own view of the appropriate sentence. The focus is on whether the sentence imposed is within range, rather than the process by which the sentence was reached.9
7 Criminal Procedure Act 2011, s 250.
8 R v Shipton [2007] 2 NZLR 218 (CA) at [139] as cited in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
9 Tutakangahau v R, above n 8, at [36].
Submissions
[15] Mr Reedy does not challenge the starting point of 46 months’ imprisonment, the uplift for his previous convictions or the discount for the guilty pleas. The sole ground of appeal is that the discounts for personal circumstances were inadequate.
[16] Mr Walsh, for Mr Reedy, submitted that a 20 per cent discount should have been allowed for the matters outlined in the s 27 report and that, adding in Mr Reedy’s remorse, rehabilitative prospects and medical position, an overall discount of 30 per cent for personal circumstances was warranted.
[17] Mr Harris, for the Crown, submitted that the 10 per cent discount for the matters identified in the s 27 report was adequate, given the limited nexus between the factors identified and Mr Reedy’s offending. He further submitted that the five per cent discount allowed for remorse, willingness to rehabilitate and Mr Reedy’s medical position was appropriate, given these factors were largely self-reported.
Analysis
[18]I first consider the discount for the matters outlined in the s 27 report.
[19]The key factors identified in the report were as follows:
(a)While Mr Reedy did not experience deprivation or poverty growing up in his parents’ home, his upbringing was very strict and his father was violent with him on at least one occasion;
(b)Mr Reedy was physically abused while attending boarding school. [REDACTED];
(c)Mr Reedy went to live with his uncle after leaving boarding school and deprivation and poverty then became his way of living. His uncle was a heavy drinker and emotionally abusive. He only fed Mr Reedy noodles despite receiving money from Mr Reedy’s father to assist financially;
(d)[REDACTED];
(e)Mr Reedy is disconnected from his whānau. His parents did not have his back when he needed them and they gave him no comfort or affection in tough times. He became involved with the Black Power gang and was President of the Gisborne chapter until the age of 32, when he changed his lifestyle after a lengthy prison sentence; and
(f)Mr Reedy began using cannabis at 14 years old and methamphetamine at 19 years old. He started smoking large quantities of methamphetamine, becoming even more “hooked” when he saw the profit that could be made from selling it. In 2019 he relapsed and began dealing again, using his profits to pay for his own daily use, which led to a near-fatal overdose. However, he accepted that his index offending was “about financial gain and surviving the world”.
Similar comments were echoed in the pre-sentence report, with Mr Reedy telling the writer: “I had no money to survive. I had nobody. That drove me to drug dealing.” He reported that he was under the influence of methamphetamine at the time of the offending.
[20] All of the various matters set out in the s 27 report and in the pre-sentence report were self-reported by Mr Reedy.
[21] As noted, the Judge allowed Mr Reedy a discount of 10 per cent for these various factors.
[22] In Zhang v R, the Court of Appeal considered the role of s 27 reports, noting that ingrained systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity can require consideration at sentencing when it is shown to have contributed causatively to a defendant’s offending.10 The Court also observed that addiction will be a mitigating consideration which can justify a discount
10 Zhang v R, above n 4, at [159]. See also Carr v R [2020] NZCA 357.
where it is shown to be causative of the offending.11 The Court however noted that “commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice, which is what diminishes culpability and justifies discounting the sentence”.12 Further, the Court held that:13
… any such discount should be based on persuasive evidence, as opposed to mere self-reporting. … Inasmuch as a stage two discount for mitigating circumstances is engaged, the onus of proof (to the civil standard) lies on the offender to establish the extent and effect of addiction.
[23] I agree with the Judge that there is a causal link – albeit a limited link – between the matters outlined in the s 27 report and Mr Reedy’s offending. There does not need to be extensive evidence of a nexus between offending and socioeconomic and cultural disadvantage for a discount to be granted,14 and the assessment of whether there is a nexus should not be a mechanical exercise requiring a high threshold of proof.15 Rather, what is required is an overall assessment, assisted by the available evidence, including that in a s 27 report, of how personal circumstances might have contributed to culpability and offending.16 I accept that Mr Reedy’s disconnection from his whānau, and the deprivation and abuse he reported can be considered to have impaired his choices in life and to have diminished his culpability.
[24] There is also Mr Reedy’s methamphetamine addiction. There was no independent evidence before the Judge or before me on appeal about the extent and effect of Mr Reedy’s addiction. As a result, I consider the Judge was right not to allow a further discount for addiction. Nevertheless, Mr Reedy’s addiction is broadly relevant. It is a further factor going to disadvantage and which is likely to have led him to become involved in the drug world (at least initially). Any causal nexus was however diminished by Mr Reedy’s statement that his offending was motivated by “financial gain”.
11 Zhang v R, above n 4, at [147].
12 At [147].
13 At [148].
14 Arona v R [2018] NZCA 427 at [59], citing Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; and Waikato-Tuhega v R [2021] NZCA 503 at [51].
15 Waikato-Tuhega v R, above n 14, at [51].
16 At [51].
[25] Standing back and considering all the s 27 factors outlined, I consider that the 10 per cent discount allowed by the Judge was adequate, albeit not generous. Another Judge may have allowed a greater discount – perhaps 15 per cent – but I am not persuaded that the 10 per cent discount allowed was wrong.
[26] I now turn to consider remorse, willingness to rehabilitate and Mr Reedy’s health condition. The Judge allowed a combined five per cent discount for these factors.
[27] Dealing first with remorse, s 9(2)(f) of the Sentencing Act 2002 requires a sentencing Court to take into account as a mitigating factor any remorse evidenced by an offender. It is a personal mitigating factor that can justify a separate discount, over and above the discount allowed for guilty pleas. However, sentencing Judges are not required to take unsubstantiated claims of remorse at face value. In Hessell v R, the Supreme Court noted as follows:17
Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self-pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.
Further, the Court of Appeal has noted that little weight can be placed on even genuine expressions of remorse where there is recidivist offending.18
[28] Mr Reedy expressed remorse in a letter addressed to the Judge and the pre-sentence report writer recorded that he took full responsibility for his actions.
[29] I accept that Mr Reedy’s remorse is genuine, and I commend his desire to turn his life around. I do however consider that his remorse is tempered by the recidivist nature of his offending, and by its commerciality.
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
18 R v Ngamo [2009] NZCA 512 at [9].
[30] Mr Reedy has also expressed a willingness to rehabilitate to the s 27 and pre-sentence report writers. He said that he wishes to engage in drug and alcohol, abuse and gambling counselling, and that he is willing to attend a tikanga programme and to engage with Salvation Army addiction services. He said he would do anything that would help him to become a better version of himself and to be back with his family. There is however no evidence before the Court of any rehabilitative steps taken or progress made by Mr Reedy to date. Indeed, I note that he has previously received rehabilitation which has clearly not been successful.
[31] I next consider Mr Reedy’s health. The extent to which ill health can mitigate an offender’s sentence depends upon the circumstances of the offence and the offender.19 Any reduction should generally be “limited”.20 In Edwardson v R, the Court of Appeal said as follows:21
[135] As to drug offenders in particular, examples of sentencing for older serious drug offenders demonstrate that the discount to be given for advanced age is heavily context-dependent. Generally, unless there are other health- related factors, discounts are either non-existent, … or small. …
[32] Here, Mr Reedy is 44 years old. It appears that he has had health issues in the past and that to an extent they are ongoing. The pre-sentence report writer recorded that Mr Reedy suffered a heart attack in 2019 and that he is on medication to manage this condition. Mr Reedy advised the report writer that he has been diagnosed with cardiomyopathy and that he takes nine different pills a day. He said he cannot work anymore and that he has a short life expectancy. Mr Reedy’s medical notes were made available for the period October 2019 to May 2022. Unfortunately, it is just the medical notes which have been provided. There is no analysis of Mr Reedy’s condition or commentary on how it might impact on a custodial sentence.
[33] In the absence of any analysis or commentary, it is difficult to conclude what (if any) discount is appropriate for this factor. There is nothing before me to support the contention that Mr Reedy’s health condition will make imprisonment more difficult for him. Many suffer from medical conditions which require ongoing
19 M (CA91/12) v R [2013] NZCA 325 at [54].
20 At [54].
21 Edwardson v R [2017] NZCA 618.
treatment. There is nothing to suggest that Mr Reedy’s health problems cannot be managed adequately and appropriately by the Department of Corrections.
[34] Again, I am not persuaded that the five per cent discount allowed by the Judge for remorse, rehabilitative intentions and health conditions was in error.
Result
[35] Considering the discounts allowed by the Judge in the round, I am not persuaded that there was any error. Any adjustment I might be minded to make would be tinkering and that would be inappropriate. The appeal is dismissed.
Wylie J
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