Roberts v R

[2019] NZHC 3319

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000397

[2019] NZHC 3319

BETWEEN

BRENDON JAMES ROBERTS

Appellant

AND

THE QUEEN

Respondent

Hearing:	9 December 2019
Appearances:	B Sellars QC for the Appellant Y H Olsen for the Respondent
Judgment:	13 December 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 13 December 2019 at 4.00 pm

Registrar/Deputy Registrar

Solicitors:          Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau

Counsel:            Belinda Sellars QC, Auckland

ROBERTS v R [2019] NZHC 3319 [13 December 2019]

Introduction

[1]        On 10 October 2018, the appellant was sentenced to a term of four years and seven months' imprisonment having pleaded guilty to the following charges:1

(a)manufacturing methamphetamine;2

(b)offering to supply methamphetamine (representative);3

(c)supplying methamphetamine (representative);4 and

(d)theft of a motor vehicle.5

[2]        The appellant appeals his sentence on the grounds that it is manifestly excessive.

[3]        A notice of appeal was filed out of time on 1 December 2018.6 The respondent does not oppose an extension being granted, as the recent guideline judgment for methamphetamine offending, Zhang v R, applies to this appeal.7 I grant leave accordingly. The appellant has provided to the court new reports to address matters raised in Zhang. I accept this new evidence meets the test of being sufficiently fresh and sufficiently credible to be admitted and considered.8 The appeal hearing was adjourned from time to time to await the Court of Appeal decision in Zhang v R, which was issued on 21 October 2019.

1      R v Roberts [2018] NZDC 21560.

2      Misuse of Drugs Act 1975, ss 6(1)(b) and 2(a), maximum penalty life imprisonment (CRN ending 1861).

3      Section 6(1)(c), maximum penalty life imprisonment (CRN ending 1855).

4      Section 6(1)(c), maximum penalty life imprisonment (CRN ending 3632).

5      Crimes Act 1961, ss 219 and 223, maximum penalty of 7 years’ imprisonment (CRN ending 0826).

6      36 days after the date of sentence, as opposed to 20 days required by Criminal Procedure Act 2011, s 248.

7      Zhang v R [2019] NZCA 507 (CA) at [104].

8      Bain v R [2007] UKPC 33 (2007) 23 CRNZ 71; [2007] BCL 577 at [34].

Facts

[4]        The appellant's drug-related offending came to light after a number of production orders were obtained with respect to phone numbers attributed to him and his co-offender, Mr Magele.

[5]        Between 2 July 2016 and 19 July 2016, the appellant and Mr Magele were involved in the manufacture of methamphetamine at Mr Magele’s cousin’s address in Ōtāhuhu. Both the appellant and Mr Magele set about obtaining the necessary equipment and precursor substances. The offenders would also arrange to meet at the manufacturing premises, late at night and in the early hours of the morning.

[6]        A search warrant was executed at the premises on 20 October 2016. Police located items throughout the premises that are commonly used in the manufacturing of methamphetamine, and which exhibited signs of being used during that process. Mr Magele's cousin told Police that Mr Magele and the appellant used the premises to manufacture methamphetamine. They had compensated him for use of his address.

[7]        Text message analysis revealed both offenders were supplying and offering to supply methamphetamine to numerous associates during the manufacturing process. In the period between 1 July and 19 July 2016, the appellant supplied at least

9.25 grams of methamphetamine on eight separate occasions. He offered to supply at least 1.5 grams on two other occasions. In the same period, Mr Magele supplied at least 2.25 grams on five separate occasions and offered to supply a total of 28.55 grams on five other occasions.

[8]        On 19 July 2016, the appellant refused to take further part in the manufacturing process and was assaulted. He was taken to hospital with serious facial injuries, where he required surgery. On 25 August 2016, the appellant and his partner were assaulted and kidnapped by Mr Magele and others. Mr Magele received a term of imprisonment for this offending. These attacks were described by the Police as an attempt to pressure the appellant to continue manufacturing methamphetamine to pay back a debt.

[9]        The appellant was arrested on 18 April 2017. At the time he had with him numerous hypodermic needles, four cell phones, and a bag containing 15 grams of phosphorous acid, which is used in the manufacture of methamphetamine.

[10]      As to the charge of theft of a motor vehicle, on 2 January 2017, the appellant was staying at his mother’s house and took her vehicle (valued at $11,500) without permission.

[11]      The appellant entered guilty pleas to a proposed resolution (combining the drugs charges into representative charges) on 15 June 2018 and was  sentenced on  10 October 2018.

District Court Decision

[12]      At sentencing, the appellant submitted that he had begun manufacturing methamphetamine to pay a debt to the Crips gang and was assaulted when he tried to stop. Judge McGuire noted that his and Mr Magele’s explanations of the offending were contradictory, but accepted, however, that the appellant and his partner were kidnapped and assaulted by Mr Magele. The Judge considered that both the appellant and Mr Magele, each in their own way appeared to have been “enthusiastically pursuing the trade of manufacture and selling methamphetamine”. The Judge also commented “Over the period of offending you were, the two of you, as thick as thieves and that will suffice for today’s sentencing.”

[13]      The Judge considered the appellant and Mr Magele were equal partners, so he chose the same starting point of four years’ imprisonment as Mr Magele had been given, with an uplift of one year for the totality of the offending. The Judge noted that he could have justified a greater uplift than that given to Mr Magele "because [the appellant] offered to sell more drugs" than Mr Magele. This was, however, factually incorrect.9 He also imposed a three-month uplift for previous relevant convictions for manufacturing methamphetamine and possession of methamphetamine for supply in 2003 (for which the appellant was sentenced to three-and-a-half years' imprisonment).

9      The agreed summary of facts states that the appellant offered to supply at least 1.5 grams on two occasions, while Mr Magele offered to supply a total of 28.55 grams on five occasions.

[14]      As to the role the appellant’s ADHD played in his drug offending, the Judge said “At the age of 41 you are old enough to figure out that if you genuinely do have ADHD there are ways of coping with that disorder that do not have to involve you in serious offending.” However, he gave the appellant a three-month discount for this, but did not give any further reductions for reduced culpability or his commitment to rehabilitation. As the appellant absconded while on EM bail, the Judge declined to give a discount for time spent on bail. A 10 per cent discount was given for his late guilty plea.

[15]      The end sentence was four years and seven months for the methamphetamine offending, with a concurrent sentence of six months for the theft of the car. This sentence was, however, the result of an error in calculation – 10 per cent of five years is six months, so the end sentence should have been four years and six months.

Approach to appeal

[16]      The Criminal Procedure Act 2011 sets out that a first appeal court must allow an appeal if satisfied that:10

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[17]      This court must point to an error made by the District Court, either in the Judge’s reasoning or shown by additional material considered on appeal.11 The error must be adequately significant for the appeal to be allowed. Although the Criminal Procedure Act 2011 does not require the sentence to be ‘manifestly excessive’, this is a helpful concept when considering the seriousness of the error.12

[18]      Sections 7 and 8 of the Sentencing Act 2002 set out the purposes and principles of sentencing that must be considered by the court. A starting point is based on the

offending and adjusted to reflect relevant aggravating or mitigating features personal to the offender.13

Submissions

Appellant submissions

[19]      Firstly, the appellant submits that a starting point of four years' imprisonment was excessive, as the offending was limited in scale and duration and the appellant's role was limited. Counsel suggests the starting point should be around two-and-a-half to three years’ imprisonment. Counsel submits that the Judge misinterpreted the appellant’s relationship with Mr Magele when he characterised them as equal partners. Counsel refers to Phillips v R,14 one of the appeals considered in Zhang, which had a five-year starting point for a much higher quantity (six kilograms) because the offender had a very limited role in the overall drug operation.

[20]      The appellant also submits inadequate weight was given to his longstanding methamphetamine addiction at first instance and seeks a discount of 30 per cent for this factor. Counsel has provided to the court evidence of the appellant completing rehabilitative programmes during his sentence.

[21]      The appellant also submits that inadequate weight was given to his ADHD. Zhang notes that “a significant proportion of people using methamphetamine apparently recreationally are in fact self-medicating for ADHD”.15

[22]      The appellant submits the one-year uplift for totality was excessive and should have been reflected in a lesser uplift in the vicinity of six months.

[23]      Lastly, the appellant submits the 10 per cent discount for guilty plea was inadequate and should have been in the vicinity of 15 - 20 per cent.

Respondent submissions

[24]      The respondent submits that, notwithstanding the altered approach to sentencing under Zhang, a starting point of four years' imprisonment remains within the available range, having regard to both the gravity of the offending and the appellant's role. Given the amounts involved, counsel submits that the quantity generated by the manufacture cannot be viewed as being at the lowest end of band two. Counsel submits that the offending can be characterised as a relatively small- scale commercial manufacturing operation that successfully yielded methamphetamine, which was able to be subsequently on-sold.

[25]      The respondent accepts that the appellant and his partner were kidnapped by Mr Magele to apparently require him to continue manufacturing, and that the material gathered by Police suggests the appellant was also assaulted at the end of the offending period so Mr Magele took control of the operation from this time. The respondent also accepts that the appellant used methamphetamine himself. However, counsel submits that whatever the appellant’s motivations were for participating in the offending, they need to be balanced against his critical role. Counsel submits that where Mr Magele could be seen as playing a "leading role" in the small-scale commercial manufacturing operation, the appellant's role can be appropriately viewed as "significant". Zhang held:16

Knowing participation in importation or manufacture should simply be treated as indicative of a more significant role and degree of culpability, attracting a higher sentence starting point across the range indicated.

[26]      The respondent submits that Phillips v R is not a comparable case as the offender was motivated by loyalty to her co-offender (with whom she was in a relationship) and she was essentially just abetting his operation.17 Here, counsel submits the appellant was an experienced cook and the operation could not have carried on without him. Accordingly, this is not the kind of case the Court in Zhang anticipated would fall into the lowest range of starting points provided for by Band two.

[27]      The respondent acknowledges that the appellant does appear to suffer from a longstanding methamphetamine addiction. However, the link between addiction and his offending is primarily self-reported. Regarding the discount for the appellant’s ADHD, counsel submits the mention in Zhang of the relationship between ADHD and methamphetamine use is not authority for the proposition that an ADHD diagnosis will always diminish culpability. Without specific evidence as to the causative effect of the appellant's ADHD on the offending, counsel submits that the discount given at first instance was appropriate.

[28]      The respondent submits the 12-month uplift for totality was within range, as it is counterbalanced somewhat by the lower uplift for the appellant's criminal history.

[29]      Lastly, the respondent submits the discount of 10 per cent for guilty plea was appropriate in the circumstances. The appellant absconded on EM bail, so the initial trial date was vacated.

Discussion

[30]      The appellant was sentenced according to Fatu band two for manufacture (5 – 250 grams), which set the starting point at 4 - 11 years’ imprisonment (compared to

3.5 – 10 years for importation and 3 – 9 years for supply).18 Under Zhang, band two

(5 – 250 grams) is now 2 - 9 years.19     Crucially, the Fatu sentencing distinction between manufacture, importation and supply, was removed:20

The safety concerns relating to manufacture, seen in Fatu as justifying a higher starting point, are less distinct almost 15 years later when the major focus of crime prevention in this area is on importation by organised crime groups. Knowing participation in importation or manufacture should simply be treated as indicative of a more significant role and degree of culpability, attracting a higher sentence starting point across the range indicated.

[31]      In light of this change in the court’s response to manufacturing, and the lowering of band two from 4 – 11 years (for manufacture) to 2 – 9 years, the Judge’s starting point was excessive.

18     R v Fatu (2005) 22 CRNZ 410 at [43].

19     Zhang v R [2019] NZCA 507 (CA) at [125].

[32]      To determine an appropriate starting point, Zhang comments that quantity can be considered a basic proxy for measuring the harm done by the drug and the commercial gain expected by the offender.21  The Court  has  evidence  that  up  to  42 grams of methamphetamine was manufactured in this case over a period of some three weeks. The role played by the offender is also relevant to the starting point. In Zhang, it was suggested that Judges may be helped by reference to the description of roles used by the United Kingdom Sentencing Council.22 In terms of those roles, the appellant played a significant role in the manufacture.

[33]      The appellant was, however, to some extent pressured by Mr Magele to engage in manufacture to repay a debt. The kidnapping and assaults are also informative of the power dynamic between Mr Magele and the appellant. When the appellant wanted out, he was assaulted by Mr Magele. Mr Magele took his phone and continued the drug dealing operations without him. The appellant can, therefore, be seen as having a somewhat lesser role that Mr Magele. Nevertheless, the appellant must carry responsibility for his operational functions - he obtained equipment and precursor substances, he cooked, and he distributed product. His role cannot be described as minimal. It was not a small-scale operation. So the starting point must be set above the bottom of band two. I consider a three-year starting point is appropriate.

[34]      The uplift of 12 months for the totality of the offending, being the representative charges of supplying and offering to supply methamphetamine and the theft of a motor vehicle (from his mother), was excessive. Having manufactured the methamphetamine, the appellant (together with Mr Magele) supplied or offered to supply it to others. Of the possible 42 grams, the appellant supplied or offered to supply only 10.75 grams. The charges of supplying and offering to supply related to the same methamphetamine he had manufactured. Methamphetamine was not sourced from elsewhere for supply to others. In those circumstances, an uplift of only six months was warranted.

[35]The three months uplift for the appellant’s previous offending is appropriate.

21 At [10].

[36]      As to any discount for addiction driven offending, the Court in Zhang held that a discount for causative addiction must be based on persuasive evidence, as opposed to mere self-reporting.23 The onus of proof (to the civil standard) lies on the offender to establish the extent and effect of addiction. The appellant is to be commended for his efforts to tackle his addiction as evidenced by the reports provided by his counsel. Although no expert evidence (such as a psychological report or assessment by a drug counsellor) has been provided to the Court to assess how addiction affects the appellant’s culpability, I consider the appellant has met the Zhang onus of proof regarding his addiction. The evidence discloses that the appellant took methamphetamine from each batch he manufactured for his own use. He was also pressured to manufacture the methamphetamine in the first place because of drug debts. The Judge gave a three months discount for the appellant’s ADHD. I consider that a 15 per cent discount, both for the appellant’s causative addition and his ADHD, is appropriate.

[37]      Finally, 10 per cent for a guilty plea was adequate when the trial had been postponed because the appellant absconded.

Recommendation

[38]      The appeal against sentence is allowed. The sentence of four years and seven months’ imprisonment is quashed for the methamphetamine offending and a sentence of two years and 10-and-a- half months’ imprisonment is substituted.

Woolford J