Ross v The King
[2024] NZHC 160
•13 February 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-412-99 CRI-2023-412-100
CRI-2023-412-101 [2024] NZHC 160
BETWEEN PHILIP WILLIAM ROSS
Appellant
AND
THE KING
Respondent
Hearing: 7 February 2024 Appearances:
S A Saunderson-Warner for Appellant R D Smith for Crown
Judgment:
13 February 2024
JUDGMENT OF MANDER J
This judgment was delivered by me on 13 February 2023 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
ROSS v R [2024] NZHC 160 [13 February 2024]
[1] Philip Ross was sentenced by Judge Turner in the Dunedin District Court to two years and seven months’ imprisonment1 after pleading guilty to charges of possession of methamphetamine for supply;2 possession of a firearm while committing an offence;3 a similar charge relating to the possession of ammunition;4 and failing to comply with search powers.5 Mr Ross had also pleaded guilty to charges of breaching sentences of community work6 and supervision.7 He appealed that sentence, alleging it was manifestly excessive because the overall starting point adopted by the sentencing Judge was too high.
Background
[2] On 6 July 2023, the police executed a search warrant at Mr Ross’ Dunedin home. A shotgun was located secreted in a couch in the lounge of the address with four cartridges in the magazine and one loaded in the chamber. The safety catch was off. Two rifle stocks, a rifle bolt, a shotgun barrel and a bag containing seven shotgun shells and eight rifle cartridges were also found in the house.
[3] A backpack found beside Mr Ross’ bed contained scales and 18 small zip lock bags containing between 0.2g and 0.3g of methamphetamine that together were valued at $3,600. Mr Ross refused to provide his passcode to his cell phone when requested by police.
[4] The Corrections charges related to breaches of community work and supervision. Mr Ross had been sentenced to 200 months’ community work in relation to driving charges of which 77 hours remained outstanding. He was also sentenced to 12 months’ supervision, again in relation to driving charges but had failed on numerous occasions to comply with that sentence.
1 R v Ross [2023] NZDC 11257.
2 Misuse of Drugs Act 1975, s 6 — maximum penalty life imprisonment.
3 Arms Act 1983, s 54— maximum penalty five years’ imprisonment.
4 Section 54—maximum penalty five years’ imprisonment.
5 Search and Surveillance Act 2012, s 178— maximum penalty three months’ imprisonment.
6 Sentencing Act 2002, s 71—maximum penalty three months’ imprisonment.
7 Section 70 — maximum penalty three months’ imprisonment.
Sentencing decision
[5] Judge Turner sentenced Mr Ross on the basis he had been found in possession of between 3.6 and 5.4 g of methamphetamine, which placed his offending within Band 1 and at the very cusp of Band 2 of the categories of methamphetamine offending described in the guideline judgment of Zhang v R.8 It was not disputed the offending involved an element of commerciality and that Mr Ross could best be described as a “low-level street dealer”. He was assessed as operating between the “lesser” and “significant” roles described by the Supreme Court in Berkland v R,9 and that his offending had not been motivated solely or primarily by his own addiction. It was notable that Mr Ross’ use of the drug had followed his decision to sell it which distinguished him from the usual situation, where addicts sell methamphetamine to support their own habit.
[6] The Judge recorded Mr Ross’ explanation for his ownership of the firearm, which he said was motivated by a desire to protect himself and his family from a person he believed would be coming to his home that day. It was claimed that was the reason the firearm was loaded. The Judge observed that the presence of two young children under four at the address seriously aggravated the offending, with the Judge noting their “mobile and inquisitive” nature and the real potential for significant harm, either to the person coming to the door or to the children.10 It was described as a tragedy waiting to happen.
[7] After noting the entirely illegal purpose for Mr Ross’ possession of the firearm and the need for denunciation and deterrence, a starting point of two years and two months’ imprisonment was adopted for the methamphetamine offending which was uplifted by a further 20 months’ imprisonment for the Arms Act offending. A further uplift of one month was imposed for the refusal by Mr Ross to provide access to his phone, and an additional one month imposed in respect of the two charges of breaching the sentences of community work and supervision. No totality adjustment was considered necessary.
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
9 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [71].
10 R v Ross, above n 1, at [29].
[8] A full 25 per cent credit was extended to Mr Ross for his guilty pleas. After canvassing Mr Ross’ background, a further 10 per cent discount was allowed for personal mitigating factors. This resulted in an end sentence of two years and seven months’ imprisonment. A firearms prohibition order was also made which is not the subject of challenge.11
The appeal
[9] The sole ground advanced on the appeal was that the overall starting point adopted by the Judge was excessive. It was argued the Judge’s approach to the amount of methamphetamine possessed was incorrect, and the starting point for that offending should not have exceeded two years’ imprisonment. However, the primary submission related to the uplift for the firearm offence. It was argued the uplift on a totality basis should not have been more than between 12 to 15 months and this had resulted in a manifestly excessive sentence. There is no challenge to the discounts applied for personal mitigating factors.
Approach to appeal
[10] An appeal against sentence will only be successful if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.13 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.14
11 Arms Act, s 39A.
12 Criminal Procedure Act 2011, s 250(2) and (3).
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].
14 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
Starting point for methamphetamine offending
The argument
[11] On behalf of Mr Ross, Ms Saunderson-Warner argued that the sentencing Judge ought to have treated the total weight of methamphetamine as 3.99 g because this was the amount that had been reported to the Court by the police in its opposition to bail document. It was suggested that, had Judge Turner taken that approach, he could only have treated the offending as falling into Band 1 of Zhang, rather than concluding the offending was on the “cusp of Band 1 and 2” when setting the starting point.15 It followed, in counsel’s submission, that the starting point for the methamphetamine offending could not have exceeded two years’ imprisonment.
[12] Ms Saunderson-Warner acknowledged a starting point only two months higher than that set by the sentencing Court could not be described as outside the available range, but counsel submitted the starting point was at the very top of the range for a low-level street dealer possessing not more than 4 g of methamphetamine, which was a feature that should at least be taken into account when considering the prime submission relating to the size of the uplift imposed in respect of the firearms offending.
Analysis
[13] The sentencing Judge’s assessment of the amount of methamphetamine was based on the content of the summary of facts which recorded that Mr Ross had been found in possession of 18 small zip lock bags, each containing between 0.2 and 0.3 g of methamphetamine. Mr Smith, on behalf of the Crown, submitted that whether approached on the basis of a calculation based on the figures in the summary of facts or the amount of methamphetamine stated in the bail document, the two year and two month starting point was readily available.
[14] In support of that submission, Mr Smith referred to the Court of Appeal’s decision in Crighton v R, which involved the supply or offering to supply a total of
15 R v Ross, above n 1, at [19].
3.75 g of methamphetamine by an appellant on 14 separate occasions.16 That person was considered to fall at the very bottom of the supply chain, having no actual financial motivation for her offending which was due solely to addiction and the need to supply her partner to prevent her in order to avoid violence. A starting point of two years’ imprisonment was considered appropriate.17
[15] In contrast, Mr Ross was found on only the one occasion in possession of a comparable amount of the drug of which, he told a pre-sentence report writer, he had a constant supply. Moreover, it was accepted by Mr Ross that he was involved in trafficking the drug, albeit at a street level, for commercial purposes and was operating as a sole trader. He was not answerable to others, nor, importantly, dealing to sustain an addiction. The contrast between Mr Ross’ methamphetamine dealing activity and the appellant in Crighton demonstrates the additional two months cannot realistically be impeached, nor can it materially advance the appeal.
Uplift for firearms offending
The argument
[16] The nub of Mr Ross’ appeal centres on the size of the uplift imposed for the Arms Act charges. Ms Saunderson-Warner submitted the imposition of a further 20 months imprisonment was excessive and that any uplift ought not to have been greater than 12 to 15 months. It was stressed that a Court of Appeal decision, Campbell v R,18 upon which the sentencing Judge placed considerable reliance, was not a decision involving the imposition of an uplift for firearms that accompanied drug offending but was a case dealing with “stand-alone” firearms offending.
[17] It was submitted that starting points adopted in respect of the unlawful possession of firearms which constitute the lead offence are not comparable to where those charges supplement more serious offending, such as methamphetamine dealing, and are dealt with by way of uplifts.19 It followed, in Ms Saunderson-Warner’s submission, that Campbell, which was a stand-alone firearms case, was of limited
16 Crighton v R [2019] NZCA 507, [2019] NZLR 648 at [193]–[203].
17 At [198].
18 Campbell v R [2022] NZCA 579.
19 Citing Taranaki v Police [2021] NZHC 2746 at [73].
assistance when determining the appropriate uplift to apply where a defendant is for sentence on firearms charges in conjunction with methamphetamine offending.20
[18] Ms Saunderson-Warner referred to several sentencing decisions of both this Court and the Court of Appeal which, in her submission, indicated that a combined starting point for both sets of offending should not have been any more than between 36 to 39 months’ imprisonment.21 Counsel contended the imposition of a 24-month prison term for the methamphetamine offending and an uplift of no greater than 15 months’ imprisonment for the Arms Act charges could have been imposed.22
Analysis
[19] I accept the sentencing Judge placed considerable reliance on Campbell. In that case it was held that the possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment.23 In providing that guidance, the need for denunciation and deterrence was emphasised by the Court of Appeal, as it has in other cases.24
[20] In the present case, the Judge, when rejecting the defence submission that an uplift of no more than six months would be appropriate for the possession of the firearm and ammunition, observed that many of the decisions relied upon in support of that submission predated the Court of Appeal’s approach. The Judge took the view that the Court of Appeal’s recent approach in Campbell, regarding firearms offending, reflected a particular recent concern about the “dramatic increase in firearms offending in this country”.25
[21] Ms Saunderson-Warner submitted the Judge had fallen into error in taking that approach. It was argued the Court of Appeal, when holding that the possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment, had cited a number of other
20 Campbell v R, above n 18.
21 Kee v R [2023] NZHC 1133; Henderson v Police [2021] NZHC 78; Pona v R [2020] NZHC 3503;
22 Haggie v R [2011] NZCA 221; Mills v R [2016] NZCA 245; Joyce v R [2020] NZCA 124; R v Paora [2020] NZHC 1595; Samuels v R [2022] NZHC 432.
23 Campbell v R, above n 18, at [18].
24 Geels v R [2022] NZHC 3275 at [29]; and Isle v Police [2022] NZHC 2454 at [33].
25 R v Ross, above n 1, at [35].
authorities that had made similar observations and that the Court was merely stating the law as it was, rather than seeking to increase applicable starting points. However, Ms Saunderson-Warner’s key point was that the Judge had failed to appreciate this was not a case that gave guidance when firearms offending was being dealt with by the sentencing Court in conjunction with another lead offence, such as class A drug- dealing. It was also submitted the facts of Campbell were more serious because it involved five guns that had recently been stolen in an aggravated robbery, one of which had been modified.
[22] I accept the Court of Appeal in Campbell was doing no more than stating the accepted range of starting points for the possession of a firearm in the absence of mitigating circumstances, which reflect the need to condemn their unlawful availability and lethal danger, as long recognised by the senior courts.26 Starting points in the vicinity of two to three years’ imprisonment have been and continue to be viewed as appropriate.27
[23] In the present case, the sentencing exercise required an assessment of the extent to which the starting point for the methamphetamine offending was required to be uplifted for the significant aggravating feature of the associated possession of a firearm and ammunition. While Ms Saunderson-Warner sought to differentiate between stand-alone firearms charges and uplifts imposed where Arms Act charges have been laid in the context of drug offending, the Court is still required to impose an appropriate sentence for what is a relatively serious charge. The offending is, of course, no less serious because it is accompanied by other offending. To the contrary, often it will be viewed as particularly serious in a drug-dealing context.
[24] There ought not be any real difference in the sentence firearms offending will attract either when standing alone or when charged together with other offending, apart from the necessary adjustment required for the purpose of taking into account the important principle of totality. However, because methamphetamine offending and the possession of firearms have become so ubiquitous, a body of sentencing authority
26 See, for example, R v Richardson CA450/02, 25 March 2003.
27 Curtis v R [2022] NZHC 2816; Torea v R [2011] NZCA 96; Herewini v Police [2014] NZHC 2396;
Dewes v Police HC Christchurch A60/03, 12 June 2003.
has developed which provides guidance as to the size of the uplift that should generally be imposed in such circumstances.
[25] It appears to be accepted that where a firearm is found in circumstances associated with drug offending, uplifts of between 12 to 18 months’ imprisonment will usually be considered appropriate.28 Ms Saunderson-Warner submitted that she had been unable to locate a case where an uplift of 18 months had been imposed, but the fact remains there is clear authority that such an uplift would fall within the available range depending on the particular circumstances of the case and the sentencing Judge’s discretion. The uplift of 20 months adopted by the sentencing Judge in this case appears to fall outside the generally accepted range of uplift for this type of offending and, arguably, was excessive.
[26] However, there is an aspect of this offending which needs to be considered further. Mr Smith made the point that the Arms Act charges faced by Mr Ross carry a maximum sentence of five years’ imprisonment, rather than the four years maximum which usually attaches to charges of unlawful possession of firearms. The cases reviewed here were concerned with the four year maximum charge. The additional one year reflects the aggravating feature of the offence that derives from the firearm having been possessed at the time the defendant committed an offence punishable by a term of imprisonment of three years or more.29 Ms Saunderson-Warner sought to minimise this feature by submitting the focus must be on the nature of the actual offending which was similar to the factual circumstances of the other cases. Nonetheless, the fact remains the maximum penalty that attaches to an offence is an indicator of its relative seriousness.
[27] In the context of ongoing drug-dealing, an offender will often be in possession of a firearm at the time of committing the offence of possessing methamphetamine for supply. However, in this case the firearm was loaded and positioned with its safety catch off for the purpose of what was believed could be its imminent use. Beyond the normal concerns arising from firearms and drugs was the fact the firearm was
28 Mills v R [2016] NZCA 245 at [18]; Henderson v Police , above n 21, at [24]; and Joyce v R, above n 22, at [24].
29 Arms Act, s 54(2).
accessible to very young children and, in effect, almost directly “in play” with Mr Ross having acknowledged his intention to use the weapon. This is a significant aggravating feature.
Conclusion
[28] As I have already observed, the appeal court is required to make an assessment of whether the effective sentence ultimately imposed was manifestly excessive. Importantly, where the offending concerns a combination of charges, whether the sentence accurately reflects the overall seriousness of the offending and the offender’s culpability.
[29] While I assess the uplift of 20 months’ imprisonment in respect of the firearms offending to have been overly stern, regard needs to be had to the particular Arms Act charge for which Mr Ross was for sentence, namely, that of possessing a firearm while committing an offence. Moreover, there are the highly dangerous circumstances in which he possessed the unlawful weapon. The starting point for the methamphetamine offending was unremarkable and, when the ultimate sentence for the drugs and firearms charges is assessed in combination, I am not brought to the point where I can conclude the sentence imposed for all the offending was manifestly excessive.
Result
[30]The appeal is dismissed.
Solicitors:
Crown Solicitor, Dunedin
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