Ross v The Queen
[2020] NZHC 1322
•12 June 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000029
[2020] NZHC 1322
BETWEEN CONNIE ELIZABETH ROSS
Appellant
AND
THE QUEEN
Respondent
Hearing: 11 June 2020 Appearances:
P J Kaye for Appellant
C J Boshier for Respondent
Judgment:
12 June 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 12 June 2020 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date 12 June 2020
Introduction
[1] The appellant, Ms Ross, pleaded guilty to, and was sentenced on, the following charges:
(a)supply of methamphetamine (representative);
(b)conspiring to possess methamphetamine for supply;
(c)unlawful possession of a firearm (2);
ROSS v R [2020] NZHC 1322 [12 June 2020]
(d)attempting to pervert the course of justice; and
(e)false representation.
[2] Judge Neave imposed a sentence of two years and nine months’ imprisonment. Ms Ross now appeals that sentence on the grounds it was manifestly excessive.
Background facts
[3] In September 2017 the Christchurch police initiated an investigation into the criminal activities of the Tribesman Outlaw Motorcycle Gang. The operation was codenamed Operation Volcano. On 2 October 2017 police began intercepting the private communications of the first defendant, Mr Smith, who is Ms Ross’s son. It was established that Mr Smith was heavily involved in the sale and distribution of methamphetamine.
[4] Between 2 October and 27 November 2017 intercepted communications showed drug dealing transactions were often discussed between Mr Smith and Ms Ross. These communications showed Ms Ross had a clear knowledge and involvement in Mr Smith’s drug dealing. The involvement included procuring places to hide methamphetamine, cash and assets, and organising Mr Smith’s finances, including hiding large sums of cash. This offending resulted in the charge of supply of methamphetamine.
[5] On 8 October 2017 Mr Smith arranged a methamphetamine deal. At 4.23 pm Mr Smith called Ms Ross and asked how much money was at their home address. Ms Ross informed him there was $35,000 or $40,000. Mr Smith instructed her to count over $30,000 in cash and said an associate would be coming to collect it. Mr Howard, a co-defendant, called Mr Smith from Ms Ross’s phone to inform him that he had the cash. The money was purportedly used to purchase approximately three ounces of methamphetamine. On 9 October 2017 Mr Smith spoke by phone with Ms Ross and informed her of the poor quality of the methamphetamine they had purchased. This offending resulted in the charge of conspiring to possess methamphetamine for supply.
[6] Between 2 October and 27 November 2017 Ms Ross encouraged Mr Smith on multiple occasions to either destroy his cell phone, electronically wipe the phone of its data or change his cell phone number. This offending resulted in the charge of attempting to pervert the course of justice.
[7] In October 2017 Ms Ross signed Mr Smith’s New Zealand passport application and photo. A passport was subsequently issued on 7 November 2017. Mr Smith attempted to leave the country using the knowingly forged passport. Subsequent handwriting analysis of the original passport application showed that Ms Ross wrote the document and Mr Smith did not sign it. This offending resulted in the charge of false representation.
[8] On 11 October 2017 Ms Ross advised Mr Smith that there was a gun at their address and she would get “rid of it” as they need to “clean up”. On 9 November 2017, Ms Ross advised Mr Smith the gun was gone.
[9] Upon the execution of a search warrant a semi-automatic pistol was located hidden inside a pile of clean laundry in the lounge area. These offences resulted in the two charges of unlawful possession of a firearm.
District Court decision
[10] On 19 February 2020 Judge Neave sentenced Mr Smith, Ms Ross and Mr Powhiro on their respective roles in the drug conspiracy operation.1 The sentencing had been delayed pending the Court of Appeal decision in Zhang v R.2 The Judge noted the focus, following Zhang, is on the level of criminality and not solely on the sentencing bands, although he had anticipated that approach when giving an earlier sentencing indication.
[11] The Judge considered Ms Ross had an operational or management role, in essence, acting as the bookkeeper. While she did not have a hands-on role in the distribution of the drugs, the Judge considered her to be an “essential lynchpin” to the operation having earlier described her being responsible for storing material, disposing
1 R v Smith [2020] NZDC 3140.
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
of evidence, and controlling the money.3 However, he accepted she was not involved in directing others, nor was she solely motivated by financial gain. That said, the Judge considered she must have had some awareness of the scale of the operation. He initially described Ms Ross’s role as “significant”,4 but then acknowledged it slid between “significant and lesser”.5
[12] The Judge noted that the evidence of factors which led her to offend, including addiction, ought to be considered in assessing culpability.6 Further, the Judge noted that a commitment to rehabilitation and a desire to make a change should result in an appropriate level of sentence credit.7
[13] The Judge had adopted a starting sentence of five years’ imprisonment when giving a sentencing indication for Ms Ross. However, he reduced that by six months to reflect the addiction issues that lead to Ms Ross’s offending. A further discount of 12 months was applied to reflect the 20 months spent on electronically monitored (EM) bail. A discount of 10 per cent for guilty pleas was applied, noting she had rejected a sentencing indication and the pleas came very late. This brought the sentence, rounded up, to 37 months’ imprisonment. The Judge then expressly noted he could have uplifted for her previous conviction for attempting to defeat the course of justice but had not. He then also applied a further credit of four months to reflect the attendance at Red Door residential rehabilitation. This brought the end sentence to two years and nine months’ imprisonment.
Principles on appeal
[14] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 As the Court of Appeal mentioned in Tutakangahau v R quoting the
3 R v Smith, above n 1, at [9].
4 At [7].
5 At [9].
6 At [11] and [23].
7 At [14] and [30].
8 Criminal Procedure Act 2011, ss 250(2) and 250(3).
lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10 The end sentence is the focus of the appeal, rather than the process by which it is reached.11
Submissions
Appellant’s submissions
[15] Mr Kaye, counsel for Ms Ross, submits the starting point for the methamphetamine offending should have been lower than four and a half years, having regard to Zhang v R.12 Ms Ross’s overall role in the offending is said to be lesser and warranted a starting point of three and a half to four years. She had limited involvement in the actual supply of methamphetamine, did not have management over others and was not motivated primarily by financial gain. Her motivation was primarily addiction and loyalty to her son, as demonstrated in her letter to the Judge in the District Court.
[16] Mr Kaye submits a further discount to reflect Ms Ross’s addiction issues is warranted. Mr Kaye notes that addiction impairs rational choice and can limit culpability in drug offending, diminish the deterrent aspect of sentencing, and make the effect of a term of imprisonment more severe.13 The Court of Appeal in Zhang considered discounts of up to 30 per cent are available where addiction is causative of the offending.14
[17] Mr Kaye also submits the successful completion of the Red Door Rehabilitation programme warranted a greater discount in sentence than four months and a further discrete discount should have applied for remorse as expressed in Ms Ross’ss letter.
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
11 Islam v R [2020] NZCA 140 at [32].
12 Zhang v R, above n 2.
13 At [138].
14 At [149].
Respondent’s submissions
[18] Ms Boshier, for the Crown, submits the sentence was within range given the Judge’s factual findings in relation to Ms Ross’s role and culpability for the significant commercial drug dealing operation.
[19] In support of the submission that the starting sentence was appropriate, Mrs Boshier notes the Judge did not apply an uplift to reflect Ms Ross’s previous, and recent, conviction for perverting the course of justice, nor did the Judge increase the starting point to take into account the other offending. Further, the total discounts given were 45 per cent, which is illustrative of the merciful approach taken by the Judge.
[20] In respect of the starting point, Ms Boshier notes the Judge placed Ms Ross on the cusp between bands three and four of Fatu.15 Band three attracts sentences of six to 12 years’ imprisonment and band four, eight to 16 years imprisonment, based on the adjustments made in Zhang.16 The starting sentence began one year below band three and was then reduced by a further six months to take account of personal issues going to culpability.
[21] While Mr Kaye advocates Ms Ross’s role was at the lower end of band two, Ms Boshier submits there is no evidence to disturb the Judge’s factual findings as to her level of involvement. Further, band two in Zhang attracts a sentence of two to nine years, so the starting point was in the middle of that band in any event.
[22] Addressing the contention that a greater discount for addiction issues ought to have been given, Ms Boshier notes that 11 per cent was effectively given for Ms Ross’s personal issues by discounting the five year starting point by six months and a further 10.8 per cent discount was applied for the attendance at Red Door rehabilitation programme. This resulted in just under 22 per cent for personal and addiction issues which was generous. Further, Ms Boshier notes no material was made available to the Court at the time of the sentencing indication to show that addiction
15 R v Fatu [2009] NZCA 161.
16 Zhang v R, above n 2 at [125].
issues were causative of the offending. It is noted the Red Door report refers to “previous substance use”, rather than a serious addiction issue. In addition, there was a lengthy period of time between Ms Ross being arrested and sentenced where it appears she was not using methamphetamine and was working in a responsible nursing job administering medications which told against her suffering a debilitating addiction.
Analysis
[23] The lead offending is the charge of supply of methamphetamine. The tariff judgment for methamphetamine offending is Zhang v R.17 Zhang acknowledged that quantity of the drug is a relevant measure of culpability.18 In this offending, the precise quantity is not known. However Judge Neave in his sentencing indication states the total quantity was approaching 500 grams.19 This quantity would provisionally place the offending within band three which indicates a starting sentence range of six to 12 years’ imprisonment.
[24] Zhang also acknowledged the need to assess the level of criminality involved when sentencing. To assist in that assessment it divided the role of the offender into three categories: leading, significant and lesser, and provided relevant descriptions and indicia to be taken into account.20
[25] Although Mr Kaye submitted Ms Ross’s role was lesser, it is clear from the summary of facts that Ms Ross played an operational role in handling the finances of the operation, including storage and disbursement of large quantities of cash which were recorded in a ledger type book. The communications intercepted between Mr Smith and Ms Ross include her discussing storing assets, methamphetamine and drug paraphernalia at her home address and show she had a clear knowledge and involvement in Mr Smith’s drug dealing.
17 Zhang v R, above n 2.
18 At [103].
19 R v Smith, HC Christchurch CRI-2017-009-10812, 20 February 2019.
20 Zhang v R, above n 2, at [115] and [126].
[26] I consider the Judge accurately pitched Ms Ross’s role as sitting somewhere between lesser and significant. While Ms Ross took a lesser role in the operation than her co-defendants, she must carry the responsibility for the operational functions she performed. The operation was commercial. It was not small-scale.
[27] In my view, a starting sentence of at least five years’ imprisonment could readily have been imposed on the lead offending using the Zhang criteria and there can be no criticism of the lesser starting point that the Judge adopted, particularly when he did not uplift it for the other offending but rather treated it as indicative of her culpability in the drug-related offending.
Other offending
[28] I consider the other charges to be connected to the drug offending. They were taken into account in assessing the relatively significant role Ms Ross had in the offending. Having done this, the Judge was correct not to uplift the starting point in respect of those charges.
Mitigating factors
[29] The mitigating factors are the time spent on EM bail, addiction issues, and guilty pleas.
[30] Ms Ross spent some 20 months on EM bail. She is noted to have complied with very restrictive conditions. The Court of Appeal and High Court have applied discounts of slightly less than half the time spent on EM bail where restrictive conditions have been imposed.21 That would suggest a discount of up to 10 months was justified. Again, the discount applied by the Judge was generous at 12 months and Mr Kaye took no issue with this.
[31] Where there is a causal nexus between the offending and the appellant’s addiction issues, a discrete discount of up to 30 per cent may be warranted.22 Ms Ross
21 McMillan v Police [2019] NZHC 3323; Parata v R [2017] NZCA 48 at [12] and [15]; R v R [2017] NZCA
210 at [14]; Wharrie v R [2019] NZHC 633 at [28]; and R v Rose [2017] NZHC 1488 at [48].
22 Zhang v R, above n 2, at [147]-[149].
states she was motivated by addiction. Furthermore, she has successfully completed the Red Door rehabilitation programme. However, I accept Ms Boshier’s submissions that evidence of an addiction that impaired Ms Ross’s ability to make rational choices was lacking. The pre-sentence report recorded her ability to go for weeks without using drugs and her ability to hold down a responsible nursing job prior to participating in a drug rehabilitation programme also told against this. Nevertheless, the Judge incorporated a discount into the starting point for this factor and provided a discount for her attendance at a rehabilitative programme. I am satisfied the Judge did take adequate account of the evidence of addiction.
[32] In respect of guilty pleas, which came in very late, I see no reason to disturb the 10 per cent discount applied by Judge Neave. I also note the Judge declined to uplift the sentence to reflect previous offending, which was to Ms Ross’s advantage.
[33] In my view, the starting point adopted by the Judge was lenient and Ms Ross was advantaged by the Judge’s decisions on whether to uplift or discount the sentence. The end sentence was clearly not manifestly excessive.
Conclusion
[34]The appeal is dismissed.
Solicitors:
P J Kaye, Auckland
Raymond Donnelly & Co., Christchurch
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