Royal v R
[2020] NZCA 129
•30 April 2020 at 9.30am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA601/2018 [2020] NZCA 129 |
| BETWEEN | SHANE KAWA ROYAL |
| AND | THE QUEEN |
| Hearing: | 26 February 2020 |
Court: | Miller, Dobson and Moore JJ |
Counsel: | J Keung and G Vear for Appellant |
Judgment: | 30 April 2020 at 9.30am |
JUDGMENT OF THE COURT
A The application for extension of time to appeal is granted.
B The application to adduce further evidence on appeal is granted.
C The appeal is allowed.
D We quash the sentences passed in the District Court and substitute those listed at [29].
E We also quash the MPI.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
This appeal is brought against a sentence of seven years imprisonment imposed on charges of, among other things, possessing 15.6 g of methamphetamine for supply.[1]
[1]R v Royal [2018] NZDC 14395.
Mr Royal was sentenced under the former methamphetamine guideline judgment, R v Fatu,[2] and his is one of a number of appeals the disposition of which has been delayed pending the updated guidelines issued in Zhang v R.[3]
[2]R v Fatu [2006] 2 NZLR 72 (CA).
[3]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
The notice of appeal was filed on 3 October 2018, before the Court issued its judgment in Zhang on 21 October 2019. However, the appeal was 37 working days out of time and it requires an extension under s 248 of the Criminal Procedure Act 2011. For reasons given in Su v R, which was heard on the same day as Mr Royal’s appeal, we hold that the appeal is governed by Zhang.[4] The Crown does not oppose an extension on the merits, and we grant it accordingly.
The facts
[4]Su v R [2020] NZCA 128 at [4]. See Zhang v R, above n 3, at [188].
On 17 May 2016 Mr Royal was found to be in possession of 5.6 g of methamphetamine, 50 mL of GBL and $2,020 in cash. He was granted EM bail.
On 12 July 2017, while he was still on bail, his address was searched pursuant to a search warrant. The police located 14 g of methamphetamine (10 g stored and 4 g on his person), 596.6 g of GBL, 658 mg of MDMA, 19 tabs of LSD, five 10 mg ampules of morphine, 90 g of cannabis, a methamphetamine pipe and $75,960 in cash. It was also established that on four separate occasions in April 2017 he had supplied his 16-year-old son with cannabis, totalling eight pounds; this he accounted for by saying he was concerned for the boy’s mental health.
Mr Royal was aged 50 at sentencing on 16 July 2018. The record before us includes reports from the Odyssey House drug treatment programme which sufficiently confirm his long-standing addiction to methamphetamine and address his potential for treatment.
The sentence
Judge Burnett recognised that the effective sentence might be structured in several ways. It appears that she opted to fix separate starting points for all of the July 2017 and all of the May 2016 offending, using the methamphetamine charges as the lead offence on each occasion. The starting points were four and a half years and two years and four months respectively. She added a year to the July 2017 offending for previous convictions and offending while on bail. She allowed guilty plea discounts of 15 to 20 per cent and 10 to 15 per cent respectively for the July 2017 and May 2016 offending. She stated that this resulted in the end sentence of seven years imprisonment. It is common ground that this last step involved a miscalculation; using the Judge’s methodology the end sentence ought to have been between six years, five months and six years, nine months imprisonment.
The Judge imposed a minimum period of imprisonment of 50 per cent, noting Mr Royal’s proven high risk of reoffending.
The appeal
On appeal Mr Royal takes issue with the overall starting point for the methamphetamine offending. He seeks a reduction in the starting point and a discount for his addiction, and he contends that an MPI was not warranted.
If all else fails, Mr Royal asks that we give the benefit of the larger discount he received for guilty pleas to correct the Judge’s calculation error.[5] It is common ground that, assuming a discount of 15 per cent on the May 2016 and 20 per cent on the July 2017 offending, it ought to have resulted in an effective sentence of six years five months imprisonment.
The starting point
[5]See Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ferris-Bromley v R [2017] NZCA 115 at [15].
Mr Keung argued that this case ought to be placed at the middle of Zhang band two (between 5 and 249 g, with a starting point between two and nine years imprisonment). He invited us to infer that the offending was partly attributable to addiction and submitted that Mr Royal was consuming the drug on a large scale. He submitted that for the July 2017 offending Mr Royal was not dealing from his address but rather allowing others to warehouse drugs and cash there. He sought to draw a parallel with Phillips v R, one of the appeals decided in Zhang.[6] He suggested a global starting point for all of the drug offending of six years imprisonment.
[6]Zhang v R, above n 3, at [204]–[228].
For the Crown, Ms Hoskin contended that the Judge’s overall starting point of six years ten months is readily available under Zhang. She reminded us that quantity is a proxy for social harm and remains the first determinant of sentencing. She examined the table found at [126] of Zhang, which we replicate for convenience:
| Role | ||
| Lesser | Significant | Leading |
| 1. Performs a limited function under direction; 2. engaged by pressure, coercion, intimidation; 3. involvement through naivety or exploitation; 4. motivated solely or primarily by own addiction; 5. little or no actual or expected financial gain; 6. paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved; 7. no influence on those above in a chain; 8. little, if any, awareness or understanding of the scale of operation; and/or 9. if own operation, solely or primarily for own or joint use on non-commercial basis. | 1. Operational or management function in own operation or within a chain; 5. some awareness and understanding of scale of operation. | 1. Directing or organising buying and selling on a commercial scale; 6. abuses a position of trust or responsibility. |
Ms Hoskin emphasised that these role indicia serve as guidance rather than a culpability checklist; not all will apply in a given case, nor are they exhaustive. An assessment of culpability requires attention not only to seniority in a hierarchy but also the nature of the offending and its scale and duration. She accepted that some indicia recognise that offending driven by addiction indicates a “lesser” role but emphasised that courts should focus on the offender’s conduct when determining role and position within the sentencing band. Personal mitigating factors arising from addiction should be taken into account at the second stage of sentencing analysis, so avoiding it double counting.
We begin by recording that, as the Court noted in Zhang, the facts necessary to establish guilt often justify inferences about role, knowledge and gain, and where these inferences suffice to prove an aggravating factor to the criminal standard an evidential burden will move to the offender to displace the inference.[7]
[7]At [127].
In this case, Mr Royal pleaded guilty to possession of the drugs for the purpose of supply. The quantities of methamphetamine and other drugs were commercial, and he also held a large sum of money. The bare facts amply justify the inference that his was not a lesser role. He was confined to his house, as Mr Keung pointed out, but we are not persuaded that he was merely warehousing the drugs and cash. Even if he were, he would still be a trusted intermediary in what was clearly a continuing commercial operation the scale of which must have been known to him.
We turn to the impact of addiction on the starting point. We accept Ms Hoskin’s submission that at this stage the court is gauging the offender’s conduct. Addiction may evidence a lesser role, as where the offender is dealing for personal use rather than financial gain and is unaware of the scale of the operation.
Where it impaired the rational choice to commit the offence, addiction may also mitigate culpability.[8] It may further indicate that the sentence is unlikely to deter the offender or, where the addiction has been addressed since the offending, that personal deterrence is unnecessary.[9] It may justify a merciful sentence where the sentence could be disproportionately severe.[10] And it may suggest a rehabilitative sentence aimed at treating the cause of offending.[11] But these last three considerations are taken into account at the second stage. To recognise this is to reduce the risk that addiction will be “double counted” or given undue weight in the effective sentence.
[8]At [138].
[9]At [138].
[10]At [138].
[11]At [150].
We do not accept that Mr Royal was motivated solely or primarily by his own addiction. The quantity of drugs and cash together justify the inference that he was not dealing to obtain only enough methamphetamine for his own use. There is nothing to show that he was paid in drugs or anticipated little or no financial gain. Accordingly, addiction does not warrant reducing the starting point.
Nor do we accept that Mr Royal’s role is analogous to that of Ms Phillips in Zhang. She was a low-level supplier led by personal loyalty to accompany a principal offender transporting 6 kg of methamphetamine. Unlike the present case, there was no evidence suggesting Ms Phillips received financial gain or commercial benefit. The principal offender conducted the operation and Ms Phillips’ input was minimal. The sentencing Judge had recognised that, and this Court upheld the starting point of five years imprisonment.
The Zhang indicia overall lead us to characterise Mr Royal’s role as significant. That being so, we consider that a starting point of around seven years was appropriate once account is taken of the quantity of methamphetamine, the cash and the other drug offences, which were significant in themselves and confirm the commercial nature of the enterprise in which Mr Royal was engaged. We observe that the Crown suggested at sentencing that the non-methamphetamine offending justified an uplift of three and a half years.[12] We note that if, hypothetically, the non-methamphetamine offending were put aside, the weight of methamphetamine would place him near the bottom of band two but his significant role in a continuing methamphetamine supply operation of some scale would warrant a starting point of around four years.
Discounts for addiction and rehabilitative potential
[12]R v Royal, above n 1, at [10].
The pre-sentence report recorded that Mr Royal was addicted and noted that he was motivated to address his addiction by attending residential treatment. No allowance was made in the District Court, the Judge presumably adopting the traditional rule that personal circumstances are of secondary importance. The Odyssey House material to which we have referred relates to his post-sentencing assessment and treatment. There was no objection to its admission in the post-Zhang circumstances of this appeal, and we will do so. It supplies sufficiently persuasive evidence that Mr Royal has graduated from the treatment programme and expresses the opinion that he has a comprehensive and robust relapse prevention and reintegration plan.
Mr Keung argued that a discount is warranted here. He submitted that there is a causal connection between Mr Royal’s addiction and his offending and that the evidence justifies a rehabilitative sentence.
Ms Hoskin responded that there is no causal connection, pointing out that the offending was commercial in scale and generated significant profits. That being so, she submitted, addiction does not mitigate culpability though it might warrant an allowance for rehabilitation.
The Court held in Zhang that it is impaired capacity to make decisions that mitigates culpability and such impairment is unlikely to cause commercial dealing.[13] Causative impairment is more likely in cases of street-level or self-sufficient dealing. It may well be, as Mr Keung submitted, that addiction contributed to this offending, but more is required. The question is whether addiction impaired Mr Royal’s capacity to make the commercial decisions he made. This Court also held that any discount should be based on persuasive evidence about the extent and effects of addiction.[14] There is no such evidence here. Addiction does not mitigate culpability in this case.
[13]Zhang v R, above n 3, at [147].
[14]At [148].
However, we accept that Mr Royal has real prospects of remaining offence-free on release. His addiction having been treated, personal deterrence assumes less significance.[15] No alternative to imprisonment is available,[16] but the sentence length can be adjusted to reflect rehabilitative potential.
[15]At [146].
[16]At [150] and [175].
We will allow 10 per cent for these considerations.
The effective sentence
We have indicated that a starting point of seven years was appropriate. No dispute is taken with the uplift of one year for previous convictions and offending while on bail.
Recognising that the July 2017 offending must dominate sentencing, we will allow Mr Royal a discount of 20 per cent for his guilty pleas. That might be thought generous, but there had been a significant adjustment to charges at a late stage and Ms Hoskin accepted that discount is appropriate in the circumstances.
Both discounts will be calculated as a percentage of the starting point plus uplifts.[17] The effective sentence after the discounts is six years two months imprisonment. We structure that as follows, noting that the short-term sentences are the same as those imposed by the Judge:
[17]Departing in this respect from Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298. See Reweti v R [2018] NZHC 809 at [22]–[24] and authorities cited therein.
| Offence | CRN Number | Sentence (all concurrent) |
| July 2017 Offending | ||
| Possession of meth for supply | 18019500928 | 6 years 2 months imprisonment[18] |
| Possession of GBL for supply | 17075000827 | 4 years imprisonment[19] |
| Supplying cannabis | 17019006812 | 1 year 2 months imprisonment |
| Supplying cannabis | 18019500190 | 1 year 2 months imprisonment |
| Supplying cannabis | 18019500191 | 1 year 2 months imprisonment |
| Supplying cannabis | 18019500192 | 1 year 2 months imprisonment |
| Possession of utensil | 17019006809 | 6 months imprisonment |
| Possession of meth | 17019006806 | 4 months imprisonment |
| Possession of LSD | 17019006807 | 4 months imprisonment |
| Possession of cannabis | 17019006808 | 1 month imprisonment |
| Possession of morphine | 17019006811 | 1 month imprisonment |
| Possession of MDMA | 17075000828 | 1 month imprisonment |
| May 2016 Offending | ||
| Possession of meth for supply | 16057000852 | 3 years imprisonment[20] |
| Possession of utensil | 16057000853 | 6 months imprisonment |
| Possession of GBL | 16057000854 | 1 month imprisonment |
[18]Previously seven years imprisonment.
[19]Previously seven years imprisonment.
[20]Previously seven years imprisonment.
Because the sentence was passed before Zhang was delivered, we approach the appeal not as a search for error but by comparing the outcome against the Zhang guidelines. It is not a re-sentencing, because we can rely on the sentencing Judge’s factual findings and assessment of culpability, but where the Zhang guidelines produce a lesser outcome it is appropriate that we alter the sentence. In this case the outcome is materially less than the effective sentence imposed in the District Court, and we will alter the sentence accordingly.
MPI
Ms Hoskin argued that an MPI was warranted in this case. But for Mr Royal’s personal circumstances and potential for rehabilitation, we would agree. These considerations offset the risk of reoffending on which the Judge relied.[21] An MPI is not warranted in the circumstances.
Disposition
[21]R v Royal, above n 1, at [13]–[14].
The application for extension of time to appeal is granted.
The application to adduce further evidence on appeal is granted.
The appeal is allowed.
We quash the sentences passed in the District Court and substitute those listed at [29] above.
We also quash the MPI.
Solicitors:
Public Defence Service, Hamilton for Appellant
Crown Law Office, Wellington for Respondent
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