Rubie v The King
[2025] NZHC 98
•10 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000542
[2025] NZHC 98
BETWEEN JAMES RUBIE
Appellant
AND
THE KING
Respondent
Hearing: 4 February 2024 Counsel:
P D Wilks (on instructions from E P Priest) for Appellant W J A Te Hiko and H J Bell for Respondent
Judgment:
10 February 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 10 February 2025 at 11.30 am
Registrar/Deputy Registrar
Solicitors/Counsel:
Emma Priest (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
RUBIE v R [2025] NZHC 98 [10 February 2025]
Introduction
[1] Mr Rubie appeals his sentence of three years and one month’s imprisonment imposed on him by Judge J M Jelaš on 11 September 2024.1
[2]Mr Rubie pleaded guilty on 17 May 2024 to the following charges:
(a)Possession of methamphetamine for supply (20.5 grams);
(b)Possession of GHB for supply2 (239 bottles of a GHB derivative containing a total of 4,063 millilitres and one bottle of another derivative containing 69 millilitres);
(c)Supply of methamphetamine (representative) (at least four grams, on two occasions); and
(d)Supply of GHB (representative) (quantity unknown, on at least four occasions).
[3] I must allow Mr Rubie’s appeal if I am satisfied that, for any reason, there is an error in the sentence and a different sentence should be imposed.3
[4] Mr Rubie submits that his sentence is manifestly excessive and must be corrected on the grounds that:
(a)the Judge allowed a 10 per cent discount for Mr Rubie’s personal factors (including his drug addiction) when those factors warranted a discount of 20 per cent; and
(b)the Judge should have discounted Mr Rubie’s sentence by 25 per cent to take account of his pleas of guilty rather than the 20 per cent actually allowed.
1 R v Rubie [2024] NZDC 23142.
2 GHB is gamma-hydroxybutyrate, a Class B controlled drug.
3 Criminal Procedure Act 2011, s 250(2).
The Judge’s sentence
[5]The Judge set out the circumstances of the offending:
[2] The circumstances of the offending related to a search warrant being executed at your home address that you shared with your partner. During the search the methamphetamine that I have referred to was located. In addition,
$21,095 worth of cash was located, several electronic scales, small zip lock bags, a glass bong and syringes with needles. All indicia of drug use and drug supply offending.
[3] Your cellphone was also seized and subsequently examined and as a result of the text messages on your cellphone that subsequent charges of others were laid and you have accepted responsibility for.
[6] The Judge took the methamphetamine charges as the lead charges and accepted the Crown’s submission that the starting point for them should be three years and six months’ imprisonment. This is not challenged by Mr Rubie.
[7] The Judge considered the timing of the pleas of guilty in deciding to award a discount of 20 per cent. The Judge then canvassed Mr Rubie’s personal history and gave a further discount of 10 per cent. The Judge then imposed an uplift of three months to account for Mr Rubie’s history of offending and the fact that the index offending occurred while he was subject to a sentence of intensive supervision.
The appeal
[8] Ms Wilks at the appeal hearing endorsed the written submissions filed by Ms Priest on behalf of Mr Rubie:
21.Mr Rubie is a heavy drug user and has a severe drug addiction. Mr Rubie’s drug use began following a significant neck injury when he was 12 years old. The injury put an end to his involvement with his prosocial rugby team and strained his complex relationship with his father. He described himself of fearful of his father as he was unable to meet his expectations of him. Mr Rubie describes after the accident he stopped caring, he started using cannabis at age 13, truanted from school and started using methamphetamine at age 15. Mr Rubie left school and moved out of home at age 16 renting a room from a gang member and falling into a lifestyle of antisocial peers.
22.Dr Sarah Bramhall has diagnosed Mr Rubie with a severe Stimulant Use Disorder considering his use of methamphetamine. All 11 factors of the addiction disorder were identified as relevant to Mr Rubie. Mr Rubie reported that his use of GHB was severe and interfered with his day-to-day functioning. He was unable to work. The combined
use of methamphetamine, GHB and DMT in the contributed to Mr Rubie experiencing seizures, loss of vision, auditory and visual hallucinations and delusions in the community. Despite rehabilitative efforts Mr Rubie has struggled to maintain sobriety in the community. Mr Rubie is highly influenced by peers and is drawn back to the drug using lifestyle upon release from imprisonment. Dr Bramhall notes that lapses and relapses for individuals similar to Mr Rubie are common. She describes Mr Rubie’s addition to methamphetamine and GHB as chronic.
23.Mr Rubie reports his offending took place in the context of him using 1 to 1.5 grams of methamphetamine and 60 to 80ml of GBL a day, his addiction was so prolific it impacted his psychical and psychological health. It is accepted that Mr Rubie had some financial gains from selling drugs. This allowed him to fund his own addiction and support himself given he was unable to work. Addiction has been a significant driver of Mr Rubie’s wider offending and criminal history. It is submitted that there is a clear causative link between Mr Rubie’s background and this offending.
24.Mr Rubie has undertaken efforts to address his addiction whilst on remand. He understands that it is an opportunity to be removed from his anti-social peers and he is motivated to capitalise on the rehabilitative opportunities which are offered to him during this time. Mr Rubie has the ultimate goal of attending rehab in the community, he understands that rehab is currently not an appropriate option for him but is setting goals to live a pro-social life and make his family proud. He has been successfully employed in the laundry within Mt Eden Correctional Facility and completed vocational courses such as chemical handling training in an effort to upskill and set himself up for success upon his release.
[9] On the second ground of appeal, namely that a full discount of 25 per cent should have been given for the pleas of guilty, it was pointed out that the Crown at sentencing accepted that 25 per cent was the appropriate discount. The submission is that Mr Rubie entered his pleas within a month of the Crown finalising the charges upon which Mr Rubie would have gone to trial.
Discussion
[10] I do not accept that the Judge made an error in allowing Mr Rubie a 10 per cent discount for his personal background.
[11] Mr Rubie is 38 years old. As the Judge noted, he has not engaged in employment since he was 25 years old. He is an addict, but he finances his addiction, and his lifestyle, by dealing in drugs. As Mr Rubie acknowledges, there can be no issue taken with the overall starting point.
[12] Mr Rubie’s background does not show the degree of causative linkage which can materially decrease moral culpability for offending. The Judge discussed the background appropriately:
[14] Credit will also be given for your personal background factors. While you had a stable upbringing and your physical needs were met and you did not suffer any adverse experiences during your early years, you did suffer a significant serious neck injury when you were aged 12, which meant you were unable to play contact sports again.
[15] Your father’s response to this injury was difficult for you. He appeared to find it hard to accept that you had been injured and would make comments to you such as: “Harden up.” Your father had high expectations for you and the physical limitations that you sustained as a result of that injury meant you were unable to live up to his expectations, which he was unable to adjust.
[16] You left home aged 16 and rented a room from a gang member and unsurprisingly continued associating in a more intensive way with antisocial peers. Your association with antisocial peers began much earlier, however, when you were aged 13 you began smoking cannabis and at 15 you began using methamphetamine.
[17] At the time you left home you also left school. You have limited formal education. You have worked in your early late teenage years, early twenties, but it appears you have not really worked substantially since you were aged 25. You are now 38 years old. You told Ms Bramwall that: “I use most days,” and you are always high. You live a chaotic lifestyle centred around using and selling. Ms Bramwall helpfully makes some suggestions for programmes that you can undertake while serving the inevitable prison sentence that will be imposed today.
[13] It is clear that Mr Rubie’s offending is not driven solely, or principally, by his addiction. He runs a successful drug dealing business which funds his addiction and his lifestyle. His possession of the drugs he was found with and the $21,095 in cash demonstrates that.
[14] I consider also that Mr Rubie is at a high risk of re-offending. He has a considerable record of offending and given his age and his risk, the principles of denunciation and deterrence have to be in play.
[15] I note Mr Rubie’s criminal history. On 30 September 2015, he was sentenced to two years and four months’ imprisonment on a series of drug offences throughout the period 9 February 2014 to 24 February 2015. There were four charges of supplying
methamphetamine, one charge of supplying the Class B controlled drug “Fantasy” and one charge of possessing “Fantasy” for supply.
[16] On 26 March 2018, Mr Rubie was again imprisoned on charges which included possession of “Fantasy”. Finally, on 31 May 2019, he was sentenced to two years and three months’ imprisonment on charges which included one charge of possession of methamphetamine and one charge of possessing methamphetamine for the purpose of supply.
[17] The Judge considered these factors carefully. It was open for the Judge to give a slightly greater discount than 10 per cent, but 10 per cent is a discount which is clearly within range.
[18] The same is true of the discount of 20 per cent for the pleas of guilty. Ms Priest, at the sentencing, made careful submissions as to the process which led to the pleas of guilty. The Judge took those submissions into account and, I infer, gave a greater discount than she would otherwise have given. It is irrelevant that Crown counsel was prepared to accept the 25 per cent discount.
[19] I acknowledge that the charges against Mr Rubie as originally laid were added to and subtracted from as ESR analyses were obtained and negotiations took place between Crown and defence. But the original charges included possession of a Class B controlled drug for supply and possession of methamphetamine for supply. Given the evidence obtained through the search of Mr Rubie’s home and the subsequent search of his cellphone, the Crown’s case was strong.
[20] The Judge was entitled to conclude that a discount of 20 per cent was appropriate in all the circumstances.
[21] Finally, the Judge’s uplift of three months to account for Mr Rubie’s criminal record and the fact that his offending took place while he was serving a sentence of intensive supervision could have been higher. Mr Rubie has a significant history of similar offending and he re-offended within a month or two of his sentence of intensive supervision.
[22] Stepping back and considering Mr Rubie’s offending against his personal and criminal background, I cannot conclude his sentence is manifestly excessive.
Decision
[23]The appeal is dismissed.
Brewer J
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