Rusia v Police
[2022] NZHC 2171
•30 August 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000225
[2022] NZHC 2171
BETWEEN LIONEL RUSIA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 August 2022 Appearances:
C Bernhardt for Appellant L Lai for Respondent
Judgment:
30 August 2022
JUDGMENT OF VENNING J
Appeal against sentence
This judgment was delivered by me on 30 August 2022 at 10.00 am.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
Public Defence Service, Auckland
RUSIA v NEW ZEALAND POLICE [2022] NZHC 2171 [30 August 2022]
[1] On 29 June 2022 Judge J M Jelaš sentenced Lionel Rusia to 31 months’ imprisonment.1 Mr Rusia appeals against the sentence. Mr Bernhardt submitted the Judge erred by:
(a)taking an excessive starting point for the lead offence of possession of the Class B drug ephedrine for supply;
(b)failing to give a sufficient reduction to reflect totality on the second shotgun charge; and
(c)failing to give sufficient credit for mitigating factors.
[2] Overall the appellant’s case is that the end sentence should have been less than 24 months and the least restrictive sentence was one of home detention rather than imprisonment. As an alternative, in his submissions in reply, Mr Bernhardt submitted that even if the Court was not taken to the stage of accepting the sentence should have been less than 24 months then the sentence of 31 months was manifestly excessive and should be reduced.
Background
[3] On 8 October 2020, Police searched the property where Mr Rusia was living. In the course of the search the Police located:
(a)a black starter pistol;
(b)1.3 g of methamphetamine;
(c)seven glass pipes commonly used in the consumption of methamphetamine;
(d)eighty-six rounds of 12 gauge shotgun ammunition;
1 NZ Police v Rusia [2022] NZDC 12052.
(e)92 g of ephedrine with a notebook containing information relating to the price and weight of the product; and
(f)200 g of cannabis plant.
[4] That led to charges of unlawful possession of a firearm and ammunition, possession of the class B drug ephedrine for supply, possession of the class C drug cannabis for supply, and possession of methamphetamine and pipe.
[5] On 22 March 2022, while Mr Rusia was on bail for the above offending, the Police executed a warrant issued for Mr Rusia’s arrest. A search of the property where he was found led to discovery of cannabis leaf, and a shotgun cartridge. Subsequently the Police also located a Mossberg 88 shotgun. That led to a charge of unlawful possession of a firearm.
[6] On 20 April 2022, some 18 months following the initial offending and one month following the subsequent offending in relation to the possession of the Mossberg firearm, Mr Rusia pleaded guilty to all seven charges.
The District Court sentencing
[7] Judge Jelaš structured the sentence by taking the possession of the class B drug ephedrine for supply as the lead charge. She took a starting point of 20 months for that charge and then uplifted that by 14 months for the cannabis, firearms and ammunition, and the minor methamphetamine all of which related to 8 October 2020. The Judge then reduced that aggregated starting point of 34 months by just over 20 per cent for the late guilty plea and to give a small credit for rehabilitative steps taken by Mr Rusia.2
[8] The Judge then considered an uplift of 14 months should apply to the March 2022 offending, particularly as it was committed whilst on bail for the earlier offending. Applying the full 25 per cent discount for the already guilty plea would lead to an uplift of 10 months, but having regard to totality she considered that an
2 That would have taken the sentence to 27 months, although the Judge referred to it as being adjusted to 28 months.
uplift of five months was sufficient. On the Judge’s calculation that led to an adjusted end sentence of 32 months.3
[9] Ultimately the Judge structured the sentence by imposing a sentence of 26 months on the charges of possession of the class B controlled drug ephedrine, possession of ammunition, and possession of the pistol. She imposed concurrent sentences of one month each on the possession of methamphetamine, glass pipe and the cannabis charge. She then imposed a cumulative sentence of five months’ imprisonment for the more recent charge of possession of the shotgun, which resulted in the total end sentence of 31 months’ imprisonment.4
[10]The Judge then remitted Mr Rusia’s fines.
The approach to the appeal
[11] Section 250(2) of the Criminal Procedure Act 2011 confirms that the Court must allow the appeal if satisfied that if for any reason there was an error in the sentence and a different sentence should be imposed. Otherwise the Court must dismiss the appeal. The focus is on whether the end sentence is within the available range rather than the process by which it is reached.
Appellant’s arguments
[12] Mr Bernhardt submitted that, by reference to R v Wallace5 which must now be considered in light of the more recent Court of Appeal decision in Zhang v R,6 and the case of R v Wilson,7 the starting point for class B offending of 20 months was too high. In Wilson the Judge had taken a starting point of 28 months for possession of 180 g of pseudoephedrine. While Mr Bernhardt acknowledged that in his submissions in the District Court he had suggested a starting point of 18 months he nevertheless submitted
3 The discount from 14 months to 10 months was closer to 28 per cent rather than the 25 per cent maximum suggested by the Supreme Court in Hessell v R [2011] 1 NZLR 607.
4 Again, on the Judge’s earlier calculations, the total sentence would have been 27 plus five months or 32 months. The difference is in Mr Rusia’s favour.
5 R v Wallace [1999] 3 NZLR 159.
6 Zhang v R [2019] NZCA 507.
7 R v Wilson [2015] NZHC 706.
that a starting point of closer to 15 months could have been available to the Judge for the class B offending in this case.
[13] Mr Bernhardt also submitted that Mr Rusia was only holding the ephedrine for others and referred to the Judge’s response to his submission as a fairly oblique submission. I do not consider the Judge’s reference to the submission to be particularly relevant. The appellant had pleaded guilty to the charge of supply of ephedrine. He was in possession of in excess of 90 g and the drugs were found with a notebook recording prices and weights. Even if, as Mr Rusia says, he was holding the drugs for others he knew it was for the purposes of supply and was participating in and assisting the others in relation to the supply. Sentencing is not a mathematical exercise. Given the quantity of the class B drug ephedrine in this case the starting point of 20 months was well open to the Judge.
[14] Further, the uplift of 14 months for the remaining charges arising from the first occasion was also available. They included the serious charges of possession of a pistol and ammunition, possession of cannabis for supply, and the less serious charges of possession of methamphetamine.
[15] Mr Bernhardt’s next submission was that the Judge had erred in uplifting the adjusted starting point for the second charge by taking a starting point for it of 14 months. I accept that, taken on its own, a starting point of 14 months for possession of the firearm without more, and absent aggravating factors in relation to the firearm, would have been at the top end of the range for a starting point. However, in this case there were aggravating features. In particular, the offending occurred whilst Mr Rusia was on bail for previous offending. Further, that previous offending involved drug offending which was itself associated with possession of a firearm and ammunition. In those circumstances again the 14 months was well open to the Judge. I also note that by discounting it to 10 months for a guilty plea on that charge the Judge effectively gave close to 28 per cent reduction.
[16] Having regard to totality, the uplift by way of a cumulative sentence for that March 2022 offending was orthodox and the ultimate uplift of only five months might be regarded as somewhat generous. As noted, Mr Bernhardt has had the advantage of
the Judge’s miscalculation in any event when the end sentence might otherwise have been 32 months as opposed to the 31 imposed by the Judge.
[17] Mr Bernhardt next submitted that the Judge could have taken account of mitigating factors. The Judge had rejected the submission for Mr Rusia that he should be entitled to reductions for good character, remorse and the s 27 factors. As discussed with Mr Bernhardt, I do not consider in this case Mr Rusia was entitled to a good character discount. He has previous offences, including for previous drug offending. Further, the offending in this case was not one-off offending. It involved multiple offences on the first occasion and also subsequent offending whilst on bail. Mr Rusia is not entitled to a discount for good character.
[18] Next, it was open to the Judge to reject the suggestion that Mr Rusia demonstrated true remorse as discussed by the Supreme Court in Hessell.8 Like the Judge I have read Mr Rusia’s letter. It shows the possibility of some insight but it falls well short of remorse that would support a reduction in sentence.
[19] Finally, despite the matters raised by Mr Rusia’s mother in her affidavit on his behalf, I agree with the Judge’s assessment that in this case there is no nexus between Mr Rusia’s background and his offending. At the age of 41 Mr Rusia has had significant advantages that others have not had. He has had and maintains the support of his family, particularly his mother, and has had the advantages of both living within his own culture and also attending school in New Zealand in a supportive family background.
[20] Standing back and looking at the matter overall the end sentence of 31 months’ imprisonment for the offences that Mr Rusia committed in 2020 and March 2022, is well within range.
8 Hessell v R, above n 3.
Result
[21]The appeal is dismissed.
Venning J
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