Russell v The King
[2025] NZHC 1405
•30 May 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2025-419-000010
[2025] NZHC 1405
BETWEEN PETER ANDREW RUSSELL
Appellant
AND
THE KING
Respondent
Hearing: 27 May 2025 Appearances:
K W Burroughs for the Appellant J Lewis for the Respondent
Judgment:
30 May 2025
JUDGMENT OF GARDINER J
[Appeal against sentence]
This judgment was delivered by me on 30 May 2025 at 2.00 pm.
Registrar/Deputy Registrar
Solicitors:
Hamilton Legal, Hamilton
K W Burroughs, Barrister, Hamilton
RUSSELL v R [2025] NZHC 1405 [30 May 2025]
Introduction
[1] Peter Russell appeals Judge K M Tan’s decision sentencing him to two years and four months’ imprisonment,1 pursuant to his guilty plea on charges of supplying methamphetamine2 and possession of a knife in a public place.3
[2] On appeal, Mr Russell says the Judge erred in characterising him as falling within the ‘significant’ role which resulted in a manifestly excessive sentence. The Crown opposes the appeal.
The offending
[3] On 4 November 2024, Mr Russell’s vehicle was stopped by police. While speaking to him, police observed a 200-mm sheathed knife laying on the passenger seat.
[4] Police executed a warrantless search for offensive weapons in the vehicle. A syringe was found in the centre console and police began searching for drugs. During the search, police also found 10 zip-lock bags of a crystalline substance, believed to be methamphetamine, as well as $2895 in cash. The bags contained approximately 34.77 g of methamphetamine and the packaging indicated sale and supply.
[5]Police also located two police scanners and two cell phones.
Decision on appeal
[6] The Judge took the methamphetamine charge as the lead offending and identified that it fell within band 2 of Zhang, due to the quantity involved.4 However, the Judge noted that culpability is not assessed with reference to quantity alone — she would have to assess whether Mr Russell’s role was in the lesser, significant, or leading category.5
1 R v Russell [2025] NZDC 2468.
2 Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty: life imprisonment.
3 Summary Offences Act 1981, s 13A. Maximum penalty: three months’ imprisonment.
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
5 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
[7] The Judge considered the submission for Mr Russell that, because his offending was solely driven by his addiction, he fell within the lesser category of culpability. The Judge recognised that addiction was certainly a factor but could not discount that commerciality was involved. As highlighted by the Crown, this was demonstrated by the scanners, cell phones, money and packages that were found in the police search.
[8] Accordingly, the Judge adopted a starting point of three years’ imprisonment, having regard to cases of a similar nature.6 An uplift of two months was then imposed for the knife charge, which resulted in an adjusted starting point of 38 months.
[9] The Judge proceeded to consider personal aggravating and mitigating factors. For Mr Russell’s previous criminal history, a 10 per cent uplift was imposed.
[10]A discount of 25 per cent was allowed for Mr Russell’s early guilty plea.
[11] The Judge was invited to allow a discount of 30 per cent to account for Mr Russell’s addiction and the underlying factors. However, she declined to do so, noting that the Court had previously taken his addiction issues into account in terms of rehabilitative aspects in the 2020 sentence. The Judge instead allowed a 10 per cent discount.
[12] Accordingly, Mr Russell received an end sentence of 28 months and two weeks’ imprisonment.
[13] The Judge also ordered destruction of the items seized during the police search, as well as forfeiture of the $2895 cash.
Approach on appeal
[14] The Court must allow the appeal if satisfied that for any reason there was an error in the sentence and a different sentence should be imposed.7 The focus is on the
6 Cavell v R [2024] NZCA 565; Leota v R [2024] NZHC 269; and James v R [2024] NZHC 1115.
7 Criminal Procedure Act 2011, s 250.
end sentence rather than the process by which it is reached.8 For the Court to interfere, the sentence must be shown to be wrong in principle or manifestly excessive.9 Ordinarily, the Court will not intervene where an end sentence is within the range that can properly be justified by accepted sentencing principles.10
The appeal
[15] For Mr Russell, Ms Burroughs submits the Judge should have placed him in the lesser category as his offending was solely or primarily motivated by addiction. Mr Russell obtained no substantial financial gain, instead receiving drugs in return. Mr Russell certainly had no control over others. If the Judge had accepted this characterisation of Mr Russell’s culpability, a starting point of two years’ imprisonment would have been more appropriate.
[16]Mr Russell does not challenge the balance of the Judge’s sentence.
[17] For the Crown, Mr Lewis submits that the Judge was correct to find Mr Russell’s role as at the lower end of significant in circumstances where he was running his own operation for financial gain. Mr Lewis says the Judge did not err in finding commerciality was indicated by the scanner in his possession which could be used to evade police; packaging, which is used to divide larger amounts of product into quantities for sale; a knife for protection; a large amount of cash; and two cell phones. Mr Russell’s history of drug-related convictions also indicated experience as a drug dealer, which further supports the Judge’s finding of a degree of sophistication in the offending. Further, Mr Russell was unemployed at the time, and it can be inferred that drug dealing was how he supported himself.
Analysis
[18] I do not consider that the Judge erred by adopting a starting point of three years. The Judge found Mr Russell to have a role that was somewhere between lesser and
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 At [30]–[35].
10 At [36].
significant in that he was motivated by his own addiction but was nevertheless operating a small-scale commercial operation. I cannot fault that assessment.
[19] While each case must be assessed on its own facts, the circumstances are very similar to those in Tapine v R.11 Similarly at a police traffic stop, Mr Tapine was found with multiple items indicative of drug dealing such as micro scales, small unused zip-lock bags, and a flick-knife. He was arrested and, upon strip-search at the station, police also found 30 g of methamphetamine and $840 in cash. Taking into account the clear element of commerciality present but also Mr Tapine’s underlying addiction issues, the Court was of the view that the offending involved elements of both the lesser and significant categories and upheld the three-year starting point.12 In doing so, the Court referred to two comparable cases involving similar quantities of methamphetamine and indicia of street-level drug operations, where starting points of three and a half to four years’ imprisonment were upheld on appeal.13
[20] I accept Mr Russell was likely motivated by his own addiction, which may indicate a lesser role. There is also no direct evidence to suggest that he was directing others. But there are factors that suggest that Mr Russell was operating his own street-level operation to generate a profit beyond what was strictly necessary to sustain his own addiction. As the Court found in Tapine, that would place him in the significant category. These factors include the quantity and value of the methamphetamine found in his possession, a police scanner, packaging which is used to divide large amounts of product into smaller quantities to sell, a knife for protection, a large amount of cash and two cell phones. The starting point was one well within the range available to the Judge — there was no error.
Result
[21]The appeal is dismissed.
Gardiner J
11 Tapine v R [2020] NZHC 977.
12 At [20].
13 Joyce v R [2020] NZCA 124 at [20]; Govender v R [2019] NZHC 3212 at [13]–[14].
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