Scott v R

[2022] NZHC 2274

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2022-454-012

[2022] NZHC 2274

ANDREW SCOTT

v

THE QUEEN

Hearing:	7 September 2022
Counsel:	J Younger for Appellant E R Pairman for Crown
Judgment:	7 September 2022

JUDGMENT OF CHURCHMAN J

[Sentence appeal]

Introduction

[1]                   On  26  May  2022,  Andrew  Scott  (the  appellant)  was  sentenced   by Judge Edwards in the Palmerston North District Court to two years nine months’ imprisonment, on four charges to which he pleaded guilty. These charges were:

(a)supply of methamphetamine;1

(b)offering to supply methamphetamine;2

1      Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2), maximum penalty 14 years’ imprisonment.

2      Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2), maximum penalty 14 years’ imprisonment.

SCOTT v R [2022] NZHC 2274 [7 September 2022]

(c)unlawful possession of a firearm;3 and

(d)unlawful possession of ammunition.4

[2]                   Mr Scott appeals on the ground that the sentence imposed was manifestly excessive. Counsel for Mr Scott, Ms Younger, contends the Judge erred by adopting a starting point for the sentence that was too high and failed to provide an adequate discount for mitigating factors.

[3]                   The Crown opposes the appeal, alleging that the starting point was within the range available to the sentencing Judge, and that the discounts provided were adequate in the circumstances.

[4]The issues in this appeal are:

(a)whether the starting point adopted was within the appropriate range available; and

(b)whether the sentencing Judge adequately and correctly accounted for Mr Scott’s personal mitigating factors.

Background

[5]                   On 28 September 2021, the police obtained a Production Order for Mr Scott’s cell phone, on which they found evidence of the supply of 64.75 grams of methamphetamine over the period between 1 September 2021 and 24 September 2021. The total value of methamphetamine supplied was $28,500. The police also found evidence on Mr Scott’s cell phone of offers to supply a further 40 grams of methamphetamine, with an approximate value of $14,900.

[6]                   On 5 October 2021, the police executed a search warrant at Mr Scott’s home address in Palmerston North. Located in Mr Scott’s car was a ‘cut down’ firearm and 97 rounds of .22 calibre ammunition.

3      Arms Act 1983, s 50(1)(a), maximum penalty three years’ imprisonment or $4,000 fine.

4      Arms Act 1983, s 45(1), maximum penalty four years’ imprisonment or $5,000 fine.

[7]                   The pre-sentence report assessed Mr Scott as having a low-medium risk of reoffending, and a medium risk of harm to others. The report considered that the current offending marked a significant increase in the severity of Mr Scott’s offending, given that his previous criminal history consisted only of a single excess breath alcohol charge, and a licencing conviction. The report recommended a sentence of home detention, to provide the appellant the opportunity to address his offending, while also allowing him to continue his responsibilities as a father and grandfather.

[8]                   Mr Scott has been involved in an ‘on and off’ relationship with his partner for approximately 22 years, and they have six children together. His partner deposed to the report-writer that a sentence of imprisonment would increase the difficulty of managing their household, where one of their grandchildren also resides. She also provided a letter attesting to Mr Scott’s strong commitment as a father and grandfather, and the effect that his imprisonment would have upon their family.

[9]                   Mr Scott told the report-writer that he has sold methamphetamine for approximately 12 years, and that he has recreationally used methamphetamine and cannabis. He admitted that he obtained the gun for his own protection, following an episode shortly prior to his arrest where he was ‘stood up for drugs’ and had a gun pointed at his head. The report-writer considered that he showed little to no remorse for his actions.

[10]               The address proposed for any electronically monitored sentence was Mr Scott’s family address in Palmerston North, which was assessed as suitable. The other occupiers of the address are his partner, their six children and one grandchild. Oranga Tamariki provided a response to this proposal, stating:

There would be concerns for the children at this address with [the appellant] completing his sentence there. [The appellant] has current convictions for the concerning combination of serious drug dealing and firearms offences, causing concern about the behaviours and associations he may expose the children in this home to, especially if he were there with the stress and restrictions of sentencing in place. These children are more vulnerable to this risk given the young ages of some, and given the nature of previous concerns reported for them.

[11]               The s 27 report, written by Dr Jarrod Gilbert, provides that Mr Scott is a 39-year-old Māori man, with no knowledge of his iwi or whakapapa. He was adopted by a Pākehā family shortly following his birth in Masterton, and knows very little

about his biological family, apart from the fact that his parents were school-age when he was born.

[12]               Mr Scott has three adopted siblings, and remains close with his sister. His adopted parents are Barry and Christine Scott, with which he said that he had a relatively stable and  happy childhood.  There  were  no drugs in  their household.  Mr Scott did not enjoy the academic aspect of education, reported being bullied, and was expelled from Palmerston Boys’ High School after a fight with another student. He later left Awatapu College aged 16, having failed school certificate. He reports being physically and racially abused while in secondary education. He also has a hearing impediment.

[13]               Mr Scott began to drink alcohol and smoke cannabis around the age of 15, and developed a habit of smoking cannabis daily. He began to use methamphetamine socially in his early 20s, and by his late 20s he was selling it to fund his habit. By this time, he had moved to live with his partner, and they began to have children together. They now have six children between the ages of four and 18. Both his sister and partner described Mr Scott as a loving and committed father.

[14]               Mr Scott has maintained regular employment throughout his life, working at a sawmill and then as a production welder. He has expressed a desire to get back into employment, and has started work as a farm hand. He expressed the view that his use of methamphetamine gave him a “drive” to do things, like building motorbike engines, but that he has never had to resort to other criminal activity to fund his addiction.

[15]The s 27 report states that:

There are relatively few factors in Mr Scott’s background that appear likely to have influenced his offending. Nevertheless, there are two elements – the bullying that he experienced during his youth, and his long history of substance use – which can be connected with research and [the] wider context in ways that may relate to his offending.

…

The experience of bullying during childhood and youth has been associated with an increased risk for negative behavioural and health outcomes in adulthood including: depression, anxiety, suicidal ideation and attempts, substance use, involvement in violence, and criminality.

[16]               As to the issue of generational trauma within Mr Scott’s own life, the report states:

Many of the causes of these issues lie in concerns around the entrenched and intergenerational marginalisation that Māori in New Zealand face as a result of historical factors that have led to overrepresentation in numerous negative statistics.

It must be noted that Mr Scott’s connection to these generational concerns is less clear however, given that he was adopted, but as can be seen in the racial abuse that he reports suffering at school, this does not entirely separate him from minority disadvantage.

[17]               The report describes the correlation between methamphetamine addiction and criminal behaviour, and suggests that Mr Scott would benefit from the opportunity to engage with substance rehabilitation services and support. However, he was removed from a community drug-rehabilitation programme after failing a cannabis test. The report makes no recommendation as to sentence.

[18]               The Judge adopted the methamphetamine charges as lead charges, and then imposed an uplift for the firearm and ammunition charges. Using the guidelines provided by the Court of Appeal in Zhang v R, the Judge identified Mr Scott’s offending as falling with band two, which provides for a starting point of between two years to nine years’ imprisonment.5

[19]               The Judge considered that Mr Scott’s offending did not fit entirely within a lesser category of offending, relying on Joyce v R, in which an ‘independent operator’ chose to sell methamphetamine to finance his own habit, and meet his living costs.6 The Judge considered that there was no evidence that Mr Scott’s addiction impaired his ability to make rational choices, which would otherwise diminish his culpability.

[20]               As to the nature of the offending, the Judge considered that Mr Scott possessed and sold a reasonably significant quantity of methamphetamine, which was likely to have generated considerable financial gain. In reliance on Joyce, the Judge adopted a starting point of four years’ imprisonment.  In that case, Mr Joyce possessed  over  28 grams of methamphetamine, $13,000 in cash, and other items that indicated he was dealing commercially.

5      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 658.

6      Joyce v R [2020] NZCA 124.

[21]               The Judge then imposed an uplift of 12 months for the possession of a firearm and a considerable quantity of ammunition. No uplift for previous offending was imposed, given Mr Scott’s limited criminal history. The Judge gave a 25 per cent guilty plea discount. However, despite Mr Scott’s limited criminal history, the Judge made no allowance for previous good character, given Mr Scott’s admissions both in the pre-sentence report and s 27 report that he had been dealing methamphetamine for 12 years or more.

[22]               The Judge discussed the inter-relationship between Mr Scott’s addiction, the  s 27 report factors, and the extent of Mr Scott’s dealing activities. The Judge considered that Mr Scott was dealing at a level that far exceeded his own habits, was responsible for a large quantity of methamphetamine being introduced into the community, and that he showed no remorse for the social harm that this caused. The Judge acknowledged the need to hold Mr Scott accountable and to enable his rehabilitation. She then allowed a further 20 per cent discount for the s 27 factors and Mr Scott’s addiction, balanced against Mr Scott’s dealing exceeding his personal habit.

[23]The final sentence imposed was two years and nine months’ imprisonment.

[24]               Ms Younger, counsel for Mr Scott, submits that the sentencing Judge made errors and that the final sentence imposed was manifestly excessive. Ms Younger submits that the end sentence should have been one of 24 months’ imprisonment or less, because:

(a)the overall starting point of five years was too high when compared to other cases;

(b)the discounts applied for mitigating features were “wholly inadequate”

– because:

(i)the Judge erred in double counting the fact that Mr Scott dealt drugs to fund both his own habit and living expenses, by considering it as a mitigating factor when setting the starting point, but also as an aggravating factor in the context of discounts;

(ii)no discount was provided for Mr Scott having no previous relevant convictions, in reliance on an unsubstantiated admission as to Mr Scott’s drug dealing history, which Mr Scott now denies and which she said that, at sentencing, she advised the Court that Mr Scott disputed the accuracy of;

(iii)the discount provided for s 27 factors was inadequate;

(iv)the discount provided for Mr Scott’s attempts at rehabilitation was inadequate; and

(v)when considering the totality of the sentence for a ‘virtual first offender’ with hearing difficulties, the total discount package was inadequate.

[25]               Ms Younger submits that Mr Scott only sold methamphetamine to a few people who were his friends, and that therefore the social harm associated with his offending is not as high as considered by the sentencing Judge. She submits that an overall starting point of three and a half years’ imprisonment would be appropriate in the circumstances.

[26]               Ms Younger submits that the starting point for the drug charges should have been three years, given Mr Scott had a ‘lesser’ role, than compared with the defendant described in Joyce. She submits that an uplift for the firearms charge in the range of six months would be appropriate.

[27]               As to discounts, Ms Younger submits  that  the  25  per  cent  discount  for  Mr Scott’s guilty plea was appropriate, but that some discount should have been awarded for Mr Scott’s previous good character, and lack of similar convictions for drug offending. It is alleged that a greater discount was warranted for the combination of the s 27 factors relating to his background, addiction, and rehabilitative prospects. She seeks a sentence that is able to be commuted to home detention.

[28]               Ms Pairman, for the Crown, submits the District Court correctly applied the guideline case of Zhang and arrived at a starting point which was appropriate and within the range available. The Crown submits the sentencing Judge correctly

considered and applied the available discounts (for a total of 45 per cent allowance) which led to an end sentence which is not manifestly excessive. If the allowances proposed by Mr Scott are granted, the Crown submits that this would result in a manifestly inadequate sentence, given the amount of methamphetamine that Mr Scott was supplying.

[29]               As to the starting point, the Crown submits that four years’ imprisonment is consistent with the approach set out in Zhang, and considers that the cases relied on by Ms Younger do not support Mr Scott’s appeal, as the amount of methamphetamine involved was lower in those cases. The Crown submits that the uplift of 12 months for the firearms charges was appropriate and consistent with authority from the Court of Appeal. As to the discounts for mitigating factors, the Crown submits that the reductions provided by the sentencing Judge were appropriate, and that the Judge has not double-counted any factors. The Judge made an evaluative judgment that she was entitled to make on the evidence before the Court.

The law

[30]               An appeal against sentence is an appeal against a discretion. Under s 250 of the Criminal Procedure Act 2011, the appeal Court must allow the appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[31]               Despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals. An appeal Court cannot “tinker” with the end sentence if the end sentence is within range.7 The focus is on the end sentence and not the process adopted to reach that end sentence.

[32]               In Moses, the Court of Appeal introduced a general two-step approach to sentencing, in which any guilty plea discount is fixed at the second step.8 The first

7      Ripia v R [2011] NZCA 101 at [15].

8      Moses v R [2020] NZCA 296.

step in Moses requires the Court to calculate the starting point incorporating the aggravating and mitigating factors of the offence, considering consistency with similar offending. At the second step the starting point is then adjusted to incorporate the aggravating and mitigating factors personal to the offender, including any guilty plea discount. The end sentence should reflect the totality of the offending and be the least restrictive outcome that is appropriate in the circumstances.

[33]               The Judge correctly identified that Mr Scott’s offending falls within band two of the categories outlined by the Court of Appeal in Zhang.9 The total amount of methamphetamine sold or offered was 104.75 grams. The guideline for a starting point for offending of this nature is between two and nine years’ imprisonment.

[34]               Culpability in the context of methamphetamine supply is assessed by reference to the quantity and the nature of the offender’s role in any relevant supply chain – that is, whether the offender had a ‘lesser’, ‘significant’ or ‘leading’ role.10 The Judge correctly identified that the nature of Mr Scott’s role was mixed, sharing characteristics of a ‘lesser’ role but also of a ‘significant’ role. Mr Scott was a sole operator, supplying to fund his own addiction, but also to supplement his income. I agree that while the operation was relatively small, Mr Scott was not motivated solely by his own addiction, and he had acquired significant financial benefit.

[35]The Judge aptly compared Mr Scott’s position to that of Mr Joyce in Joyce v R

– who was similarly an “independent retail operator who chose to sell methamphetamine both to finance his drug habit and to meet his living costs”.11 Like Mr Joyce, there was no evidence to suggest that Mr Scott’s addiction impaired his ability to make rational choices, a factor relevant to assessing overall culpability.12 While both Mr Scott and Mr Joyce ran similar operations, the evidence relating to Mr Scott’s operation suggests that he was supplying and offering to supply at a greater level than Mr Joyce. In those circumstances, the adoption of a starting point of four years imprisonment for Mr Scott, by reference to Joyce would appear to be entirely appropriate, having regard to the social harm that is caused through the distribution of

9 At [125].

10     Zhang, above n 5, at [104] and [126]; see also Sentencing Council (UK) Drug Offences: Definitive Guideline (2012).

11 Above n 6, at [20].

12 At [20].

amphetamines  in  the  community.     While there was some causal link  between  Mr Scott’s addiction and his offending, he was also motivated by financial gain.

[36]               Counsel for Mr Scott directly challenged the applicability of Joyce, and invited the Court to apply of the cases of Pona and Gotty. In my view, neither of these cases are directly comparable. In Pona, following a disputed facts hearing, Mr Pona was eventually sentenced for the supply of a far lesser quantity of methamphetamine than is involved in the present case. Mr Pona was sentenced for the supply of seven grams of methamphetamine, and for offering to supply a further 17.5 grams.

[37]               In Gotty, Mr Gotty was charged with methamphetamine and cannabis offending, as well as unlawful possession of ammunition. He supplied 2.95 grams of methamphetamine on eight separate occasions, and offered to supply a further

38.8 grams over 37 separate occasions. For the drug offending, the Judge adopted a starting point of three years, uplifting by two months to account for the unlawful possession of ammunition. Again, Mr Gotty was charged in relation to offending relative to a lesser amount of methamphetamine than Mr Scott.

[38]               In light of the decisions of Joyce, Pona, and Gotty, I do not consider that the Judge erred in setting a starting point for the drug offending of four years’ imprisonment. The nature of Mr Scott’s operation was similar to Mr Joyce’ operation, and he was selling quantities greater than Mr Joyce, Mr Pona and Mr Gotty. The authorities provide that a starting point of four years’ imprisonment was within the range available to the Judge.

[39]In respect of the Arms Act charges, the Judge stated:

[16]      The next issue is the uplift for the firearm and ammunition. Your explanation for possessing both was that you had been involved in a disagreement or misunderstanding connected to your dealing activity and considered you needed it for your protection.

[17]      The senior courts have been very clear, Mr Scott, that deterrent sentences are required where unlawful possession of firearms and ammunition are associated with drug dealing activity. This is because of the danger posed to the community by such firearms, particularly those for which there is no lawful purpose such as the cut-down firearm in your case.

[18]      Ms Younger has referred to cases where uplifts of less than 12 months have been taken and cases where uplifts in that region have been taken where more than one firearm was involved, or in one case explosives in addition to a firearm.

[19]      However, I consider that an uplift of 12 months on a totality basis is the minimum appropriate for your possession of such a dangerous firearm, along with a considerable quantity of ammunition. This takes the overall starting point to five years’ imprisonment.

[40]               Ms Younger submitted that there was no evidence to suggest that the sawn-off rifle in Mr Scott’s car was loaded, that the weapons found in Pona were more lethal, but only attracted an uplift of nine months’ imprisonment.

[41]               Counsel for the Crown referred to the cases of Fonotia, Haggie, and Mills. Those are all Court of Appeal cases, as is Joyce. As submitted by counsel, those cases illustrate that the Court of Appeal has consistently upheld uplifts of between 12 and

18 months’ imprisonment where drug offending is combined with firearms offending.13 Accordingly, the Judge did not err in imposing an uplift of 12 months’ imprisonment for the firearms charges.

[42]               The 25 per cent guilty plea discount was accepted by both counsel to be appropriate in the circumstances. I agree.

[43]               Counsel for the Crown submits that the further 20 per cent awarded for the combination of s 27 factors, and Mr Scott’s personal circumstances was all that was appropriate. Ms Younger submits that the Judge erred in not discounting for previous good character, rehabilitation prospects, and his hearing impediment. She also alleges that the Judge incorrectly considered the nature of Mr Scott’s offending at both stages of the sentencing process.

[44]               There is no doubt that Mr Scott’s background and upbringing involved some difficulty. Following adoption, it appears that the connection with his whakapapa and cultural identity was severed. This itself is a form of dispossession that the Court may take into account.14 It is not clear how the hearing impediment could be causally related to the offending but it is a disability. Mr Scott has addiction issues, and experienced physical and racial abuse as a young person. A potential causal link can be identified between those factors and his offending. In my view, the Judge adequately accounted for the factors set out in the s 27 and pre-sentence reports,

13     See also Joyce, above n 6, at [24].

14 Carr v R [2020] NZCA 357 at [60].

including Mr Scott’s addiction and hearing issues, through the award of a 20 per cent discount for personal factors.

[45]               The cases cited by Ms Younger involve similar discounts for offending that is arguably more serious, by offenders whose personal and cultural background was marked by systemic deprivation with a continuing impact on their culpability.15 With the exception of Solicitor-General v Heta, they do not support her submission for a greater discount for personal factors. The extent of the discount awarded to Mr Scott is consistent with the Court of Appeal’s approach generally to discounting for personal factors arising out of a s 27 report.16 I am not convinced the Judge erred in this respect.

[46]               The Judge did assess the fact that Mr Scott’s supply of methamphetamine went beyond what was necessary to fund his own addiction at both stages of the process. However, those considerations went to two different issues, being:

(a)to the overall seriousness of the offending at the first stage; and

(b)the degree to which the offending was driven by Mr Scott’s addiction, at the second stage.

[47]               In other words, the nature of his supply was relevant to assess the offending generally, but also, given his addiction, it was relevant to any available discount for personal circumstances. The Judge did not err on this point.

[48]               As to any available discount for Mr Scott’s previous good character, the Judge stated:17

Normally someone with your limited history at the age of 39 would warrant consideration for an allowance for previous good character. However, the difficulty with that in your case is that in very frank interviews with both the pre-sentence report writer and the writer of the s 27 report you acknowledged that your drug dealing has continued for at least 12 years, possibly longer. That negates any credit for absence of previous offending.

15     R v Kolofale [2022] NZCA 74; Waikato-Tuhega v R [2021] NZCA 503; Harris v R [2021] NZCA 143; Keil v R [2017] NZCA 563.

16     See, for example, Waho  v R [2020] NZCA 526 at [33]; Court-Clausen v R  [2020] NZCA 488 at [40]; Woodstock v R [2020] NZCA 472 at [35]; and Carr v R [2020] NZCA 357 at [67] and [71].

17 At [22].

[49]               On appeal, Mr Scott has alleged that he did not say anything to that effect in either of the interviews for each report. As noted above, Ms Younger who appeared for Mr Scott at sentencing, confirms that the accuracy of the recorded comments in the pre-sentence report was challenged before the sentencing Judge. She also submitted that as the s 27 report writer was provided with a copy of the pre-sentence report, that is likely to have been where he got this information from.

[50]               Ms Pairman did not appear at sentencing and was not in a position to dispute Ms Younger’s account as to what was told to the Judge at sentencing.

[51]               In the circumstances where the accuracy of the recording of a material comment in a report is challenged, the appropriate course to follow would be to stand the matter down for something in the nature of a disputed facts hearing to occur. In the absence of such a procedure being followed, it is difficult for the Court on appeal to place much weight on an issue of fact that is disputed.

[52]               An issue of principle also arises as to whether it is appropriate for the Court to use admissions made to a pre-sentence report writer to deny any discount for good character. Adopting such a course is likely to have the effect of defendants awaiting sentencing being less than frank in their interactions with such report writers. That may make such reports less helpful to the Court than they may otherwise have been. That is unlikely to be in the overall interests of justice.

[53]               The Court of Appeal has stated, “it is not appropriate to exclude good character as a mitigating factor merely because the offender has committed the offences for which sentence is to be imposed”.18 Added to this point, is the context within which  a pre-sentence report or s 27 report is provided. Sentencing, by definition, takes place after a defendant’s guilt has been accepted via pleading in accordance with a summary of facts, or determined through evidence assessed at trial. The commentary, particularly in relation to s 27 reports, outlines that:

(a)where the contents of a s 27 report are in issue at sentencing, the onus of proof lies on the offender to establish an identifiable nexus between the contents of the report and the offending;19 and

18     R v Webb CA13/04, 17 June 2004, ay [71].

19     Hart-Dehar v R [2021] NZHC 2684 at [44].

(b)the gravity of the offending may temper the extent of any discount for s 27 considerations, but it is not a basis for concluding there should be no allowance.20

[54]               Were the Court able to rely such admissions made to a report writer to deny a discount for good character, it would put a defendant in the difficult position of having to illustrate how their background influences their culpability, without risking further incrimination, at a stage of the process following the determination of their guilt. As already noted, this is likely to decrease the efficacy of such reports. A s 27 or pre- sentence report is helpful for the purpose of contextualising offending within the life of a defendant, so the Court may more meaningfully assess their culpability. Their purpose is not to provide an opportunity for a defendant to further incriminate themselves.

[55]               I think that the better approach in the present case, is to put aside the comments allegedly made to the report writer and consider what evidence there is about the defendant’s good character. The reality is that Mr Scott has no previous convictions for drug offending and, compared to a great many of the defendants coming before the Court for serious drug offending, very few convictions with only two driving related offences being recorded. An absence of previous convictions is evidence of prior good character and can justify some recognition at the time of sentencing.21

[56]               The Court also has had the benefit of reading letters provided by his partner and his sister, as to Mr Scott’s strong commitment to being a father to his six children. That is a matter I am required to take into account.22 That distinguishes him from many who appear before the Court although it must be tempered by the fact that, by engaging in drug use and drug dealing, Mr Scott is a poor role model for his children. These facts are relevant to the prospects of rehabilitation. I therefore conclude that Mr Scott is entitled to a modest credit for character issues. I fix that at five per cent.

[57]               Finally, the Judge did not address a standalone discount for Mr Scott’s efforts to rehabilitate, particularly his abstinence from using methamphetamine since his

20     Carr v R [2020] NZCA 357 at [65].

21     Taylor v R [2017] NZCA 574 at [25]; citing R v Hockley [2009] NZCA 74 at [30]; Manawaiti v R

[2013] NZCA 88 at [13] and [20]; and Quinlan v R [2013] NZCA 634 at [37].

22 United Nations Convention on the Rights of the Child 1577 UNTS 3 at art 3(1); see also Sentencing Act 2002, s 8(i) and Campbell v R [2020] NZCA 356 at [45].

arrest, instead including that factor within the 20 per cent discount for personal factors. In my view, the Judge did not err on this point. In the present case, the Judge appropriately gave precedence to the principles of accountability and deterrence.

[58]               I allow the appeal, substituting the sentence of two years nine months’ imprisonment with a sentence of two and a half years’ imprisonment, with concurrent sentences of 18 months for offering to supply charge, and 12 months for each firearms charge. I am satisfied that that adequately reflects the totality of the offending, and is the least restrictive outcome available in the circumstances.

Churchman J

Solicitors:

Crown Solicitor, Palmerston North for Crown Barrister:

J Younger, Palmerston North for Appellant