Sherriff v The Queen

[2021] NZHC 3414

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000159

[2021] NZHC 3414

BETWEEN

KELSI ANNE SHERRIFF

Appellant

AND

THE QUEEN

Respondent

Hearing:	13 December 2021
Appearances:	A M S Williams and K Bucher for Appellant J H Whitcombe for Respondent
Judgment:	13 December 2021

ORAL JUDGMENT OF EATON J

Introduction

[1]    The appellant, Kelsi Sherriff, was sentenced on 24 November  2021  by  Judge Gilbert in the Christchurch District Court to 11 months’ imprisonment.1 She was sentenced on one charge of possession of methamphetamine for supply2 and one representative charge of offering to supply methamphetamine.3 She appeals against that sentence on the basis that the Judge erred by not exercising his discretion to commute the end sentence to one of home detention. That is the sole ground of this appeal.

1      R v Sherriff [2021] NZDC 23118.

2      Misuse of Drugs Act 1975, s 6(1)(f) and (2) – maximum penalty of life imprisonment.

3      Misuse of Drugs Act, s 6(1)(c) and (2)(a) – maximum penalty of life imprisonment.

SHERRIFF v R [2021] NZHC 3414 [13 December 2021]

Facts

[2]    The facts are as follows. At 9:06 pm on 1 September 2020, Ms Sherriff was parked in her vehicle at an associate’s address  in  Belfast,  here in  Christchurch.  Ms Sherriff was sitting in the driver’s seat and her associate in the front passenger seat. As the police approached the vehicle, they observed Ms Sherriff weighing methamphetamine on a set of digital scales as her associate watched. An additional two bags of methamphetamine were observed on Ms Sherriff’s lap. The police invoked search powers under the Search and Surveillance Act 2012.

[3]    Ms Sherriff became agitated and uncooperative. She did not comply with police instructions and attempted to swallow the bags of methamphetamine. Police prevented her from doing so. A subsequent search of the vehicle and of Ms Sherriff located 10.96 grams of methamphetamine along with scales, a tick list, $245 in cash, a cell phone (to which she declined to provide the PIN when requested) and a computer tablet. This gave rise to the charge of possession of methamphetamine for supply.

[4]    The police then obtained a production order for Ms Sherriff’s cell phone and, through interrogating her text messaging, they found that Ms Sherriff had made multiple offers to supply various people with methamphetamine. In total, she had offered to supply some  18 grams of methamphetamine over the  course  of about   10 weeks between late June and early September 2020.   That was approximately   20 offers.

District Court decision

[5]    On 3 September, Ms Sherriff accepted a  sentence  indication  given  by Judge Gilbert. The Judge adopted a starting point of two years and nine months’ imprisonment. That starting point reflected Ms Sherriff’s well-documented addiction to methamphetamine, which the Judge accepted was the driver of her offending. He characterised her offending as falling into the “lesser role” in  accordance  with Zhang v R and as being towards the lower end of band two, albeit not at the lowest end.4

4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

[6]    From that starting point, the Judge imposed an uplift of six months to account for Ms Sherriff’s relevant criminal history and the fact that she offended while subject to a sentence of intensive supervision. Consistent with the indication the Judge had given earlier, he gave a 20 per cent credit to reflect guilty pleas. The Judge referred to the pre-sentence report  and a letter from  Odyssey House which recognised that    Ms Sherriff had completed the Hapori Ora drug rehabilitation programme while on bail and it referred to the support that she was offered by her parents. The Judge allowed a further 15 per cent to recognise Ms Sherriff’s causative methamphetamine addiction and finally gave a discount of just over 14 months’ imprisonment to reflect the 14 months she had spent subject to the substantial confinement of electronically monitored bail (EM bail).

[7]    The Judge considered imposing a sentence of home detention but, having regard to the fact that this was Ms Sherriff’s third tranche of Class A drug dealing offending within five years and because it occurred while she was on a sentence of intensive supervision, he determined that such a sentence would not adequately meet the purposes and principles of sentencing, particularly denunciation and deterrence and so imposed a sentence of 11 months’ imprisonment.

Principles on appeal

[8]    This is an appeal as of right under s 244 of the Criminal Procedure Act 2011, and it must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of sentence and that a different sentence should be imposed.5 As the Court said in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It follows that it is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by relevant sentencing principles.7

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

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

[9]    Home detention is the focus of this appeal. Home detention is a sentence that is an alternative to a short-term sentence of imprisonment.8 The court must be satisfied that the purposes for which that sentence is being imposed cannot be achieved by any less restrictive sentence.9

[10]   An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision whether to impose a sentence of home detention.10 The Court of Appeal has said in Manikpersadh v R:11

[12] We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing … on the identification of error, if any, in the court below.”

[11]And in 2013, in Fairbrother v R, the Court of Appeal said:12

[30]      … the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[31]      Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”…

Submissions

Appellant’s submissions

[12]   Mr Williams, on behalf of Ms Sherriff, takes no issue with the starting point, and no issue with the uplifts or credits for personal aggravating and mitigating factors. As I have said, the sole ground of appeal is that the Judge erred in not exercising the discretion to commute the end sentence to one of home detention. Mr Williams has submitted that the Judge erred by placing excessive emphasis on the sentencing principles of denunciation and deterrence and, in doing so, failed to give proper weight

8      Sentencing Act 2002, s 15A(1)(b).

9      Section 15A(1)(a).

10     Doolan v R [2011] NZCA 542 at [39].

11     Manikpersadh v R [2011] NZCA 452.

12     Fairbrother v R [2013] NZCA 340.

to other relevant purposes and principles. In his submission, a sentence of imprisonment will be of no benefit given the sentencing purpose of deterrence is unlikely to be effective because Ms Sherriff’s offending was largely driven by her causative drug addiction and was low-level with limited commerciality. In oral argument he submitted that a prison sentence will undo the rehabilitative measures that have been put in place to date as there will not be any rehabilitative programmes available to Ms Sherriff over the course of a short-term sentence of imprisonment. Mr Williams argues that even if deterrence and denunciation were the primary relevant purposes, they could have been addressed by way of a sentence of home detention.

[13]   Mr Williams acknowledges the presumption in favour of imprisonment in cases involving methamphetamine offending,13 but submits that a sentence of less than imprisonment can be imposed in circumstances where an offender has accepted responsibility and has real prospects of rehabilitation.14 He has emphasised Ms Sherriff’s high level of remorse, her rehabilitative potential and her desire to address the underlying causes of her offending, which is her methamphetamine addiction. She has demonstrated that by completing the Hapori Ora course, and he submits this demonstrates that a sentence of home detention would adequately meets the purposes and principles of sentencing. He submits the Judge erred by failing to take into account Ms Sherriff’s rehabilitative potential and the availability of suitable intervention in the community.

[14]   He points to her compliance on EM bail over a lengthy period and her general personal circumstances that support a sentence of home detention. In particular, he focuses on the proposed address being that of her parents, both of whom who are present in Court today, to show their ongoing support for their daughter. That address is where she has previously completed a sentence of home detention. It is an address which has been assessed as suitable and it would, in Mr Williams’ submission, provide her with a stable and supportive environment for rehabilitation.

13     Misuse of Drugs Act, s 6(4).

14     Citing R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [43]; and Zhang v R, above n 4.

[15]   Mr Williams confronts Ms Sheriff’s relevant previous convictions for methamphetamine-related offending but submits that they were generally at the lower end of the scale and ought to be viewed in the context of her significant drug addiction.

Respondent’s submissions

[16]   Mr Whitcombe, on behalf of the respondent, submits that the Judge did not err in exercising his discretion not to impose home detention. He refers to the presumption in favour of imprisonment in s 6(4) of the Misuse of Drugs Act. In his submission, that presumption may only be displaced in relatively exceptional circumstances and, in his submission, this case is not one of those.15

[17]   He acknowledges that Ms Sherriff has engaged in treatment services prior to being sentenced but submits that the Hapori Ora programme is not as intensive as other programmes and that Ms Sherriff has previously completed that programme with what he described as little apparent progress. He emphasised that Ms Sherriff has multiple previous relevant convictions which have involved not insignificant amounts of methamphetamine. Mr Whitcombe submitted that Ms Sherriff had previously been sentenced to community-based rehabilitative sentences after which she had reoffended on both occasions.

[18]   Consequently, he submitted the Judge appropriately treated denunciation, deterrence and accountability as the dominant purposes of sentencing in this case and did not err in affording less weight to rehabilitation.

Analysis

[19]    Starting points  and discounts  reached  in determining an end sentence  of  11 months’ imprisonment are not challenged. The single issue is whether there was an error in declining to exercise the discretion not to commute that sentence to home detention.

[20]   Imprisonment is the most restrictive sentence in the hierarchy of sentencing options in the Sentencing Act 2002 (the Act). The Court of Appeal has described

15     Citing Zhang v R, above n 4, at [55].

imprisonment as “a measure of last resort”.16 Section 16(1) of the Act provides that when considering the imposition of a sentence of imprisonment, the Court “must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”. The court must not impose a sentence of imprisonment unless it is satisfied the principles and purposes of sentencing cannot otherwise be achieved.

[21]   Under s 6(4) of the Misuse of Drugs Act 1975, there is a presumption in favour of imprisonment in cases of this nature involving methamphetamine dealing. Nonetheless, the courts have recognised that the dividing line in exercising judgment to commute a sentence of imprisonment to home detention can be difficult and the principles and purposes of sentencing that must be considered sometimes point in opposite directions.17 This is one of those cases. The appellate focus in a case of this nature is on identifying error and not on revisiting the merits of the exercise of the discretion.18

[22]   In undertaking the assessment whether to commute the sentence in this case, the Judge acknowledged the need to consider Ms Sherriff’s rehabilitative prospects. He accepted that they “would likely best be served with a community-based sentence or, more particularly, a sentence of home detention”.19 But, in light of Ms Sherriff’s previous recent methamphetamine offending and the fact that the current charges occurred while she was subject to a sentence of intensive supervision, the Judge determined that her rehabilitative prospects were outweighed by the need to satisfy the principles of denunciation and deterrence, which he assessed could only be met by a sentence of imprisonment.

[23]   Whilst acknowledging the presumption in favour of a sentence of imprisonment, I am satisfied the Judge erred in his decision by placing undue emphasis on the principles of denunciation and deterrence at the expense of properly weighing Ms Sherriff’s real prospects of rehabilitation and her personal circumstances. It follows I accept Mr Williams’ submission that sentences less than imprisonment can

16     R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].

17     Palmer v R [2016] NZCA 541.

18     Fairbrother v R, above n 12, at [29]-[31].

19     R v Sherriff, above n 1, at [22].

be imposed for drug offending where the offender has genuinely accepted responsibility for that offending and has strong prospects of rehabilitation20 and I do regard Ms Sherriff as falling within that category of case.

[24]   Of course, I am conscious this is the third time in five years that she has been before the Court for the supply of Class A drugs. In January 2016, she was sentenced to 10 months’ imprisonment for the supply of methamphetamine and amphetamine. She was released and offended again in short order. She was charged with possessing methamphetamine utensils in July 2016 and November 2018 and for possessing methamphetamine in December 2017. By the time she was convicted on another charge of possessing methamphetamine for supply along with associated firearm offences in May 2020, she had taken rehabilitative steps that led to the Judge imposing a sentence of one year’s intensive supervision.

[25]   Not surprisingly, the Judge in the District Court was concerned that she had reoffended whilst serving a sentence of intensive supervision. That offending was within the first three months of the sentence, but I do not think that offending permits a conclusion that further rehabilitative sentences will be ineffective. Indeed, in my view, Ms Sherriff’s commitment and progress over the past 14 months suggests otherwise.

[26]   While the District  Court  can  be  forgiven  for  expressing  frustration  at  Ms Sherriff’s relapse into methamphetamine offending in spite of having previously being afforded the rehabilitative opportunities of non-custodial sentences, I do consider that the purposes and principles of sentencing, including denunciation and deterrence, can nevertheless be adequately served by a sentence of home detention.

[27]   In my view, it is clear that she is motivated to engage in rehabilitative interventions to address the underlying causes of her offending. As was discussed in oral argument, she spent 14 months on EM bail remanded to her parents’ address after being charged with these offences. During that period, she completed the Hapori Ora drug and alcohol treatment course, as confirmed in the Odyssey House letter of 23 November 2021. That letter outlines that on upon completing the course, Ms Sherriff

20     R v Hill, above n 14, at [43]; and Zhang v R, above n 4.

continued to engage with the services that Hapori Ora provided until the time of her sentencing and undertook one-on-one counselling sessions. It also confirms that she has made good progress and that Hapori Ora will be willing and able to continue to support her recovery.

[28]   The pre-sentence report confirms there are suitable rehabilitative interventions available to her in the community in the form of the Short Rehabilitation Programme. That report describes her compliance with EM bail as being faultless.

[29]   I accept the Judge erred in failing to have proper regard to Ms Sherriff’s rehabilitative potential and the availability of suitable continuing community intervention in assessing whether to convert the sentence to home detention.

[30]   I also take the view that Ms Sherriff’s particular personal circumstances were not adequately considered. As outlined in the pre-sentence report, her proposed address is with her parents in Kaiapoi. It is the same address where she successfully completed an extended period of EM bail and a short sentence of home detention in 2019. The report writer describes the address as suitable and Ms Sherriff’s parents as supportive of her. They have demonstrated their support by being present in Court.

[31]   I consider the address will offer her a stable home environment from which she can continue to proactively engage in the interventions available. The report writer assessed the risk of harm that Ms Sherriff poses as low, especially if she has the support network available to combat her addictions.

[32]   In my view, Ms Sherriff has demonstrated that she has clearly benefitted from an extensive period on EM bail at her parents’ address. I think it would undermine her rehabilitative pathway and her motivation in terms of addressing her addiction to now impose a custodial sentence. In my view, it is both practicable and consonant with the safety of the community for her to be subject to a sentence of home detention, rather than imprisonment.

[33]   In reaching that conclusion, I also have regard to the fact her current and previous convictions are at the lower end of the scale and relate to circumstances

where she was dealing in methamphetamine to sustain her own addiction. This, in my view, renders the principle of deterrence less relevant. In Zhang v R,21 the lead authority in sentencing in these cases, the Court of Appeal in addressing the sentencing purpose of deterrence observed that it would be wrong to wholly detach deterrence from denunciation, accountability and community protection when responding to crime as pernicious as methamphetamine dealing, but that individual deterrence is put in issue where the offender is vulnerable by reason of their own addiction.22 The Court relevantly stated:

[92] Thirdly, the principle of general deterrence is said to be based on a  theory of “rational choice”. That is, that the offender may weigh up the pros (profit and pleasure) and cons (detection and punishment) in choosing whether or not to offend. It may well be that in drug offending in particular, the perceptions of risk are relatively low, and the perceptions of reward relatively high — at least for those engaged at a significant level in the distribution chain. But the principle of rational choice is less relevant, and general deterrence is less likely, where that rational choice is constrained by mental disorder (so that the choice may not be rational at all), addiction, poverty, duress or other supervening vulnerability. The evidence before us, [the Zhang case] and some of the cases we are considering, demonstrate that these vulnerabilities are present in much methamphetamine offending. It is here, and in the case of offenders who have a very limited role in a distribution chain, that enlightened sentencing policy should focus.

[34]   That passage applies to Ms Sherriff. Her rational choice is evidently constrained by her long-standing addiction and it is clear that her offending has a limited element of commerciality.

[35]   In my view, she does have strong rehabilitative prospects, and so I am satisfied that a sentence of imprisonment would not be the least restrictive sentence to achieve the purposes and principles of sentencing. At the risk of repetition, I take the view that having completed 14 months of very restrictive EM bail without fault and whilst confronting her addiction is no mean feat, I find that recent history is evidence of her willingness and commitment to rehabilitation. She has shown that she will make good progress whilst under the constraints of electronic monitoring. That bodes well for a

21     Zhang v R, above n 4, at [85]-[92].

22 At [90].

further lengthy sentence of similar monitoring. The real test for Ms Sherriff will come when she is no longer subject to such stringent monitoring.

Conclusion

[36]   The appeal is allowed, the sentence of 11 months’ imprisonment is quashed. A conventional approach would have had an 11 months sentence of imprisonment commuted to a five and a half months’ sentence of home detention. Mr Williams invites this Court to follow the recommendation of the report writer and to impose the maximum  or  near  the  maximum  12  months  sentence.  I  certainly  agree   that Ms Sherriff’s best prospect of breaking free from the shackles of addiction is to engage in longer term treatment and to take advantage of the constraints of electronic monitoring.

[37]   In my view, the 11 months sentence could properly be described as lenient. The credit that was given for the time spent in custody on a one for one basis was generous.

[38]   There is no formulaic restriction in fixing the length of a sentence of home detention. I, therefore, substitute a sentence of nine months’ home detention. It is to be served at the Kaiapoi address recorded in the pre-sentence report and I impose that sentence on the conditions that are otherwise noted in the pre-sentence report. I add a condition, subject to anything that counsel say, that Ms Sherriff is to travel directly to the home detention address in the company of one or more of her parents within one hour of being released from prison.

...................................................

Eaton J

Solicitors:

Anselm Williams, Barrister, Christchurch Raymond Donnelly & Co, Christchurch