Smith v Police

[2018] NZHC 878

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-044-4531

[2018] NZHC 878

BETWEEN

ELIAS VALENTIN SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	1 May 2018
Appearances:	M Dyhrberg QC and H G de Groot for Appellant D R Green for Respondent
Judgment:	1 May 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

M Dyhrberg QC, Auckland H G de Groot, Auckland Meredith Connell, Auckland

SMITH v NEW ZEALAND POLICE [2018] NZHC 878 [1 May 2018]

Introduction

[1]    On 13 April 2018, Elias Valentin Smith was convicted and sentenced on 14 charges under the Misuse of Drugs Act 1975 (the “Act”). Judge Collins imposed two years and three months’ imprisonment for these charges, from a starting point of six years’ imprisonment.1

[2]    Mr Smith appeals his sentence on grounds it is manifestly excessive. In particular:

(a)the starting point was too high because the Judge wrongly:

(i)combined two charges of attempting to import LSD as the lead offending;

(ii)relied on inappropriate case authorities; and

(iii)imposed a sentence disproportionate to that received by Mr Smith’s co-offender; and

(b)discounts allowed for his rehabilitation and autism spectrum disorder were too low, and the Judge failed to allow any discount for remorse or good character.

Mr Smith’s counsel, Marie Dyhrberg QC, submits the Court should properly impose a sentence of under two years’ imprisonment, which should then be commuted into a sentence of home detention – the outcome she had urged on Judge Collins. She expressly accepts the Judge’s 12-month uplift for other offending, and his two year discount for youth “were within the bounds of discretion”.

Factual background

[3]    There is concern about importation into New Zealand of illegal drugs acquired through the ‘dark web’, with payment made through cryptocurrency such as Bitcoin. Mr Smith became involved in this emerging method of drug importation at the age of

1      R v Smith [2018] NZDC 7141 [District Court decision].

17, while completing his first year of university. He soon invited a fellow student to join him, Nicholas Barker, by receiving drug importations at Mr Barker’s home.2 Mr Barker has pleaded guilty to his involvement in these matters. He was sentenced to 10 months’ home detention, and 100 hours of community work.

[4]    On 20 March 2017, Mr Smith pleaded guilty to 14 charges which fall into three categories of offending:3

(a)attempt offending:

(i)two charges of attempting to import 80 tabs and 760 tabs, respectively, of the class A drug lysergic acid diethylamide (LSD), which was taken as the lead offending;

(ii)attempting to import an unknown amount of the class B drug fentanyl;

(iii)attempting to import 7 grams of the Class B drug amphetamine;

(b)supplying and offering to supply offending:

(i)supplying LSD (one tab);

(ii)offering to supply LSD (amount unspecified);

(iii)supplying      the      Class      A     drug      2,5-dimethoxy-4- methlamphetamine (two doses);

(iv)offering     to     supply     2,5-dimethoxy-4-methlamphetamine (amount unspecified);

(v)supplying the class B drug MDMA (two doses);

(vi)offering to supply the class B drug MDMA (amount unknown); and

(vii)offering to sell the Class C drug 3-methoxy PCP (amount unspecified); and

2      In exchange for payment and discounts on bulk drug sales.

3      All charges are under the Misuse of Drugs Act 1975 [“Act”], ss 6 and 7; and (in the attempting offending) the Crimes Act 1961, ss 72(1) and 311(1).

(c)possession offending:

(i)possession of the class A drug methamphetamine (0.1 grams);

(ii)possession of the class C drug 3-methoxy PCP (amount unknown); and

(iii)possession of the class C drug clonazepam (7.6 grams).

[5]    The ‘attempt charges’ arise out of interceptions of mail at the International Mail Centre at the Auckland International Airport. On 7 October 2015, mail addressed to Mr Smith’s home address was found to contain 80 tabs of LSD. Another item intercepted on 2 June 2016, this time addressed to Mr Barker, was found to contain the amphetamine. Further LSD was intercepted and seized by Customs on 19 October 2016. Because the drugs were seized at the airport – technically, before entering New Zealand – Mr Smith was only charged with attempted, rather than actual, importation of those drugs.

[6]    The police conducted a search at Mr Smith’s parents’ home on 10 November 2016. They located, among other items, his cell-phone, and various drugs giving rise to the three ‘possession charges’. His cellphone was seized, and the text messages analysed. These detailed communications relating to the supply of multiple kinds of drugs formed the basis of the ‘supply and offer’ charges.

District Court Decision

[7]    Judge Collins’ sentencing notes begin by detailing the facts of the offending, culminating in his summary of the offending:4

You were offering a wide range of drugs, you had a [prescribed] price for them, you offered people discount effectively for bulk. In short, Mr Smith, at your young age you were dealing in Class A drugs and you were [a] drug dealer.

[8]    His Honour took as the lead offending the two charges of attempting to import LSD, intending to combine the two amounts (80 tabs and 760 tabs) but miscalculating

4 At [13].

the total as 860 tabs.5 In imposing a starting point of six years’ imprisonment, the Judge appears to have taken into account:

(a)the pre-sentence report, and the “comprehensive” reports of Dr Sakdalan, Dr Purcell, and Dr Sullivan, each of whom provided specialist advice as to Mr Smith’s mental health;6

(b)consistency in sentencing for “serious Class A drug offending”,7 and specifically the comparison of Mr Smith’s offending with that of his co- offender, Mr Barker:8

His Honour Judge Hinton took a starting point of four and a half years’ imprisonment. It is clear from the summary I have read that your involvement was significantly more serious than his, in fact I regard an aggravating factor as far as you are concerned, that you enlisted him in this criminal enterprise.

(c)enlisting Mr Barker’s assistance and the premeditated nature of the offending as aggravating factors, the Judge noting “[i]t was sustained over many months, there was a degree of sophistication in it as well”;9 and

(d)the numerous authorities referred to the Court by both counsel, although the only case specifically referred to is the District Court’s decision in R v Faulkner [2018] DCR 164, which the Judge described as “the most helpful in terms of guidance today”, and apprehended Judge Hinton, who sentenced Mr Barker, took a similar view.10

From this starting point, the Judge adopted a one year uplift for the balance of the offending, which the Judge described as both “fair and modest”,11 to arrive at a starting point of seven years’ imprisonment.12

5 At [18].

6 At [14].

7 At [18].

8 At [15].

9      At [15]-[16].

10     At [16]-[17].

11     At [17]-[18].

12 At [19].

[9]    His Honour then applied what he considered to be “the most generous” discounts available, notwithstanding his reservations about just how causative of offending some of those mitigating factors might be.13 He applied discounts of:14

(a)two years for youth, which he again described as “generous”;

(b)one year for Mr Smith’s personal circumstances, namely his autism spectrum disorder/Asperger syndrome diagnosis;

(c)one year for his efforts at rehabilitation; and

(d)the maximum 25 per cent for early guilty pleas.

This brought the effective end sentence to two years and three months’ imprisonment, the Judge observing “as hard as I might try and find on a principle[d] basis Mr Smith, what might be further credits, I simply cannot do that”.

[10]   On all the other charges of importing or dealing in Class A and Class B drugs, the Judge imposed concurrent terms of 12 months’ imprisonment. Two months’ imprisonment was imposed for possession of methamphetamine, and Mr Smith was convicted and discharged on the charges for possession of Class C controlled drugs.

Grounds of appeal

[11]I have already outlined the basis for Mr Smith’s appeal.15

[12]   More generally, Ms Dhyrberg complains of the Judge’s “striking lack of reasoning in fixing the starting point and awarding discounts”, although she disclaims reliance on the “general requirement to give reasons” in s 31 of the Sentencing Act 2002 as an appeal ground. Section 31(2) provides reasons are to be given “with whatever level of particularity is appropriate to the particular case”. I do not accept the Judge erred in giving insufficient reasons – it suffices he spelled out his arithmetic.16 But I accept counsel’s broader point, at least to some extent, that:17

13 At [19].

14 At [20].

15     At [2] above.

16     R v S (CA64/06) [2007] NZCA 243 at [79],

17     Adams on Criminal Law (loose-leaf ed.) SAB5.02

Appellate courts are more likely to make modest adjustments where the sentencing judge in the first instance has failed to articulate his or her methodology.

Appeal against sentence

[13]   Section 250(2) of the Criminal Procedure Act 2011 requires me to allow the appeal if I am satisfied:

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

(b)a different sentence should be imposed.

In any other case, I must dismiss the appeal.18

[14]   The Court of Appeal has confirmed s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.19 Despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.20 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.21

Starting point

—choosing the lead offending

[15]   Mr Smith’s most serious offending was attempting to import 760 tabs of LSD on 19 October 2016 to Mr Barker’s address; his next most serious was his attempted importation of a lesser amount a year earlier, then of 80 tabs. The Judge combined these two offences into a “global” attempt offence, setting a six year starting point. Ms Dyhrberg says that errs, preferring the orthodoxy of a single lead offence to which uplifts are applied for other offending.

18     Criminal Procedure Act 2011, s 250(3).

19     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

20     At [33], [35].

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

[16]   The Crown points to one case – R v Eardley-Wilmot – in which Dobson J treated disparate drug offending in the course of a year as “effectively the same transaction”, and concurrently the ‘principal offence’ for the setting of a starting point.22 The joined-up offending there was of a charge of conspiracy to import class A drugs and a charge of importation of class B drugs. Inferentially, the Court of Appeal acknowledged the approach was available.23

[17]   Ms Dyhrberg says, if there is to be combination in lead offending, it should reflect the uplift that would apply from the more orthodox approach, rather than to reflect a single offence of the combined severity. She points out the 18-month disparity between Mr Smith’s six and Mr Barker’s four and a half year starting points, Mr Barker not being involved in the first attempt to import. She says the starting point could not have been uplifted by 18 months if the two offences were disaggregated, but rather only by two months. Particularly given the narrowness of the margin by which Mr Smith failed to qualify for home detention, his counsel says this amounts to a manifestly excessive sentence. I deal with the issue as a matter of consistency in sentencing, to which I now turn.

—consistency in sentencing

[18]   The Judge remarked the starting point needed to be one of “six years’ imprisonment to maintain any sort of consistency by reference to the other cases”. Ms Dyhrberg now suggests on a fair consideration of the most relevant authorities the Court could go no higher than a starting point of four years (although her submission to Judge Collins was of a starting point of five to five and half years).

[19]   Judge Collins read and considered all the cases referred to the Court, but only Faulkner is given explicit mention. His Honour was fortified in his reliance on this case by his comprehension Judge Hinton took the same view of its instructiveness, although Judge Hinton makes no express mention of the case.

22     R v Eardley-Wilmot HC Wellington CRI-2008-085-684, 22 February 2008 at [23].

23     R v Eardley-Wilmot [2008] NZCA 318 at [8] and [16].

[20]   Given the range of relevant variables in Class A drug offending, it may be difficult to find close comparators. It is accepted manufacture and importation are more serious offending than possession for supply or supplying.24

[21]   Ms Dyhrberg seeks further to distinguish LSD and other hallucinogenic offending from that of methamphetamine offending on grounds of the latter’s “uniquely pernicious quality and the human misery that drug causes”. She relies on the Court of Appeal’s decision in R v Stanaway as acknowledging the greater leniency granted the former offending.25 She responds to the Court of Appeal’s caveat such leniency may not be justified “if potential addiction no longer is to be regarded as the predominant measure of perniciousness”, by pointing out the Ministry of Health’s Drug Harm Index records “hallucinogenic and psychedelic drugs (specifically LSD) consistently register the lowest levels of harm (by far) across the measurable domains”. These domains are “personal harm”, “harm to family and friends”, “cost to the community”, “organised crime”, “tax avoidance”, “cost of intervention” and “social cost and total harm”.26

[22]   I doubt that is quite what the Court of Appeal had in mind. The Court of Appeal noted its earlier advice in R v O’Donnell:27

… the difference in sentences between [addictive drugs such as heroin and the Class A hallucinogens such as LSD] should not be large and … a review of sentences suggests that this difference may in some cases have resulted in unduly lenient sentences for importing or dealing in the hallucinogenic drugs.

The Court of Appeal’s review of decisions in Stanaway found this position justified. The Court of Appeal concluded:28

Of course the nature and effect of drugs may depend upon purity and other factors. Further, sentencing must take account of a wide range of factors apart from the particular drug formulation. Factors such as difficulty of detection, the extent of social problems caused by the availability of the drug and the perceived need for deterrence are factors as well as those identified by the Judge.

24     R v Fatu [2006] 2 NZLR 72 (CA) at [22].

25     R v Stanaway [1997] 3 NZLR 129 (CA)

26     Ministry of Health New Zealand Drug Harm Index 2016 (2nd ed).

27     R v Stanaway, n 25 above, at 135.

28     At 142.

It may be that in a suitable case the Court will need to consider whether any significantly lower level of sentences for offences involving the class A hallucinogens still is justified in light of current knowledge of physical and psychological effects and other social considerations. It may be that potential addiction no longer is to be regarded as the predominant measure of perniciousness. That is an exercise to be embarked upon only on the basis of relevant evidence.

[23]   That is not an exercise on which I am prepared to embark on the evidence before me. The wider principles of sentencing may require greater focus on offenders’ roles in the offending, rather than its subject matter. Mr Smith’s offending was clearly founded in importation, rather than focused on any particular class of drugs. The gateway nature of the offending may have its own significance in sentencing. The Court of Appeal has noted Class A drug importation rarely should result in a non- custodial sentence,29 which endorses the presumption of imprisonment for Class A drug offending set out in s 6(4) of the Misuse of Drugs Act 1975.

[24]   That said, Faulkner, while not irrelevant, is not the most germane authority available: after all, it concerned a charge of possession of supply not (actual or attempted) importation. I accept the Crown’s point, in the present circumstances, nothing material is to be drawn from the attempt nature of the offending. The importation came to an end on enforcement authorities’ intervention, and Mr Smith was directly involved prior to that time.30 There was nothing more for him to do in terms of importation.

[25]   Judge Collins also had before him R v Tregaskis,31 which Ms Dyhrberg emphasises has ‘great similarity’ to the present facts. The ‘similiarity’ is Ms Tregaskis is Mr Barker’s analog. The starting point for sentencing her co-offender – Mr Hamilton, Mr Smith’s analog – for the Customs-intercepted importation of 751 LSD tabs was three and a half years’ imprisonment. That same starting point was adopted in R v Eardley-Wilmot for Customs-intercepted importation of 400 LSD tabs.32 That was determinedly a six month increase over his lesser-involved co-offender’s three

29     R v McCarthy (1996) 13 CRNZ 578 (CA).

30     R v Mason (CA 340/05, 16 March 2006, Chambers Baragwanath and Heath JJ) at [9].

31     R v Tregaskis [cite]

32     R v Eardley-Wilmot [2008] NZHC 197 at [7] (recorded as 200 tabs in R v Eardley-Wilmot [2008] NZCA 213).

year starting point.33 While I say ‘analog’, that is only in role, and not in sophistication of the offending. All four of those cases involved what may be opportunistic importations involving dispatch by principal offenders from Canada to their co- offenders in New Zealand. The opportunism may be the apparent relative ease of availability of LSD in Canada.

[26]   The Crown points to R v Brown, from which it derives a starting point of five years and four months.34 I am unsure the derivation is legitimate. Mr Brown pleaded guilty to his principal role in various drug-related offending, including importation of 35 LSD tabs, calculated to amount to some $4.1m over a three-year period. On the lead offences – four charges of importing Class B drugs in 2006 and 2007 – his initial starting point was 14 years’ imprisonment, uplifted to 15 years for his criminal history, and globally discounted by 4 years, “or over 25 per cent discount”, for his advanced age, poor health, guilty pleas and remorse.35 Within that, he was concurrently sentenced to four years imprisonment on the LSD importation charge. There is no indication the same calculation was applied to the concurrent sentences, which may better be regarded as effectively starting points, each not subjected to the lead offences’ uplift and discount. And, even if four years was the end point, reversing the year’s uplift and 25 per cent discount do not give a materially different starting point.

[27]   Similarly I am unsure of the legitimacy of Ms Dyhrberg’s assumption of 30 per cent discounts to reach starting points of three years and three months and two years seven months for importations of respectively 480 and 988 LSD tabs. The Court of Appeal described the offending in Power as “an amateurish importation lacking in any detailed planning and sophistication”.36 In McCarthy, the Court of Appeal said the two-year end term of imprisonment there could not be contemplated, given the seriousness of the offending and the need to deter others, but for the “most unusual” circumstances of this ‘unsophisticated’ offending.37

33     R v Arhaim [cite].

34     R v Brown (High Court, Auckland, 3/2/2011, CRI-2008-004-20453, Woolford J)

35 At [50].

36     At p 10.

37     At 579-580,

[28]   Having regard for these cases, the appropriate comparable starting point for offending in a principal role in organised LSD importation is within a band from three and a half to four and a half years’ imprisonment. To the extent starting points can be discerned in them, the majority of the cases referred to in Faulkner as foundation for its five-year starting point fall within that band. The particular outlier is the first of those, R v Briggs (relating to three importations, totalling 580 LSD “doses”), where the Court of Appeal says the six-year sentence was “severe”, but not manifestly excessive in itself. The Court of Appeal accepted comparison with his less-involved co-offender’s four-year sentence was “disparate… [a] sentence of five years would have been a truer measure of punishment”, to which the sentence was reduced on appeal. That suggests an inferred starting point also within the band. However, in Faulkner, the Judge took the view the cases supported starting points of between four and a half to five and a half years.38

[29]   I recognise my indicated band is to repeat the ‘undue leniency’ in LSD importation offending identified by the Court of Appeal. I would extend the band to five and a half years, to allow for the approach taken in Faulkner in reliance on the cases cited there. But I am unable materially to deviate from all those cases, without the exercise indicated necessary by the Court of Appeal. I observe, from the cases to which I have been referred, quantities of LSD imported may be less determinative in sentencing than the offender’s role in the importation, and its level of sophistication.

[30]   Ms Dyhrberg disputes Mr Smith pressured or coerced Mr Barker into participating in the offending. She points to the police officer in charge’s agreement Mr Barker chose to participate. That, however, does not respond to the point Mr Smith initiated the offending, and enlisted Mr Barker’s assistance. Also, while I acknowledge Ms Dyhrberg’s downplaying of the sophistication of Mr Smith’s conduct to the extent it relies on advances in technology, covert use of new forms of commercial transactions to break the law has its own sophistication.

[31]   It is also necessary for Mr Smith’s starting point to reflect his more serious offending, compared to that of Mr Barker (also within the band). A three to six month

38 At [11].

increase on Mr Barker’s four and a half year starting point would suffice. In my view, Judge Collins’ six-year starting point for Mr Smith erred. The Judge provided no particular reason for his 18 month uplift, which was to move Mr Smith’s starting point materially beyond even the extended band I have identified from the cases, the upper end of which was express in Faulkner, relied on by the Judge.

[32]   Ms Dyhrberg also argues for a downward adjustment in starting point to reflect what she says is the “limited commerciality” of the offending, although her submission is principally to say the offending is attributable to Mr Smith’s particular disabilities. But Mr Smith’s offending was, perhaps characteristically, commercially disciplined and technologically advanced. It cannot be said Mr Smith’s heightened curiosity or fixation with hallucinogenic drugs, or his naïve and diminished decision-making in obtaining them, caused his offending. That his starting point is not at the top of the band provides sufficient headroom for yet more commercially mercenary offending.

Discounts

[33]   Ms Dyhrberg criticises as “manifestly inadequate” Judge Collins’ one year discount for Mr Smith’s rehabilitation, and one year discount for Mr Smith’s mental health condition, and complains the Judge failed to apply any discount for remorse and character. I prefer the view the Judge’s periodic discounts for other than Mr Smith’s guilty plea is global recognition of the various impacts of Mr Smith’s mental health at his young age (itself a discount offered in part to recognise neurological immaturity), including in admitting and addressing his own offending. I acknowledge Mr Smith’s diligence in rehabilitation. The Judge rightly harboured reservations as to the degree to which Mr Smith’s mental health affected his culpability. I do not think the Judge erred at all in that respect. A more arithmetic, but (in light of the pervasive impact of Mr Smith’s mental health) artificial, attribution of available percentage discounts across all available fields would not arrive at a materially different figure.

End sentence

[34]   Applying the judge’s uplift and discounts proportionately to a five year starting point results in an end sentence of 22-23 months’ imprisonment. The Judge’s end point of two years and three months’ imprisonment is some 20 per cent more than that. Given

the absence of explanation for his choice of starting point, in the face of the range expressly identified by Faulkner on which he relied, I am entitled to make modest adjustment. Particularly in circumstances in which the statutory presumption of imprisonment for Class A drug offending is open to rebuttal if the offender is under 20 years of age, and the less restrictive sentence of home detention would then be available, I find Mr Smith’s sentence materially excessive, and I set it aside.

[35]   I substitute a sentence of twenty-two months’ imprisonment and commute that to a period of 11 months’ home detention on the standard conditions and special conditions:

(a)not to possess, consume or use any alcohol or drugs not prescribed to Mr Smith;

(b)to attend and complete an appropriate mens departmental programme to the satisfaction of a probation officer, the specific details of the appropriate programme shall be determined by a probation officer;

(c)to undertake and complete appropriate assessment treatment, counselling as directed by and to the satisfaction of a probation officer; and

(d)to attend and complete an appropriate Odyssey House Residential Programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer.

(e)home detention is to be served at his family home, which for reasons of privacy I am not going to give out, but they have been determined as suitable for electronic monitoring if necessary.

—Jagose J