Standing v Police

[2020] NZHC 2111

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-443-17

CRI-2020-443-18 [2020] NZHC 2111

BETWEEN

TERRENCE LEWIS STANDING

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 August 2020
Counsel:	P J Mooney for appellant J E Bourke for respondent
Judgment:	20 August 2020

RESERVED JUDGMENT OF DOBSON J

[1]    The  appellant  (Mr Standing)  was  sentenced  by  Judge  Greig   in   the  New Plymouth District Court on 25 May 2020 to terms  of  imprisonment totalling 17 months.1 The sentencing was for two convictions for offering to supply a class A drug, two convictions for failing to appear in court and two convictions for breach of supervision. The sentencing also included a re-sentencing on two convictions for theft.

[2]    Mr Standing seeks to appeal the sentences imposed on the ground that they were manifestly excessive.

[3]    Mr Standing also seeks leave to bring his appeal out of time. It appears that he signed the appropriate notice of appeal sufficiently promptly for it to have been filed

1      Police v Standing [2020] NZDC 9344.

STANDING v NEW ZEALAND POLICE [2020] NZHC 2111 [20 August 2020]

in a timely way, but receipt in his lawyer’s office was delayed for some period and then filing was not attended to by his lawyer as a result of an oversight within that office.

[4]    In those circumstances, and given the absence of objection by, or claim of any prejudice to, the respondent, leave is granted for the appeal to be brought out of time.

Factual background and Mr Standing’s personal circumstances

[5]    In January 2019, Mr Standing resided in hostel-type  accommodation  in  New Plymouth and paid for the accommodation by helping with cleaning and other tasks at the property. His work responsibilities at the hostel gave him access to a locked shed where mountain bikes were stored for hiring to guests at the hostel. During January 2019, Mr Standing took two mountain bikes from the locked shed and sold them to a used goods dealer. On 21 March 2019, Mr Standing was sentenced to a year’s supervision on those two theft charges.

[6]    Between 6 June and 4 July 2019, Mr Standing breached the supervision sentence by failing to report to his Probation officer, and he faced the same charge for the period between 4 July 2019 and 23 January 2020. Given the Probation officer’s difficulties in locating Mr Standing during this period, a warrant was issued for his arrest in July 2019, and after he was arrested on that warrant he was released on bail but failed to appear in court in October 2019.

[7]    On 12 December 2019, Mr Standing attempted to flee from Police when they arrived at an address on a matter unrelated to him, and when bailed on that occasion he again failed to appear in court. Enquiries revealed that Mr Standing had made offers to supply methamphetamine on two occasions. The first was for a quarter of a gram, to the occupier of the property where he was apprehended, and the second offer involved bartering a gram of methamphetamine for a vehicle and cannabis.

[8]The pre-sentence report on Mr Standing commented:

A sentence of imprisonment is recommended. A sentence of imprisonment will serve largely as a punitive response to Mr Standing’s total disregard for

previous community-based sentences while affording him the opportunity to dry out and seek the drug and alcohol support he needs.

[9]    The report-writer stated that Mr Standing blamed anti-social peers for leading him down the wrong path, and that he accepted little or no responsibility for his actions.

The sentencing analysis

[10]   The Judge started with the two charges of offering to supply methamphetamine. The first is in respect of a quarter of a gram, which Mr Standing had offered for sale at $150, and the second was for a gram of methamphetamine, which he proposed to exchange for a motor vehicle and some cannabis. The Judge adopted a starting point of 12 months each for those two convictions, to be served on a concurrent basis.

[11]   Mr Standing had previously been sentenced on two convictions for theft and, because of a breach of the community sentence imposed, was to be re-sentenced. The Judge adopted a four month cumulative starting point on the re-sentencing for those two convictions.

[12]   Mr Standing had also been charged with breaches of supervision, first from   6 June 2019 to 4 July 2019, and secondly from 4 July 2019 to 23 January 2020. The Judge adopted a starting point of one month’s cumulative imprisonment for the first period of breach of supervision, and a cumulative starting point of six weeks for the second period.   There were also two convictions for breach of bail  – the first on     2 October 2019 to which the Judge attributed a cumulative starting point of one month’s imprisonment, and secondly on 21 January 2020, which attracted a further cumulative starting point of one month’s imprisonment.

[13]   The Judge uplifted this sentence by six weeks to reflect Mr Standing’s previous convictions for breach of court orders, leading to a total sentence of 23 months’ imprisonment. He adopted a 25 per cent discount for guilty pleas, which the Judge rounded up to a six month discount, leading to the end sentence of 17 months’ imprisonment.

Grounds for the appeal

[14]   Mr Mooney criticised the starting points adopted for each component of the overall sentences as being excessive and that the Judge had failed adequately to consider the need for a discount for totality, after imposing sentences on a cumulative basis. Mr Mooney submitted that the Judge’s omission to record any totality analysis at the least entitled Mr Standing to have the sentencing analysis undertaken afresh. Mr Mooney’s written submissions also contended there was an arithmetic error in the Judge’s calculations, but he resiled from that criticism at the hearing of the appeal.

[15]   The Crown response was, in essence, that each of the component starting points was within the range open to the Judge, and that the end sentence was also within range, so that Mr Standing could not make out a sentencing outcome that was manifestly excessive. In particular, the sentence for the class A drug offending was characterised as “light”, introducing the prospect of “unders and overs” that meant the combined cumulative sentences remained within the range that was available.

Offers to supply class A drugs

[16]   The Judge treated these as the lead offences and agreed with both counsel that they fell within band one of the Court of Appeal’s recent guideline decision  in Zhang v R.2 The Judge was concerned that Mr Standing appeared not to give any consideration to the harmful, long-lasting effects of class A drugs. He found there was no evidence of an addiction driving the offers to sell methamphetamine, so was not inclined to be lenient in setting the sentence on that account. The Judge indicated that he had been intending to set a starting point of two years’ imprisonment, but had halved that to 12 months’ imprisonment, which was to be imposed concurrently for both charges.

[17]   Mr Mooney submitted that this was minor offending clearly within band one as defined in Zhang, where sentences range from four years’ imprisonment down to community sentences for dealing in less than five grams. On the basis that the quarter gram was offered at $150, Mr Mooney submitted that the barter deal for a gram should

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

not be valued at any more than $600, so in totality was at the most modest end of band one. Certainly, the lack of any pattern in the attempted dealing and lack of financial commitment to it by Mr Standing justified its lesser ranking of culpability on the levels in Zhang. Mr Mooney submitted that had this offending stood on its own, a starting point for both convictions of approximately six months’ imprisonment would have been appropriate.

[18]   For the respondent, Mr Bourke submitted that the starting point could have been 18 months’ imprisonment, citing the pre-Zhang High Court decision in R v Harrison.3 That case involved the same quantity of 1.2 grams. However, the offending in that case was measurably more serious and its adherence to the previous guideline judgment in R v Fatu lessens its current relevance.4

[19]   I note the Police submissions on sentencing in the District Court contended for a starting point on the drug charges of eight months’ imprisonment. Mr Bourke submitted that the Police prosecutor was wrong to rank the offending at that level, but I consider that proposed starting point to have been appropriate. The offers to supply were of modest amounts,5 with no evidence of an on-going pattern of dealing, such as would be suggested by the presence of electronic scales or a supply of bags (which was the case in Harrison). There was no suggestion that Mr Standing had any material extent of cash which might reflect dealing, or anything in the nature of a tick list. He is appropriately ranked in the lesser category of participants in band one.

[20]   Mr Standing is not entitled to leniency on the ground that the dealing activity was driven by his own addiction, when Zhang requires more than self-reporting on that aspect.6 Further, the fact that he was proposing to trade a gram of methamphetamine for a motor vehicle and cannabis is inconsistent with the need to maximise cash from such a deal to pay for his own class A drugs. The starting point for this component of the sentencing is appropriately reduced from 12 to eight months’ imprisonment.

3      R v Harrison HC Hamilton CRI-2007-019-8494, 14 November 2008.

4      R v Fatu [2006] 2 NZLR 72 (CA).

5      The only evidence was the terms of written communications reconstructed from Mr Standing’s cell phone. He was not found in possession of any drugs.

6      Zhang v R, above n 2, at [148].

Breach of sentences of supervision

[21]   The Judge treated each period during which Mr Standing was charged with breaching his earlier sentence of supervision separately. This reflected the terms of the charges as they were laid. The Judge imposed sentences of one month and six weeks, in each case cumulatively, in respect of the period up to 4 July 2019 and from that date until 23 January 2020.

[22]   Mr Mooney submitted that a single sentence ought to have been imposed, given that the breach of supervision was one on-going course of conduct. Mr Standing had explained to the Probation officer that it was caused by his electing to leave town to avoid associates who might encourage further offending.

[23]   If seen as one course of conduct, Mr Mooney submitted that one month’s imprisonment would have been sufficient, particularly having regard to the imposition of special conditions which would follow from his release from prison, and be akin to the sentence of supervision. Mr Mooney invited analogy with the decision of Kanuta v R,7 in which the District Court had imposed an uplift of four months for a breach of supervision and breach of community work sentences. On appeal, Brewer J treated this as excessive and reduced the uplift to one month. Mr Mooney submitted that if indeed the breach of supervision was seen as one on-going offence for the total of the two periods from late June 2019 to January 2020, then the Judge’s sentence of two and a half months relative to the maximum sentence of three months for such offending was not warranted given the circumstances.

[24]   Mr Bourke submitted that the Judge’s approach in imposing cumulative sentences was correct, and that their extent was within the range available. Mr Bourke invited analogy with the judgment of Lang J in Dick v Police where the Court was dealing with an appeal from sentencing for serious driving charges plus breaches of a sentence of community work and a sentence of supervision, as well as failing to answer bail.8 Having dealt with the appeal from the sentence imposed on the driving charges, Lang J continued:

7      Kanuta v R [2016] NZHC 436.

8      Dick v Police [2014] NZHC 434.

[21] This would leave an end sentence of two years imprisonment before taking into account the remaining charges. I consider that these require a discrete uplift, because each represents a separate instance of Mr Dick deliberately flouting orders imposed by the Court, or requirements made of him by the probation authorities. I consider that the most egregious of these is Mr Dick’s failure to attend community work on nine separate occasions. I consider that this warrants a cumulative sentence of two months imprisonment. I consider that cumulative sentences of one month’s imprisonment each are warranted on the remaining two charges.

[25]   Mr Bourke was unable to clarify  why  those  responsible  for  supervising  Mr Standing’s sentence of supervision had elected to bring two charges for what amounted to one relatively lengthy period of non-compliance.

[26]   Possible rationales for imposing a longer cumulative sentence for the second period of breach include the fact that the period to which the second charge related was substantially longer or that, having committed a  first breach  for the  period to  4 July 2019, Mr Standing then re-offended so that any leniency justified for the first occasion could not be repeated.

[27]   However, whatever justification is offered, I am satisfied that a total of two and half months by way of cumulative sentences is more than was warranted. The two charges might have been dealt with by way of concurrent sentences, with a total period of one and a half months being 50 per cent of the maximum sentence for a single offence being sufficient.

Re-sentencing on theft convictions

[28]   In R v Morgan, the Court of Appeal has provided guidance on re-sentencing where a community-based sentence has been breached:9

[14]      Where imprisonment is imposed in substitution for a community- based sentence, there will inevitably be a greater degree of hardship for the offender. That is legitimate. In such a case, the offender will have had the benefit of a less restrictive alternative than imprisonment but will have failed to take advantage of it. The re-sentencing Judge is likely to weigh the various purposes and principles of sentencing in a way that is different to that which occurred on the first sentencing. For example, where the community based sentence was imposed because the sentencing Judge placed particular weight on the offender’s rehabilitation, that factor may assume less weight on

9      R v Morgan [2008] NZCA 232.

re-sentencing given the offender’s failure to comply with the community- based sentence.

[15]      Accordingly, while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. …

[29]   Mr Standing’s theft of the two mountain bikes involved circumstances somewhat akin to a breach of trust because he had access to a locked shed. In other respects, the thefts were unsophisticated and appear to have been relatively promptly discovered. The maximum sentence for theft of items valued between $500 and

$1,000 is one year’s imprisonment.10 I find concurrent sentences of four months’ imprisonment for the theft offences (to be served cumulatively upon other sentences) were within the range available to the Judge. I am not concerned that the outcome on re-sentencing lacks proportionality with the original sentence.

Uplift for previous convictions

[30]   The Judge uplifted the specific sentences by six  weeks to take account  of  Mr Standing’s previous convictions for breaching court orders, which he described as “quite extensive”.

[31]   Mr Standing does have a relatively extensive record of previous offending including dishonesty and property-based offences and breaches of court orders, which occurred most recently in 2005 and before that in 2001 and 1998-1999.

[32]   In Reedy v Police, this Court summarised the approach to imposing uplifts for previous offending on sentencing:11

[19] The principles in relation to uplifting the previous offending can therefore be stated as follows:

(a)there will be no uplift for the bare existence of previous convictions – to do so would be to punish offending more than once;

10     The summary of facts indicates that a second-hand dealer paid $135 and $90 for the two mountain bikes.

11     Reedy v Police [2015] NZHC 1069 (citations omitted).

(b)The permissible lines of reasoning, justifying an uplift, fall into three broad categories:

(i)previous convictions bearing upon character and culpability;

(ii)indication of predilection to offend in a specific way (an indicator of reoffending);

(iii)the need to protect society by the imposition of a deterrent sentence.

This necessarily requires the uplift to be firmly tied to specific aspects of the offender’s criminal history.

(c)the uplift must remain proportionate to the starting point fixed by the sentencing Judge.

(d)there is no fixed figure beyond which an uplift will be held to be disproportionate. This is a matter to be determined, at first instance, by the sentencing  judge  having  regard  to  all  relevant  factors  (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).

[33]   Generally, the longer the period of time that has elapsed since any relevant previous offending, the less weight the Court is likely to give to previous convictions as requiring an uplift.12 Here, the Judge may well have been troubled by all the current offending, suggesting a pattern of disregard by Mr Standing for the consequences of sentences imposed on him. That is a legitimate concern. However, the previous convictions for breaches of court orders are now between 15 and 21 years ago, for a man now aged 41. Given all the other considerations applying on the imposition of a sequence of cumulative sentences, I am not persuaded that an uplift was warranted in this case.

Failing to appear

[34]   The Judge nominated starting points of a further cumulative one month’s imprisonment for failing to appear on 2 October 2019, and two months’ imprisonment for the failure to appear on 21 January 2020.

[35]   Apart from the general criticism that  all  starting  points  were  excessive,  Mr Mooney did not advance a separate ground for criticising this component of the sentencing.

12     Cashmore v Police [2017] NZCA 508 at [11].

[36]   Given their part in the overall offending being considered at sentencing, and in light of the adjustments I have accepted should be made to other components, I see no justification for altering this component. A starting point on both convictions of a cumulative period of three months’ imprisonment remains appropriate.

Need to consider totality

[37]   Section 85(2) of the Sentencing Act 2002 requires the Court to ensure, when imposing cumulative sentences, that they do not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. In this case, the Judge did not acknowledge having considered totality at the end of his analysis on each of the component parts of the final sentence. In responding to the appeal, Mr Bourke submitted that the Judge may have had a totality adjustment in mind when, in the first component of the sentencing analysis, he reduced the starting point for the class A drug offending from two years to 12 months’ imprisonment. However, there is no acknowledgement in the sentencing notes that that was the Judge’s thinking. Given that the observation was at the beginning rather than the end of the sequence of sentencing considerations, I reject the suggestion that it constituted a totality adjustment.

[38]   In criticising the absence of a totality assessment, Mr Mooney submitted that the Judge should have made reference to the totality consideration. Mr Standing was entitled to know the reasons for the Judge either making an adjustment to ensure the total period of imprisonment was not out of all proportion with the gravity of the overall  offending, or for not  making such an  adjustment.  At  the very least,  on   Mr Mooney’s argument, the absence of consideration of totality meant that the Court on appeal had to undertake that exercise for itself.

[39]   Given the merits of various aspects of the appeal, I have undertaken the analysis of the constituent parts afresh, and that exercise is also necessary to undertake a totality analysis. On my re-evaluation, I consider the appropriate starting points are as follows:

Convictions	Starting points
Offering to supply methamphetamine (x 2)	8 months
Re-sentencing on theft convictions	4 months
Breach of sentences of supervision	1.5 months
Failing to appear (x 2)	3 months
Total	16.5 months

[40]   From that point, there is no issue that Mr Standing was entitled to a 25 per cent discount for his early guilty pleas, resulting in an end sentence of 12.3 months, which can now be rounded down to 12 months.

[41]   I do not consider that the imposition of cumulative sentences to that extent, when allocated as I have proposed, results in an end sentence that is wholly out of proportion to the gravity of the overall offending. The pre-sentence report presents a worrying picture of an offender who, in recent years, has reverted to a pattern of much earlier behaviour where he is cavalier about compliance with community sentences and court orders. The end sentence is accordingly warranted.

[42]   I allow the appeal and substitute for each of the sentences imposed in the District Court the following cumulative sentences of imprisonment:

Convictions	Period of imprisonment
Offering to supply methamphetamine (x 2)	6 months
Re-sentencing on theft convictions	3 months
Breach of sentences of supervision	1 month
Failing to appear (x 2)	2 months
Total	12 months

Dobson J

Solicitors:

Mooney & Webb, New Plymouth for appellant Crown Solicitor, New Plymouth for respondent