Steyn v The King

[2023] NZHC 3359

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2023-483-000017

CRI-2023-483-000018 [2023] NZHC 3359

BETWEEN

BERNARD WILLIAM STEYN

Appellant

AND

THE KING

Respondent

Hearing:	21 November 2023
Appearances:	N P Bourke for Appellant J C H Liu for Respondent
Judgment:	24 November 2023

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 24 November 2023 at 1.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date ………………………….

STEYN v R [2023] NZHC 3359 [24 November 2023]

Introduction

[1]    The appellant, Mr Bernard Steyn, pleaded guilty in the Whanganui District Court to seven drug-related charges. This included offering to supply methamphetamine, a class A drug. He was sentenced by Judge J Krebs to 27 months and two weeks’ imprisonment on all charges.1 He appeals to this Court, contending that the end sentence was manifestly excessive.

[2]    Mr Bourke, on behalf of Mr Steyn, submits that an end sentence of two years’ imprisonment or less is appropriate and that the Court should consider imposing a sentence of home detention instead of imprisonment.

[3]There are four main grounds of appeal advanced by the appellant:

(a)the global starting point was outside the available range;

(b)the four-month uplift for offending on bail was excessive;

(c)insufficient credit was given for mitigating factors; and

(d)a non-custodial sentence is appropriate.

[4]The Crown opposes the appeal.

Background facts

[5]    There are two sets of charges relating to two distinct time periods. The first set of charges arise from Police analysis of Mr Steyn’s cellphone communications between June and July 2022. This analysis revealed several text message conversations in relation to potential drug deals. Across these conversations, Mr Steyn offered to supply a total of 7.3 grams of methamphetamine and 7 grams of cannabis. In September 2022, a search warrant was executed at Mr Steyn’s address. During the search the following was located at his property:

1      R v Steyn [2023] NZDC 21266.

(a)a total of 14 grams of methamphetamine;

(b)five tabs of LSD; and

(c)a total of 23 grams of cannabis.

[6]As a result of this offending, Mr Steyn was charged with the following:

(a)one representative charge of offering to supply a Class A drug (methamphetamine);2

(b)one representative charge of offering to supply a Class C drug (cannabis);3

(c)possession for supply of methamphetamine;4

(d)possession for supply of LSD;5 and

(e)possession for supply of cannabis.6

[7]    During the execution of the search warrant, Police also located two small sets of digital scales and a large quantity of unused small plastic bags. Mr Steyn was released on bail awaiting sentencing on these charges.

[8]    On 11 May 2023, Mr Steyn received a sentence indication from Judge Krebs in relation to these charges. That indication involved a starting point of three years’ imprisonment and a 25 per cent discount for guilty pleas, which Mr Steyn immediately accepted.7 His sentencing was adjourned until 27 September 2023 to allow him to engage with rehabilitation and for various pre-sentence reports to be prepared.

[9]    Two weeks before sentencing a further search warrant  was  carried  out  at Mr Steyn’s address. The Police found a further 2.03 grams of methamphetamine and

2      Misuse of Drugs Act 1975, ss 6(1)(c) and (2). Maximum penalty life imprisonment.

3      Sections 6(1)(d) and (2). Maximum penalty eight years’ imprisonment.

4      Sections 6(1)(f) and (2).  Maximum penalty life imprisonment.

5      Sections 6(1)(f) and (2).  Maximum penalty life imprisonment.

6      Sections 6(1)(f) and (2). Maximum penalty eight years’ imprisonment.

7      A starting point of two years and nine months’ was adopted for the lead charges of offering to supply and possession for supply of methamphetamine, with a three month uplift for the remaining charges.

32.5 grams of dried cannabis, as well as other items indicative of commercial drug dealing. These items include zip lock bags, scales and a tick list. This gave rise to the second set of charges. Mr Steyn was then charged with, and pleaded guilty to, possession for supply of both cannabis and methamphetamine (i.e. two further charges, giving a total of seven charges).8

The sentence imposed

[10]   Judge Krebs began the sentencing decision by reference to his earlier sentence indication. That involved a starting point for the initial five charges of three years’ imprisonment based on Zhang v R and a 25 per cent discount for guilty pleas.9 The sentence indication was based on a starting point or two years and nine months’ imprisonment for the lead methamphetamine offending, with a three-month uplift for the remaining charges.

[11]   The Judge considered that this starting point needed to be adjusted upward in light of the second set of offending.10 Despite recognising that possession for supply of two grams of methamphetamine would likely not, of itself, result in a sentence of imprisonment, the Judge held that a further six months’ imprisonment was appropriate for both the additional methamphetamine and cannabis offending. A further four months imprisonment was added for the “significant aggravating feature” of the offending occurring whilst Mr Steyn was on bail awaiting sentence.11 This resulted in an adjusted starting point of 46 months’ imprisonment.12 However, as discussed below, the ultimate starting point the Judge relied on was one of 44 months’ imprisonment.

[12]   Judge Krebs went on to consider a drug and alcohol report that had been prepared for Mr Steyn, as well as the pre-sentence report. Although the Judge recognised that Mr Steyn grew up in an environment where drug and alcohol use was normalised, and that this is a difficult position to resile from, he noted that it was an

8      Sections 6(1)(f) and (2). Maximum penalty life imprisonment for the methamphetamine charge and eight years’ imprisonment for the cannabis charge.

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

10     R v Steyn, above n Error! Bookmark not defined., at [12].

11 At [12].

12 At [13].

aggravating factor that Mr Steyn was spreading drug use further around the community, beyond just using the drugs himself.13 Judge Krebs had referred earlier in the judgment to Mr Steyn being exited from a drug and alcohol programme prior to sentencing on the basis that he was “ambivalent” about his methamphetamine use and could not see the harms of it, as well as the fact that had declined admission to the Salvation Army “Bridge” programme.14 On this basis, the Judge expressed concern regarding Mr Steyn’s rehabilitative prospects, but accepted that there was a “glimmer” of a prospect that he might reform.15

[13]   A 10 per cent discount was awarded on the basis of personal mitigating factors, which in combination with the guilty plea discount, resulted in a total discount of 35 per cent.

[14]   However, the parties accept that Judge Krebs then made a mathematical error which was ultimately in Mr Steyn’s favour. The Judge stated that a discount of 35 per cent would be applied to an adjusted starting point of 44 months’ imprisonment (despite stating earlier in the judgment that the appropriate starting point was 46 months’ imprisonment). Judge Krebs stated that this took Mr Steyn to an end sentence of 27 and a half months’ imprisonment.16 Judge Krebs ultimately applied a total discount greater than 35 per cent.

[15]   Judge Krebs considered that he would not have commuted Mr Steyn’s sentence to one of home detention even if the end sentence of imprisonment had been of a short duration, on the basis of deterrence. He stated:

You need to change, you need to want to change, and a sentence of imprisonment would be the only sentence I would impose to assist you with coming to the view that you must change.

13 At [14].

14     At [7]–[10].

15 At [15].

16 A 35 per cent discount on 44 months’ imprisonment would result in an end sentence of 28.6 months’ imprisonment. A 35 per cent discount on 46 months’ imprisonment would be 29.9 months’ imprisonment. I note that a 40 per cent discount applied to 46 months’ imprisonment results in an end sentence of 27.6 months’ imprisonment, which is essentially what Judge Krebs imposed.

Legal principles

[16]   Mr Steyn has an appeal as of right under s 244 of the Criminal Procedure Act 2011 (CPA).

[17]   Section 250 of the CPA sets out how a court is to determine a sentence appeal. An appeal must be allowed if the court is satisfied that there is an error in the imposed sentence and that a different sentence should be imposed.

[18]   The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:17

… the standard of appellate review in sentence appeals ... requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation.

[19]   In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.18 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.19 A Judge on appeal should not intervene where the sentence imposed was within the range that could be properly justified by accepted sentencing principles.20

Analysis and decision

[20]   I address each of the following grounds of appeal: whether the starting point adopted by the Judge was too high, whether the four-month uplift for offending on bail was excessive, and whether insufficient credit was given for personal mitigating factors.

17     Palmer v R [2016] NZCA 541 at [17] (footnotes omitted).

18     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

19 At [36].

20     At [36]; citing Tutakangahau v R [2014] NZHC 556 at [10].

[21]   However, as Mr Bourke correctly submitted, the ultimate and over-arching issue is whether, viewing matters overall and having regard to the totality of the offending, the end sentence was manifestly excessive.

[22]   In relation to the totality of the offending, Mr Bourke emphasised the following factors: the severe and long-term addiction of the appellant to methamphetamine; the “low-level street dealer” role of the offender (i.e. low-level commerciality); the absence of any lavish lifestyle of the appellant or him otherwise living beyond his means; and the failure of Judge Krebs to give the appellant credit for time spent on bail.

Issue (a) – the starting point

[23]   As correctly identified by Judge Krebs, offences relating to methamphetamine are governed by the guideline judgment of R v Zhang.21 That case identified five bands of offending based on the quantity of methamphetamine involved but noted that the role played by the offender, and therefore their culpability, nevertheless remains an important consideration in determining the starting point.22 In particular the Court of Appeal divided the offender’s role into three categories differentiating between “leading”, “significant” and “lesser”.23

[24]   The total identifiable quantity of methamphetamine in Mr Steyn’s offending, namely 23.3 grams, places him within band two of Zhang. That band captures offending involving quantities of methamphetamine of five grams or more, but less than 250 grams.24 Offending within this band attracts a starting point of between two and nine years’ imprisonment.

[25]   In my view, there is some merit to Mr Bourke’s submission that in the application of the Zhang principles to the offending here, the starting point adopted of two years and nine months’ imprisonment was too high. It was certainly at the high end of the available range. The critical factors, as Mr Bourke identified, are the

21     Zhang v R, above n 9.

22 At [118].

23 At [115].

24 At [125].

relatively modest amount of methamphetamine involved and the “street level” subsistence dealer role of the appellant, driven by his long-term addiction to the drug. However, as noted, the critical and ultimate issue is to address the totality of the offending and whether the end sentence is manifestly excessive. As the Court of Appeal held in Tutakangahau v R, the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.25 In my view, the starting point adopted by the Judge did not ultimately result in a manifestly excessive end sentence.

[26]   In the circumstances, it is not necessary for me to refer in detail to the significant number of cases referred to by counsel. They do tend, however, to support the conclusion that the starting point imposed by Judge Krebs was at the high end of the available range. For example, in Tregoweth v R, the appellant was found guilty following trial of three charges of possession of methamphetamine for supply.26 37.3 grams of methamphetamine was involved. At sentencing, both defence and Crown counsel agreed that the appropriate starting point was two and a half years’ imprisonment and the sentencing Judge adopted that starting point. That starting point was not disturbed in the Court of Appeal, although the sentence appeal was ultimately allowed for other reasons.

[27]   In Sherriff v R, the appellant pleaded guilty to charges of possession of methamphetamine for supply and a representative charge of offering to supply methamphetamine.27 The total amount of methamphetamine involved was 28.96 grams. A starting point of two years and nine months’ imprisonment was adopted by the District Court, after reference to the appellant’s well-documented addiction to methamphetamine and “lesser” role in accordance with Zhang. This starting point was not disturbed on appeal.

[28]   I acknowledge the Crown’s submission that there is no exact mathematical conversion between the amount of methamphetamine involved and the appropriate sentencing starting point. The various decisions do represent a range of starting

25     Tutakangahau v R, above n 18, at [36].

26     Tregoweth v R [2021] NZCA 311.

27     Sherriff v R [2021] NZHC 3414.

points.28 One of the cases relied upon by the Crown and referred to by the Crown at the sentencing indication, Govender v R, does appear to be a more serious band two case with some 29 grams of methamphetamine involved, a clear commercial dimension and a lack of persuasive evidence establishing a causative link between the defendant’s addiction and their offending.29 A starting point of three and a half years’ imprisonment was upheld on appeal..

Issue (b) – uplift for offending while on bail

[29]   I find that the imposition of a four-month uplift to reflect that the second set of offending occurred while Mr Steyn was on bail did not result in a manifestly excessive sentence. The four-month uplift was within range.

[30]   Mr Bourke referred me to the case of Malamatenios v R. In that case, the sentencing Judge had applied an uplift of six months on the basis that the offending in question had occurred whilst the defendant was on bail for other drug-related offending, as well as on account of the defendant’s earlier convictions.30 The Court of Appeal considered that an uplift was warranted for the fact that the offending occurred while the defendant was on bail, however it considered that a three-month uplift adequately met the circumstances of the offending.31 The Court of Appeal also held that no uplift for previous offending was warranted.

[31]   On this basis, Mr Bourke submits that the uplift applied to Mr Steyn’s sentence for offending while on bail should not exceed three months. I disagree. In Malamatenios, part of the Court of Appeal’s reasoning for the finding that a six-month uplift was manifestly excessive was that such an uplift comprised 25 per cent of the starting point.32 In this case, a four-month uplift on Judge Krebs’ adjusted starting point for Mr Steyn’s offending (of 42 months’ imprisonment) is just 9.5%.

[32]   In my view, it was open to the sentencing Judge to impose an uplift of four months’ imprisonment to reflect the fact that Mr Steyn’s second set of offending

28 See also Tuuta v R [2019] NZHC 2788; Samuels v R [2022] NZHC 432; Manuel v R [2022] NZHC 654; Porter v Police [2022] NZHC 415; Dunn v Police [2020] NZHC 316; Pona v R [2020] NZHC 3503; R v Griffiths [2023] NZHC 357.

29 Govinder v R [2019] NZHC 3212.
30 Malamatenios v R [2013] NZCA 347.

31 At [21].

32 At [21].

occurred while on bail. As Mr Liu submitted, this was an egregious breach of bail. Section 9(1)(c) of the Sentencing Act 2002 specifically recognises that the fact that the offending was committed while on bail is an aggravating feature. The uplift did not result in a manifestly excessive sentence.

Issue (c) – discounts for mitigating factors

[33]   Mr Bourke raises two issues regarding the discounts applied by Judge Krebs to Mr Steyn’s sentence for mitigating factors: firstly, that an insufficient discount was allowed for Mr Steyn’s addiction issues and upbringing; and secondly, that Judge Krebs failed to allow any discount for the time Mr Steyn spent on bail.

[34]   As I have already stated, while Judge Krebs indicated that a discount of 10 per cent (on top of the 25 per cent guilty plea discount) was available for Mr Steyn’s relevant personal factors, the actual discount applied was greater than this. The actual discount applied, using a starting point of 46 months’ imprisonment and a final sentence of 27 and a half months’ imprisonment, amounts to approximately 40 per cent (i.e. 15 per cent in addition to the guilty plea discount). In considering whether greater discounts should have been applied, my focus is on the end sentence imposed by Judge Krebs and whether this was manifestly excessive.

[35]   After considering all relevant materials before the Court, including the PAC report, I reject the appellant’s submission that the discount applied by Judge Krebs was insufficient. While it is indisputable that addiction can stand as an independent discount, the extent of this discount depends on the degree to which the defendant’s addiction mitigates their moral culpability for the offending;33 there must be a causal link. The PAC report notes that the appellant is “certainly not like many methamphetamine users, whose sole focus, and whole life, is the drug”. In the present case, I am not satisfied that the circumstances warrant any further reduction in Mr Steyn’s sentence than what was allowed by Judge Krebs.

[36]   I note Judge Krebs’ comments that Mr Steyn was brought up in an environment where drug and alcohol use was normalised and that this can be a difficult to position to resile from. There is also merit to Mr Bourke’s submission that given the degree

33     Zhang v R, above n 9, at [149].

and long-term nature of the appellant’s addiction, it is not surprising that he exhibited an ambivalent response to rehabilitation offers and programmes. However, I find that Judge Krebs was not in error applying the discount that he did for personal factors, including the issue of addiction.

[37]   I also reject the appellant’s submission that Judge Krebs was in error in failing to apply a discount for the time Mr Steyn spent on bail. I accept the Crown’s submission that s 9(2)(h) of the Sentencing Act 2002 specifically refers to “time spent on bail with an EM condition” as a factor that must be taken into account at sentencing, therefore distinguishing between bail simpliciter and EM bail. Despite this, the Court of Appeal has accepted that in principle it may be appropriate to allow a discount to reflect a significant period spent on 24-hour curfew (as is the case here).34 However, the extent to which a restrictive bail regime is relevant to sentencing depends on the individual circumstances, as observed by the Court of Appeal in Filoa v R:35

Compliance with a restrictive bail regime can be taken into account in mitigation of sentence, but need not. The sentencing Judge assesses whether and to what extent a discount is given in the circumstances of the case … Relevant considerations are the extent to which the offender’s liberty has been curtailed by the bail conditions, the duration of the remand on bail, and whether the offender breached bail.

[38]   In addition to not being subject to electronic monitoring, Mr Steyn re-offended while on bail and acted in breach of his conditions not to possess or consume illicit drugs. These considerations offset any discount that would otherwise be available for time spent subject to restrictive bail. In my view therefore, Judge Krebs did not err in refusing to allow a discount for time spent on bail. I find that the total discount applied at sentencing, which included a full discount for guilty pleas, was within the range of available options.

[39]   I also reject Mr Bourke’s submission that to deny the appellant any form of credit for the 12 months spent subject to restrictive bail conditions would amount to a “double punishment”. As the Court of Appeal held in Clunie v R, an uplift for further drug offending and a further uplift to recognise that the offending occurred while on bail does not necessarily amount to double-counting.36 Section 9(1)(c) of the

34     Bennett v R [2012] NZCA 173 at [25].

35     Filoa v R [2010] NZCA 588 at [9] (footnotes omitted).

36     Clunie v R [2013] NZCA 110.

Sentencing Act 2002 applies. The specific uplift for offending while on bail reflects the fact that such offending displays disregard for court processes.

Totality of the offending

[40]   In viewing the totality of the offending in the round and having regard to the end sentence, I find that the sentence imposed and at issue here, was not manifestly excessive. There may be a legitimate basis for questioning the initial starting point of two years and nine months’ imprisonment, but viewed overall the end sentence is within the available range. It was stern, as the Crown acknowledged, but not manifestly excessive.

[41]   The following factors are important. Firstly, Mr Steyn’s offending involved not just possession of methamphetamine for supply, but also possession of LSD for supply. LSD is also a class A drug and supplying LSD also carries a maximum penalty of life imprisonment. It is wrong just to focus on the quantity of the methamphetamine alone. Furthermore, the appellant did of course receive the benefit of an arithmetical error by the District Court Judge (i.e. the actual discount was approximately 40 per cent) and the further offending, being an egregious breach of bail, must be recognised as a mandatory aggravating factor.

[42]   The end sentence is not within the range in which the sentence of imprisonment could be commuted to one of home detention, therefore I do not need to consider whether a non-custodial sentence would be appropriate.37

Result

[43]The appeal is dismissed.

Andrew J

37     Sentencing Act 2002, s 15A.