Trower v Police

[2023] NZHC 3454

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-000060

[2023] NZHC 3454

BETWEEN

JAYDEN TROWER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 September, 28 November 2023
Appearances:	M Simpkins for the Appellant G Banuelos for the Respondent
Judgment:	30 November 2023

JUDGMENT OF HARVEY

[on appeal against sentence]

This judgment is delivered by me on 30 November 2023 at 2.30 pm.

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

Registrar / Deputy Registrar

Solicitors:

Gordon Pilditch, Crown Solicitor, Rotorua Simpkins Legal, Rotorua

TROWER v NEW ZEALAND POLICE [2023] NZHC 3454 [30 November 2023]

Introduction

[1]    Jayden Trower pleaded guilty to three sets of charges concerning, in broad terms, drugs, firearms and driving offences. On 2 June 2023, Judge J P Geoghegan sentenced Mr Trower to two years, four months’ imprisonment on all charges.1

[2]    Mr Trower appeals against that sentence on the basis that the Judge gave insufficient weight to mitigating factors. He says the level of discount that should have been given for these would have reduced the end sentence to one of two years’ imprisonment or less. Had that occurred, it would have been open, and appropriate, for the Judge to have sentenced him to home detention. He therefore contends the sentence of imprisonment that the Judge imposed is manifestly excessive.

The charges

The drugs and firearms charges

[3]    The most serious charges were those arising out of a series of events that began when the Police searched Mr Trower after he had been arrested and placed in custody. They subsequently executed a search warrant at his residential address.

[4]    When the police searched Mr Trower, they found several bags containing a crystal-like residue. These were in a small container that also contained a crystal-like substance. Upon analysis, the substance in both the bags and the container was confirmed to be methamphetamine having a total weight of 1.1 grams. At the time of his arrest, Mr Trower was also carrying the sum of $4,050 in cash as well as ziplock bags and a set of scales. In addition, the police found a pipe of the type commonly used to consume methamphetamine and a plastic ziplock bag containing a small quantity of cocaine.

[5]    When they found these items Police asked Mr Trower to provide the passcode for his cellphone. He refused to do so.

1      New Zealand Police v Trower [2023] NZDC 11307.

[6]When the police subsequently searched Mr Trower’s address they found

1.82 kilograms of cannabis in the bedroom. They also found a cut-down .22 calibre rifle and 21 rounds of .22 calibre ammunition under the mattress of the bed in that room. In addition, they found $3,730 in cash.

[7]    This series of events gave rise to charges of being in possession of cannabis for supply and being in possession of cocaine, methamphetamine and a methamphetamine pipe. He was also charged with failing to provide the passcode for his cellphone. In addition, Mr Trower faced two charges of being in unlawful possession of a firearm and ammunition.

The driving charges

[8]    The driving charges were laid following incidents that occurred on 5 July and 8 August 2022. On 5 July 2022, the police stopped Mr Trower’s vehicle at a routine traffic stop. He accelerated away and thereby caused a police pursuit. On 8 August 2022, the police stopped Mr Trower at another routine traffic stop and discovered that he had been suspended from driving. These events gave rise to charges of speeding and driving whilst suspended in its aggravated form.

The sentence

[9]    The Judge adopted a starting point of two years, nine months’ imprisonment on the drugs charges. He then added an uplift of 12 months to reflect the firearms charges and four months to reflect the remaining charges. This resulted in a sentence of four years, one month’s imprisonment. The Judge then applied an uplift of three months to reflect the fact that Mr Trower has previous convictions for similar offending.

[10]   From the resulting sentence of four years four months imprisonment the Judge deducted 10.4 months, or 20 per cent, to reflect guilty pleas. He applied a further discount of 20 percent to reflect Mr Trower’s remorse, the fact that the drug offending arose out of addiction issues and Mr Trower’s rehabilitative prospects. The Judge then applied a further discount of three months to reflect the fact that Mr Trower had been on EM bail for approximately six months. He rounded these up to an overall reduction

of 24 months from the sentence. This reduced the sentence to one of two years, four months’ imprisonment.

The appeal

[11]   Mr Simpkins does not take issue with the starting point the Judge adopted on the drugs charges or the uplifts he applied to reflect the remaining charges. However, he contends that the Judge failed to provide Mr Trower with a full discount of 25 per cent for his guilty pleas and that he also applied inadequate discounts for the remaining mitigating factors identified at sentencing.

[12]   Counsel argued that rather than applying a global approach to discounts, the Judge should have dealt with each factor separately, particularly the issue of addiction. The cultural report prepared by Cade & Co. filed in support confirmed that the appellant suffered from a serious methamphetamine addiction. Yet the discount applied failed to reflect that seriousness adequately which in one case cited R v Hill could have been up to 35 percent.2 Mr Simpkins also referred to the appellant’s engagement at Victory House which was also relevant in this context given that the discount was again inadequate.

[13]   Ms Banuelos disagreed and submitted that, apart from the guilty plea discount, all the other discounts that the Judge applied were well within the appropriate range for the appellant’s offending. She accepted the full 25 per cent guilty plea discount was available.

Discussion

Discount for guilty pleas

[14]   The Judge noted that, although Mr Trower had entered guilty pleas at the case review hearing stage, this was not the earliest stage possible. This led the Judge to conclude that an allowance of no more than 20 per cent was appropriate.

2      R v Hill [2008] NZCA 41.

[15]   Mr Simpkins argues that Mr Trower should have received a full discount of 25 per cent for his guilty pleas because they were entered as soon as Police confirmed the nature of the drugs that had been found in Mr Trower’s possession. At case review hearing Police also amended charges of being in possession of methamphetamine and cocaine for supply to charges of simple possession of those substances.

[16]   Mr Trower  first  appeared  in  the  District  Court  on  22 August  2022.  On 5 September 2022, he entered not guilty pleas to all charges. He did not enter his guilty pleas until 7 December 2022. There was therefore a period of approximately four months during which Mr Trower maintained his guilty pleas. Plainly he did not enter them at the first available opportunity. However, I acknowledge that Mr Trower was entitled to await the results of forensic analysis before entering his guilty pleas to the drugs charges. The two most serious charges involving possession of the Class A drugs methamphetamine and cocaine were also amended in a significant way at the case review hearing. This was obviously the first opportunity Mr Trower had to enter pleas to those charges. The Crown therefore concedes the Judge ought to have given Mr Trower a discount of 13 months, or 25 per cent, to reflect guilty pleas.

Discount for remorse, addiction issues and rehabilitation prospects

[17]   As Mr Simpkins points out, the Judge did not break down the manner in which he applied a discount to reflect these issues but instead applied a global discount of 20 per cent.

[18]   The level of discount to be given for these mitigating factors is very much a matter for the sentencing Judge’s discretion. Appellate courts will generally only intervene where the discount is plainly inadequate. The Judge acknowledged that Mr Trower had undertaken significant rehabilitation efforts and these warranted discrete recognition. However, I consider that a deduction of 15 per cent for addiction issues and associated rehabilitative prospects would be well within the available range, as would a discount of five per cent for remorse. I do not consider a global discount of 20 per cent to reflect these issues was manifestly inadequate.

Time spent on EM bail

[19]   Mr Simpkins argues that the Judge ought to have applied a discount of three and a half months to reflect the time Mr Trower was on EM bail rather than three months.3 Again, the level of discount to be applied for this factor is also within a sentencing Judge’s discretion. Ordinarily a discount of between one-quarter and one- half of time spent on restrictive EM bail conditions will be appropriate. At just over 40 per cent of the time spent on EM bail, I consider the discount of three months was well within range.

Methodology error

[20]   With respect to the learned Judge, it appears that there was a calculation error by including the uplift for previous offending into “stage one” of the Moses methodology.4 This led to the application of the discounts to a larger starting point and therefore applying larger overall discounts. Had the uplift for prior offending been included in the second stage, the sentence would have come to two years, five months’ imprisonment.

Conclusion

[21]   As both counsel acknowledge, a discount of 25 per cent to reflect guilty pleas should have been applied. If that occurred then the result is a final sentence of two years, three months’ imprisonment.

[22]   Had the methodology error not been made, this would amount to a reduction of two months. It is possible this could be justifiable as not mere tinkering on the basis that the entry of early guilty pleas should be recognised. However, in light of the one-month difference between the sentence actually imposed—two years, four months’ imprisonment—and the sentence had the full guilty plea discount been credited—two years, three months’ imprisonment—it cannot be said that the sentence was manifestly excessive.

3      Citing R v Bidois [2009] NZCA 426; R v Bishop [2009] NZCA 265; and Murray-MacGregor v R

[2011] NZCA 66.

4      Stuart v R [2021] NZCA 539 at [14]–[15], referring to Moses v R [2020] NZCA 296, [2020] 3

NZLR 583.

[23]   Had the result been below two years, I would not in any event have converted it to a sentence of home detention. Mr Trower now has a reasonably significant history of offending involving methamphetamine extending back to 2016. He also has several previous convictions for driving offences and firearms charges. These have resulted in him serving several sentences of imprisonment.

[24]   Mr Trower  also received a sentence of seven  months’ home detention on   28 June 2016 on a series of drugs, firearms and driving charges. He was then convicted of breaching his home detention conditions less than four months later and he also subsequently breached his post-detention conditions. These factors mean that Mr Trower was not a suitable candidate for a sentence of home detention even if the end sentence had been one of less than two years’ imprisonment.

Decision

[25]The appeal against sentence is dismissed.

Harvey J