Walker v The Queen
[2016] NZHC 2647
•7 November 2016
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2016-416-35 [2016] NZHC 2647
BETWEEN ROBERT JOHN WALKER
Appellant
AND
THE QUEEN Respondent
Hearing(AVL): 1 November 2016 Counsel:
M Sceats and C Scott for Appellant
F G Biggs for RespondentJudgment:
7 November 2016
JUDGMENT OF WILLIAMS J
Introduction
[1] Mr Walker pleaded guilty to three charges:
(a) selling cannabis (representative, five occasions);
(b) possession of cannabis for the purposes of sale; and
(c) supply/offer to supply methamphetamine (representative, eight occasions).
[2] Judge Rea in the District Court at Gisborne sentenced him to two years and
three months’ imprisonment.1
[3] Mr Walker appeals his sentence on the grounds that it was manifestly excessive. In particular, he submits:
1 R v Walker [2016] NZDC 19660.
WALKER v THE QUEEN [2016] NZHC 2647 [7 November 2016]
(a) the starting point for the overall offending was too high, because of a lack of regard to the totality principle;
(b)the Judge failed to give appropriate credit for time spent on EM and restrictive bail; and
(c) the Judge was wrong to disregard Mr Walker’s efforts at rehabilitation and his family circumstances.
Facts
[4] Mr Walker committed the cannabis offending together with his partner, Ms Haturini.2 They were subjects in a police undercover operation relating to cannabis and methamphetamine, called Operation Province. The operation started in July 2015 and ended as regards Mr Walker and Ms Haturini when their home was raided on 4 April 2016.
Methamphetamine
[5] Mr Walker alone sold methamphetamine from their address. On four separate occasions he sold a 0.1 gram bag of methamphetamine to an undercover officer from his house. On one occasion, he told an officer that he had larger amounts (quarters or grams) available.
[6] On 18 December 2015, an officer asked him for a quarter. Mr Walker sent him out to the garage where his associate was. That associate did not have any quarters, but sold the officer two point bags.
[7] On 7 March 2016, an officer asked Mr Walker for a quarter. He directed the officer to the garage, where an associate sold him a 0.2 gram bag.
[8] On 21 March 2016, an officer asked Mr Walker for a gram. Mr Walker told an associate to take the officer to a different address, but no purchase was made.
2 Both of the appellant’s cannabis convictions were charged jointly with Ms Haturini. She also had another charge alone for selling cannabis.
[9] On 22 March, an officer asked him for a quarter. Mr Walker said he was out of stock but the officer should come back later. He said he could get the officer a gram for $650.
Cannabis
[10] In September 2015, the couple sold five tinnies to undercover officers for $20 each. This was on five separate occasions: Ms Haturini sold three, and Mr Walker sold two (though they are still jointly charged on all counts). There were other tinnies available each time.
[11] On 4 April 2016, when the police raided the house, they found 51 tinnies and
84 grams of cannabis.
District Court sentencing
[12] The Judge summarised the offending and then characterised Mr Walker’s
offending as:3
…while you were operating at a lower retail end, you were in the business of supplying cannabis and methamphetamine to people who clearly you did not know well, as they were undercover police officers.
[13] The Judge understandably took the methamphetamine charge as the lead offending. Both sides were agreed two years was an appropriate starting point.
[14] He then uplifted that by a little more than one year to reflect the cannabis offending. The starting point for the cannabis offending alone, he said, could have been two years so a significant uplift was justified.
[15] The Judge then said of the one year uplift:4
I also think that has to reflect EM bail as well. You are entitled to some very small discount for that and that is built into the uplift, which in my view, could well have been greater.
3 Walker above n 1 at [8].
[16] The Judge declined to give a discount for Mr Walker self-referring to rehabilitative therapy, saying:5
Equally, the personal circumstance of addressing the drug issues that you have carries little or no weight in the circumstances here. They are all far too late in the day. They came after you had been arrested and charged and, in my view, they cannot be taken into account as lessening the sentence that should be imposed on you.
[17] He also declined to discount, or consider as a factor favouring home detention, that a sentence of imprisonment would mean Mr Walker was separated from his young daughter.
[18] So from a starting point of three years imprisonment, with 25 per cent discount for guilty pleas, the end sentence was two years and three months.
Submissions
Mr Walker
[19] Mr Sceats, for Mr Walker, submits that by adding an uplift of one year for the cannabis offending the Judge failed to have regard to the totality of the offending.
[20] Mr Sceats submits that there should have been a discount for around four months spent on EM bail and two months on restrictive (24 hour curfew) bail simpliciter. The District Court Judge said a discount for EM was built into the one year uplift for other offending but did not say how much it was. There should, Mr Sceats argued, be an EM bail discount of up to four months.
[21] He submitted that while personal mitigating factors are of limited mitigating value in drug dealing cases, there can still be discounts. The Judge should have given a discount for Mr Walker self-referring to rehabilitation counselling soon after the charges were laid. His original counsellor changed jobs so he found another counsellor and kept going. The reference from his counsellor was very favourable, it was argued.
[22] The Judge was also wrong, Mr Sceats argued, to ignore the effect a sentence of imprisonment would have on Mr Walker’s daughter for whom he is the primary caregiver.
Crown
[23] Mr Biggs for the Crown submits that the one year uplift for the cannabis offending was not excessive. The cannabis operation was undoubtedly commercial and would be in band two of R v Terewi.6 It would easily attract a two year starting point if sentenced alone.
[24] Nor is there any issue with a discount for EM bail, as the Judge plainly considered it and gave a small discount for it, albeit built into the uplift for cannabis offending. Mr Biggs argued that the cannabis offending could well have attracted a
16 month uplift so even with Mr Sceats suggested four month discount for EM bail (which, it was submitted, was too much) the Judge could still have got to a one year uplift.
[25] Mr Biggs submits that the Judge was entitled to refuse personal mitigating discounts. Appellate authority is clear that personal circumstances are less important than the need for deterrence and denunciation for serious drug offending. Further, as regards the rehabilitation, there is nothing in the facts to suggest the offending was driven by addiction so as to give rehabilitation more importance. Moreover, his efforts at rehabilitation must be seen alongside the PAC report showing lack of remorse and showing minimisation.
[26] As regards the daughter, there is appellate authority that only in some cases will domestic arrangements and childcare give rise to a discount. Mr Walker’s case is not exceptional.
Analysis
[27] There are three aspects of the decision that warrant close analysis:
(a) the uplift for the cannabis offending;
(b) the discount for bail conditions including EM bail; and
(c) the appropriateness of the discount for personal factors.
Uplift
[28] The Judge uplifted his starting point on the methamphetamine count by one year for the cannabis offending. He said he included a discount for EM bail within that. At the least this would have been two months, so in truth, the uplift for cannabis offending was no less than 14 months. The Crown submits that however constructed, a starting point of three years and two months for the overall offending would be within range.
[29] There is little appellate guidance on how much such uplifts should be. Totality is a broad, even intuitive concept within limits and that necessarily goes to the facts of each case. Examples help in framing the calculations:
(a) R v Kingi:7 8 g of methamphetamine (seven charges), 3.6 ounces of cannabis (one charge). Heath J took a global starting point of three years to reflect the totality.
(b)Davey:8 24 g of methamphetamine, 14 bags of pseudoephedrine, at least 51 g of cannabis, a pistol, and over $200,000 in cash. A starting point of four years and three months on the precursor charge, and an uplift of two and three quarter years for the rest of the offending. While the quantities are much larger and context more aggravating, the case is useful for commentary on uplifts and totality:
[25] However, the uplift I give you on your lead offence, that of possession of the pseudoephedrine, must reflect the totality of your offending. The Crown submits that an uplift of three and-a-half to four years is appropriate. Your counsel submits that an uplift of two years is appropriate.
[26] I adopt an uplift of two and three quarter years to bring the starting point to seven years imprisonment. While a substantial uplift is appropriate given the seriousness of the secondary offending, it is my view that the Crown's recommendation is too high. It is too close to the amount that would be appropriate if it were the lead charge. A starting point of seven years imprisonment falls between the recommendations of the Crown and your counsel and in my opinion appropriately reflects the totality of your offending.
(emphasis added)
(c) R v Vercoe:9 a “commercial … but relatively low level cannabis dealer” dealing on a daily basis, with around 38 g of cannabis found (though much was claimed by his partner); an unknown quantity of LSD tablets; and an unknown quantity of methamphetamine which he tried to trade for cannabis. The Judge took the cannabis offending as the lead offending as this was more extensive. He started with two years and nine months. The Judge noted that the Class A offending could attract a starting point of two to four years, but as the quantity was unknown and it was ancillary to his main cannabis offending, he gave an uplift of six months for both the methamphetamine and the
LSD. The Judge said:10
That means your starting point for all of the drug offending is three years and three months imprisonment. That is substantially less than the Crown submits, but it includes an allowance for totality as I have said.
[30] Here, the (I infer) 14 month uplift for small scale cannabis retailing is more than half what it might have attracted on its own. This is too much even seen in context. Although the couple regularly sold tinnies over more than six months, the facts remain that the charges reflect selling a tinnie (jointly) five times, and a small amount being found. An uplift of nine months would be at the very top end of acceptability. I conclude the Judge was in error in this respect.
Discount; EM bail
[31] There was a small discount for EM bail but, as I have said, how much is only able to be inferred. I do not criticise the Judge for taking the in-the-round approach he did. After all, it is the end sentence that ultimately counts. But I must now recalculate what would have been an appropriate reduction. Mr Walker spent four months on EM bail and two months restrictive bail. A discount for EM bail must be given as per s 9(2)(h) of the Sentencing Act. A discount of three months is appropriate, even moderate in light of the approach taken by the Court of Appeal to
EM bail discounts in Hohipa v R.11 I consider that the inferred discount of two
months was too low.
Discount: Personal factors
[32] What then is the place of personal mitigating factors in commercial drug offending? In Terewi, the Court of Appeal stated that:12
As with any drug offending for the purpose of profit making, the personal circumstances of the offender whose activities fall within Categories 2 and 3 are usually not to be given much significance in the sentencing process. The fundamental requirement is that the sentence imposed should act as a deterrent to other persons minded to engage in similar activity.
[33] The Supreme Court in Jarden v R said:13
[12] … As the Courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.
[34] The Supreme Court also commented on family circumstances as a mitigating factor:14
The family situation of a convicted person, including where applicable the well-being of an offender's children, will always be among the personal circumstances to which regard is had by a sentencing Judge. … What however must be recognised is that the family situation of an offender, including the well-being of the offender's children, is only one of a number
11 Hohipa v R [2015] NZCA 485.
12 Terewi above n 6, at [13].
13 Jarden v R [2008] NZSC 69 [2008] 3 NZLR 612 (footnotes omitted).
of relevant factors. How much weight it can be accorded in any particular case depends on its circumstances.
[35] In fact, personal mitigating factors are increasingly accepted as relevant in commercial drug offending, although discount levels are contested. I accept of course that the war-on-drugs language of denunciation and deterrence is powerfully present in earlier appellate decisions including Terewi itself. I accept also that such language has been regularly resorted to since. But it is equally clear that judicial attitudes to personal factors in sentencing have evolved since 1999. There are now many appellate decisions in which these factors have been found to justify discounts. Accordingly, successful rehabilitation has regularly been seen as important in drug
offending especially at the retail level.15 I agree with this sentiment. Self-referral to
appropriate programmes and perseverance toward the goal of rehabilitation in response to drug offending ought to be encouraged even if there is a self-serving element in the steps taken. Although the PAC report suggested the appellant had yet to accept full responsibility for his offending, the appellant’s drug counsellor expressed confidence that after seven counselling sessions, the appellant was now able to “independently manage his drug taking habit and related issues”. After that much counsellor-client contact, I consider the counsellor to be in a better position than the Probation Service to assess the appellant’s prospects. In my view, a modest discount for these efforts is appropriate.
[36] As to a discount for childcare, the circumstances of Mr Walker’s case do not go so far as those in Jarden. Separation from parents is an unfortunate but necessary consequence of imprisonment. It might be more relevant to the question of whether
home detention should be granted, should that be an option.
15 In R v Hill [2008] NZCA 41, [2008] 2 NZLR 381, the Court of Appeal did not disturb a 35 per cent discount for good progress towards rehabilitation – and further took rehabilitation into account in imposing home detention. In discussing a Crown appeal in R v Kennedy [2011] NZCA 109, the Court of Appeal said it would have allowed a discount of six months from a three and a half year starting point for exceptional steps towards rehabilitation. See also R v Guthrie [2008] NZCA 439; R v Banaba [2016] NZCA 122; R v Stempa [2008] NZCA 254; R v Beckham [2012] NZCA 503, [2013] 1 NZLR 613.
Conclusion
[37] The errors in the sentence as constructed mean I must now conduct the sentencing exercise afresh to see if the end sentence was manifestly excessive taken overall.16 I would construct the sentence as follows:
(a) two year starting point for methamphetamine offending (24 months); (b) nine month uplift for cannabis offending (33 months);
(c) three month discount for EM bail (30 months);
(d) one month discount for rehabilitation efforts (29 months);
(e) seven month discount for guilty plea (nearly 25 per cent); and
(f) end sentence of 22 months’ imprisonment.
[38] That is a difference of five months from the sentence imposed. To adjust for this difference would not be tinkering.
[39] The appeal is allowed. The sentence is quashed.
[40] A sentence of 22 months’ imprisonment is substituted. There appears to be no application for home detention. Leave is reserved, should the appellant wish to apply for home detention. In light of s 6(4) of the Misuse of Drugs Act 1975, no indication as to likelihood of success is to be taken from the reservation of leave.
Williams J
Solicitors:
M Sceats, Barrister, Gisborne
Crown Law, Wellington
16 Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
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