Wallace v The Queen

[2020] NZHC 2156

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2020-483-007

[2020] NZHC 2156

BETWEEN

ELETISE NATASHA WALLACE

Appellant

AND

THE QUEEN

Respondent

Hearing:	19 August 2020
Counsel:	B A Crowley and T W Luders for appellant J Mara for respondent
Judgment:	24 August 2020

RESERVED JUDGMENT OF DOBSON J

[1]    The appellant (Ms Wallace) was sentenced by Judge Crayton in the District Court at Whanganui on 17 May 2019 to a term of five years and four months’ imprisonment for drug dealing and possession and dishonesty offences.1 She has brought this appeal arguing that a lesser term of imprisonment should have been imposed.

[2]    The relevant events span a relatively lengthy period. The most recent delay is in pursuit of the present appeal. An appeal was originally filed in the Court of Appeal, but that appeal was abandoned when counsel accepted that a first appeal from the District Court sentencing was required to be in this Court. The notice of appeal to the High Court was inevitably out of time so leave is required to extend the time for doing so. No objection to an extension of time was raised and, in the absence of any prejudice to the position of the respondent, it is appropriate to grant leave and I do so.

1      R v Wallace [2019] NZDC 9288.

WALLACE v R [2020] NZHC 2156 [24 August 2020]

The offending

[3]    The offending occurred in two separate periods. The first (group one) occurred between 26 October 2016 and 9 February 2017. It involved:

·     three representative charges of offering  to  supply  methamphetamine  (81 grams of methamphetamine with 128 offers to sell);

·     one representative charge of offering to supply the class C controlled drug cannabis (offers to supply a total of 543 grams);

·     two charges of possession of a utensil for methamphetamine consumption;

·     one charge of possession of methamphetamine; and

·     nine charges of obtaining by deception (causing loss of $9,118.83).

[4]    Ms Wallace was on bail for the group one offending when a second set of offences (group two) occurred, between 11 August 2017 and 22 September 2017. These included:

·     one charge of offering to supply methamphetamine (19 offers to supply a total of 9.2 grams);

·     three charges of offering to supply class B controlled drugs morphine, Ritalin and Zopiclone; and

·     three charges of offering to supply class C controlled drugs Diazepam, cannabis and dihydrocodeine (14 offers to supply 51 grams of cannabis, three offers to supply 32 tablets of Diazepam).

[5]    Ms Wallace sought and was given a sentence indication on 28 February 2018. Having pleaded guilty, sentencing was deferred to afford Ms Wallace an opportunity to complete a drug rehabilitation programme in the Salvation Army Bridge programme. That involved her location being electronically monitored. She

participated in the Bridge programme from 19 June 2018 to 15 August 2018. During that time, she was suspected of breaching the terms of her electronically monitored bail, in circumstances where it later appeared that an apparent breach had incorrectly been signalled by the device.

[6]    In any event, she was brought back before the court, but before she could be sentenced she absconded in early October  2018  and  was  not  apprehended  until 23 April 2019. She appeared in court on 14 May 2019 and was sentenced on 17 May 2019.

The sentencing analysis

[7]    On sentencing, Judge Crayton referred back to and adopted the analysis undertaken for the sentencing indication. He identified a starting point of seven and a half years’ imprisonment plus uplifts, leading to an end point after credit for guilty pleas of five years and seven months’ imprisonment. In the sentencing indication, the Judge had acknowledged the prospect of further credit for personal mitigating circumstances and in the end allowed three months on that account, resulting in the end sentence of five years and four months’ imprisonment.

[8]    The Judge characterised Ms Wallace’s performance whilst in the Bridge programme in terms that:2

… your addiction maintained its control over your life and your choices.

[9]    The Judge acknowledged advice in general terms of a “sensitive claim” related to trauma that Ms Wallace had suffered in her past. That was referred to in materials available to the Judge and in particular was addressed in a letter from a trauma counsellor with whom Ms Wallace had begun to engage at the time of sentencing. Acknowledgement of that matter as a mitigating circumstance was included within the additional three months’ credit that was given by the Judge.

2      R v Wallace, above n 1, at [2].

Further evidence on appeal

[10]   Mr Luders (who presented the argument for Ms Wallace) had obtained from the Salvation Army Bridge programme the treatment summary, which was the record of Ms Wallace’s performance whilst she was in the programme. He annexed it to his submissions with an application that it be treated as further evidence in support of the appeal. Mr Luders acknowledged that the evidence was not fresh in the sense that it could have been made available at sentencing, had it been sought. However, he submitted that the report cast Ms Wallace’s performance whilst on the programme in a quite different light from that assumed by the Judge on sentencing, and that it ought to be taken into account to the extent that it supported his submission that the Judge had erred in that aspect of the sentencing analysis.

[11]   The Crown opposed the introduction  of  the  report  as  further  evidence.  Mr Mara submitted that it was not cogent or relevant in that it did not advance matters beyond the materials that had been available to the Judge on sentencing, and that it was indeed not new as it could have been available to Ms Wallace on sentencing.

[12]   Having heard argument, I am satisfied that it is appropriate for the Court to take the report into account in assessing the merits of the appeal. What it shows is that Ms Wallace was able to abstain from methamphetamine consumption throughout the period of approximately seven weeks, during which she was tested for drugs whilst in the programme. Throughout that period, she was using cannabis. Mr Luders submitted that that was an understandable crutch that someone beginning on the process of weaning herself off a methamphetamine addiction was likely to resort to.

Credit for personal mitigating features, addiction and rehabilitation

[13]   On Mr Luders’ analysis of the report, he submitted that had it been drawn to the Judge’s attention on sentencing, it would not have been possible for the Judge to opine that Ms Wallace’s methamphetamine addiction had maintained its control over her life during that period. Instead, on Mr Luders’ submission, a far more positive rehabilitative prospect should have been recognised, which would have justified a materially greater discount for this as a mitigating circumstance.

[14]   Mr Luders cited R v Wellington as support for the proposition that a discrete discount could be allowed to reflect the impact of the sentence on Ms Wallace’s family. In particular, Mr Luders referred to Palmer J’s reasons for granting a discount on this basis:3

You have expressed no remorse for your offending. Your family’s support is to be welcomed but is not a reason for a discount. Neither is the fact alone that you have young children. But it is open to me to consider the impact of  a sentence on your family and make some adjustment to recognise the likely impact on them of your incarceration. Children need fathers. I consider a discount of six months is justified for that.

[15]   In the sentencing decision, the Judge acknowledged that he had referred to Ms Wallace’s family in the sentence indication, but ultimately did not give credit for the impact of the sentence on her family.

[16]   The Court of Appeal’s decision in Zhang v R revisited the approach to sentencing in class A drug offending.4 The altered bands for starting points specified in Zhang cannot apply because the appeal was filed after the judgment in that case in respect of offending that was committed before it. However, counsel were agreed that the general approach to assessment of personal mitigating circumstances for those sentenced for class A drug offending could be taken into account. Adopting that approach, Mr Luders submitted that a lower sentence should result, given the Judge had commented in the sentence indication that “personal factors can have little play”.5

Crown response

[17]   The Crown position was that all relevant considerations had been taken into account and Ms Wallace could not establish that the end sentence was manifestly excessive.

[18]   In response to Mr Luders’ submission that a discrete discount should be granted due to the effect of the sentence on Ms Wallace’s family, Mr Mara submitted that the Judge was acutely aware of her familial situation and noted that credit would be available for the guilty plea and progress made at rehabilitation. However, while

3      R v Wellington [2018] NZHC 2196 at [48].

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

5 Sentencing indication at [24].

Ms Wallace’s offending included feeding a habit and supporting her family, the amounts involved were of a commercial quantity, and it was open to the Judge in the circumstances to give the sentence he did. The Crown therefore opposed any further discount for this factor on appeal.

[19]   Irrespective of whether the treatment report from the Bridge programme was taken into account, the Crown response was that no error could be made out. The starting points adopted and reduction for totality conformed with the then applicable guidelines from R v Fatu.6 The self-reported information from Ms Wallace and the Bridge programme report were inadequate to establish the necessary causal link between Ms Wallace’s addiction and the relevant offending, and that any greater credit she may have been entitled to for a marginally more positive outcome from the time spent in the Bridge programme should be cancelled out by virtue of her having absconded for some six months.

Analysis

[20]   I consider it appropriate to apply the approach to the personal circumstances of those convicted of class A drug dealing, as described in Zhang. It allows a somewhat fuller assessment of the impact of personal circumstances on both the circumstances of the offending and  the impact of the sentence.  I treat the  fact of  Ms Wallace’s admission to the Bridge programme and the terms of the treatment summary of her time there as sufficient to evidence a serious level of addiction to methamphetamine.

[21]   However, that does not make out the form of causal connection between such addiction and the offending as is contemplated in Zhang. The pattern of offending in groups one and two, and the personal circumstances described in the pre-sentence report (prepared in April 2018, so before Ms Wallace absconded), reveal lifestyle choices that led to a variety of offending.

[22]   The prospects of any more lenient sentence on rehabilitative considerations is necessarily negated by Ms Wallace’s conduct in absconding for a period of six months

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

until apprehended. Regrettably, that conduct has to be seen as taking her back to square one as a rehabilitation prospect.

[23]   Mr Luders made as much as he could of the other rehabilitative considerations, which he submitted were given inadequate credit. These included the impact of her lengthy imprisonment on her family, which, as discussed above, was acknowledged by the Judge but ultimately not seen as deserving of a discrete credit. I agree with the Judge’s assessment on that matter.

Outcome

[24]Accordingly, the appeal is dismissed.

Dobson J

Solicitors:

Public Defence Service, Wellington for appellant Crown Law, Wellington for respondent