Whale v The Queen

[2020] NZHC 3469

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-000123

[2020] NZHC 3469

BETWEEN

QUINTIN BRETT WHALE

Appellant

AND

THE QUEEN

Respondent

Hearing:	14 December 2020 (Heard at Tauranga)
Appearances:	Craig Tuck and Thomas Harre for the Appellant Justine Sutton for the Respondent
Judgment:	21 December 2020

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 21 December 2020 at 12:30 pm.

Registrar/ Deputy Registrar Date:

WHALE v R [2020] NZHC 3469 [21 December 2020]

Introduction

[1]    Mr Whale pleaded guilty to one charge of possessing methamphetamine for supply.1 Judge P G Mabey in the Tauranga District Court on 16 September 2020 sentenced him to seven years’ imprisonment.2

[2]    He now appeals that sentence on the sole ground that the Judge failed to take into account Mr Whale’s addiction as a mitigating factor.

The offending

[3]    On 27 March 2019, the Police executed a search warrant at Mr Whale’s address. Located in a locked tool cabinet was approximately 915 grams of methamphetamine packaged into 33 self-sealing shrink-wrapped bags. Mr Whale was the only person with a key to this cabinet. Stored with the methamphetamine were electronic scales, shrink wrap, a shrink-wrap sealing machine and $3,200 in cash.

[4]    Also found at Mr Whale’s home were ingredients connected to manufacture. Mr Whale has been charged with offences relating to this aspect and is defending them.

Previous criminal history

[5]    Mr Whale is 41 years’ old. He has nine previous convictions, none of which relates to methamphetamine or serious offending. These include possession of an offensive weapon (x 2), breaching community work, breaching a liquor ban (x 2), receiving stolen property (x 2), theft of a motor vehicle and possession of cannabis.

Reports

[6]    The PAC report, prepared on 25 June 2020, records Mr Whale as saying he started using methamphetamine in 2018. This eventually reached the point where he was using 4 to 5 grams per day. He admitted that he started selling methamphetamine to friends. He said this was only to cover his costs. He was adamant that he was not in possession of the methamphetamine for supply. He claims he was looking after it

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

2      R v Whale [2020] NZDC 19043.

for an associate and believed he was “set up”. The report writer described Mr Whale as a “business minded individual” and given the potential revenue that may be made selling and distributing methamphetamine, his risk of reoffending in a similar way was assessed as medium. The report writer discussed his background, noting that he had  a difficult childhood. He was adopted into a turbulent family environment. By 2018, both he and his wife were using methamphetamine daily. He regretted the effect this had on his children. He told the report writer that he was in a new relationship with someone he met at the Hamner Clinic. She confirmed to the writer that she offers her full support.

District Court decision

Sentence indication

[7]    On 11 November 2019 Judge I D R Cameron in the Tauranga District Court gave Mr Whale a sentence indication with a 10 year starting point.3 The Judge considered Mr Whale had played a significant role in the offending and left open the possibility of discounts being applied for further mitigating factors raised at sentencing.

[8]    This indication was rejected by Mr Whale. Mr Whale then attempted to seek a further sentence indication from Judge P G Mabey on 18 May 2020. He properly declined to give one. He noted that should Mr Whale come before him for plea or sentence, he would adopt the indication given by Judge Cameron.  Following this  Mr Whale entered a guilty plea in June 2020.

Sentencing

[9]    Judge Mabey referred back to the sentence indication and, as he had promised, set a 10 year starting point.

[10]   In regard to mitigating factors, the Judge considered Mr Whale’s remorse, addiction and cultural background. He examined the s 27 report, a psychological report and a letter written by Mr Whale expressing his remorse which I, too, have read.

3      R v Whale DC Tauranga CRI-2019-070-001421, 11 November 2019.

[11]   The Judge noted that Mr Whale’s statements to the PAC report writer, effectively denying his offending, were at odds with his letter of remorse. His letter referred to attending 11 to12 sessions at the Hamner Clinic for his addiction, but when the Crown checked this it was found that Mr Whale had exited the course. The Judge considered that Mr Whale’s remorse was not genuine because of his inconsistent statements. He thus declined to give him credit for this factor.

[12]   As for addiction, the Judge considered that the supporting evidence was entirely based on Mr Whale’s own reports. The Judge noted the Court of Appeal’s observations in Zhang v R that discounts for addiction must be based on persuasive information.4 The Judge noted that Mr Whale had worked successfully as a mechanic in Australia for 10 years before returning to New Zealand to have closer contact with his children. He invested the funds from the sale of his Australian home in a failed venture. He claims he took to drugs, particularly methamphetamine, as a form of self- medication to deal with the trauma of his financial loss and his feelings of inadequacy in not being able to care for his family. The Judge accepted that “once [Mr Whale] got on the methamphetamine train it was hard to get off” and that he may well have developed a dependency. However, linking that to his offending was “a different matter”.

[13]   Mr Whale’s offending was clearly indicative of commercial trading without any suggestion of personal use. The Judge determined that even accepting Mr Whale was a user at the time, the offending reflected determined and premeditated commercial drug activity involving a large quantity of methamphetamine. It was packaged in such a way it was clearly for market and for commercial gain. The Judge considered Mr Whale was someone who dealt in drugs to make money and, in the particular circumstances, a lot of money. He did not accept that addiction played a significant part in the offending.

[14]   As for the factors outlined in the s 27 report, the Judge accepted that Mr Whale had experienced a rough upbringing and to his considerable credit was able to overcome those adversities after leaving school. However, the Judge considered that

4      Zhang v R [2019] NZCA 507 at [147].

had he not lost his money on returning from Australia, Mr Whale would still be doing well. He concluded that the only real interpretation available was that the offending was purely commercial; there was no link between the matters recorded in the s 27 report and the offending.

[15]   A 20 per cent discount was given for the guilty plea and a further 10 per cent to acknowledge that Mr Whale “may well be expressing a genuine desire to be drug free when [he] can be and giving some recognition for the possibility that when [he says he has] seen the light then [he has]”. The end sentence came to seven years’ imprisonment.

Approach to appeal

[16]   I must allow the appeal against sentence if I am satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.5 The focus is on the sentence imposed, rather than the process by which it is reached.6 Although the sentence does not need to be “manifestly excessive”, this is a helpful concept when considering the seriousness of the error.7

Submissions

Appellant

[17]   Mr Harre, for Mr Whale, who carried the oral argument before me, submits that the Judge incorrectly took the view that because Mr Whale was being sentenced for commercial scale offending, evidence of his addiction was not relevant. An inference was available on the evidence that Mr Whale’s ability to exercise rational choice was materially diminished by his addiction.

5      Criminal Procedure Act 2011, s 250.

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7 At [35].

[18]He referred to the following cases where a discount was given for addiction:

(a)In Roberts v R, the appellant had manufactured up to 42 grams of methamphetamine.8 Woolford J found that he played a significant role in the manufacture, but noted that he was paying a debt and had faced violence and pressure when he sought to leave the operation. Woolford J held that the appellant was to be commended for his efforts to tackle his addiction as demonstrated by the reports provided by his counsel. There was evidence that he took methamphetamine from each batch he manufactured for his own use. A 15 per cent discount was given for the appellant’s causative addition and his ADHD.9

(b)In Roulston v R the appellant was a small-time commercial manufacturer and an addict who manufactured methamphetamine to support his habit.10 The quantity was 113 grams. His addiction was evidenced by his PAC report assessment, and his Police interview proceeded on the basis that he could not financially support his drug habit without resorting to manufacturing. This was balanced against the commercial features of the offending. A 10 per cent discount was given for his addiction.11

[19]   Mr Harre also refers, in contrast, to cases where the Court has not given a discount for addiction:

(a)In Parkes v R, the offending involved at least 563.8 grams of methamphetamine.12 The Court of Appeal accepted that he was addicted to methamphetamine and had taken constructive steps towards addressing the underlying causes of his addiction. However, it was not accepted that the commercial drug offending engaged in by Mr Parkes was caused by his addiction. No discount was given.

8      Roberts v R [2019] NZHC 3319.

9 At [36].

10     Roulston v R [2020] NZCA 255.

11 At [42].

12     Parkes v R [2020] NZCA 203 at [59].

(b)In Whiteford v R, the quantity of methamphetamine was 53 grams.13 It was accepted that Mr Whiteford was addicted during the period of offending. However, it was held it was a commercial operation motivated by profit, rather than addiction, and that it was not a case in which deterrence could be discounted because treatment would address the risk of reoffending.14

(c)In Brown v Police (a cannabis case) the Court found that the offending was a sophisticated operation pursued by Mr Brown primarily for financial gain, and that therefore no discrete discount for addiction was justified.15

[20]   Mr Harre submits that the Judge was wrong to describe the offending as a “determined and premeditated commercial drug dealing activity”. He says there was no evidence (nor allegation) of actual supply by Mr Whale. There was no evidence of profit expected by Mr Whale. On the facts, Mr Whale was simply in possession of a relatively large quantity of methamphetamine.

[21]   Mr Harre notes that what is required to show addiction, varies from case to case. He notes that in Govender v R, the Court considered that uncorroborated self- reported information in the PAC report and a letter from the Salvation Army referencing proposed participation in the Bridge Programme did not discharge the required evidential burden of proof of addiction.16

[22]   Mr Harre then submits that the issue of causation and addiction following Zhang is unresolved and asks whether the relationship between addiction and offending should be assessed in terms of a “but for”, or “material contribution” view of causation. He invites the Court to approach the matter in terms of a “material contribution” assessment and submits that there was ample evidence before the Court

13     Whiteford v R [2020] NZCA 130.

14 At [27].

15     Brown v Police [2019] NZHC 3365 at [32].

16     Govender v R [2019] NZHC 3212 at [17]. Mr Tuck submissions also refers to the ‘contrasting’ point in Dunn v Police [2020] NZHC 316 but that case reiterates the same requirement.

that Mr Whale’s addiction materially diminished his ability to make rational choices about his involvement in the wider commercial operation.

[23]   Mr Harre proposes that a 10 per cent discrete discount should have been available.

Respondent

[24]   Ms Sutton, for the Crown, submits that the correct starting point was adopted under Zhang.

[25]   She also submits that Mr Whale received adequate credits. She points out that the 20 per cent guilty plea discount was generous. The Crown assumed responsibility for the prosecution in April 2019. In November 2019, Mr Whale rejected a sentence indication. A guilty plea was entered (to the same charge and summary of facts that he sought a sentence indication on in November 2019) in June 2020, some seven months later. She submits that no discount should have been given for addiction because there was no supporting evidence of his addiction and no material from which to infer that there was a connection between Mr Whale’s addiction and offending. She also submits that Mr Whale’s personal background did not warrant a discount.

Discussion

[26]   To determine whether the overall sentence is appropriate, it is necessary to consider the starting point and discounts set by the Judge.

Starting point

[27]   Mr Whale’s offending fits well within Zhang’s band four: amounts of between 501 grams and 2 kilograms attracting a starting point of between eight and 16 years’ imprisonment.17

17     Zhang v R, above n 4, at [125].

[28]I have considered the starting point set in other similar cases:

(a)In Miller v R, the quantity was 905 grams.18 Mr Miller had an operational role in the offending and was substantially motivated by profit. The starting point of 11 years and six months was held to be appropriate on appeal.

(b)In Moses v R, the quantity was 965 grams.19 The appellant was assessed as having a moderate role; more than a retail dealer and her involvement was motivated by financial gain, rather than her addiction. The starting point of 11 and a half years’ imprisonment was upheld on appeal.

(c)In Martin v R, the offender was running a solo operation for commercial gain.20 The quantity was 600 grams. It was held that he fell into the middle of band four and the starting point was set at 12 years’ imprisonment.

[29]   On that analysis it can be seen that the 10 year starting point adopted by the Judge was generous. Given Mr Whale’s role he fits either in the lower, “leading” level or the higher, “significant” level. Either way, the starting point could easily have been up to two years greater than that set.

Addiction

[30]   Addiction may be a mitigating factor where there is a causal link between offending and the offender’s addiction.21 The rationale for treating addiction as a mitigating factor is that addiction may compromise an offender’s rational choice to offend and this, in turn, reduces the deterrent objectives of sentencing.

[31]   However, a discount for addiction must be based on persuasive evidence, as opposed to self-reporting. The onus of proof (to the civil standard) lies on the offender

18     Miller v R [2020] NZCA 131.

19     Moses v R [2020] NZCA 296.

20     Martin v R [2020] NZCA 318.

21     Zhang v R, above n 4, at [55].

to  establish the  extent  and  effect of addiction.   On the question of addiction and commercial-level offending, the Court stated:22

“We accept that non-causative addiction will be of little mitigatory relevance… We also accept that commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice, which is what diminishes culpability and justifies discounting the sentence. But we would not exclude the possibility of a case in which that impairment co-exists with more substantial offending.”

[32]   The quantities of methamphetamine involved in Roulston and Roberts were significantly more modest than the present (respectively, 42 and 113 grams). In Roberts, Woolford J was satisfied that the appellant’s addiction was causative of the offending and the power dynamic in relation to the methamphetamine operation was such that the appellant was not involved of his own volition anyway. This can clearly be contrasted with the present case where, as noted by the Judge, Mr Whale was acting with the sole intention of making money. Mr Whale’s operation was on an entirely different scale. The following cases illustrate how the Court of Appeal views the link between addiction and methamphetamine offending:

(a)In Miller the Court was satisfied from a Hospital Addictions Service Report, a psychological assessment report and the appellant’s criminal history that he was a chronic methamphetamine addict.23 A 19 per cent discount was given for the appellant’s addiction and rehabilitation prospects. The Court was satisfied that Mr Miller had insight into the drivers of his offending and the reports showed a clear nexus between his offending and addiction, and his willingness to engage in rehabilitation.

(b)In Hall v R, the appellant  held  a  leading  role  in  manufacturing  556 grams of methamphetamine.24 There was no available evidence to establish he had diminished culpability because of his addiction and the quantity of methamphetamine produced was far more than necessary to

22 At [147].

23     Miller v R, above n 18 at [15].

24     Hall v R [2020] NZCA 183.

provide for his personal needs.25 Mr Hall had a significant role in the offending. Text messages disclosed he was a user but there was no evidence he had diminished culpability.

(c)In T’oa v R, it was clear that the appellant was genuinely addicted, but this was overborne by the magnitude of the offending where there was

2.2 kilograms of methamphetamine involved.26

(d)In Parkes v R the quantity was 563 grams and the appellant performed a leading role.27 It was accepted that he was addicted to methamphetamine and had taken constructive steps towards addressing the underlying causes of his addiction. However, his offending was motivated by his desire to make a profit.

[33]   It is not helpful in the present case to set hard and fast principles as to what constitutes persuasive evidence of addiction. As the caselaw reveals, the factual and evidential variations from case to case are simply too broad and complex to permit such an approach. Addiction may be evident from the offender’s criminal history, or from the facts of the case, or it may be necessary to have supporting third-party evidence if the circumstances are more opaque. Here, the PAC report makes reference to Mr Whale’s dependency, but this relies on Mr Whale’s self-reporting. Further, even if he was a methamphetamine addict, there is nothing before me to persuade me that he had had diminished culpability due to addiction.  As noted in the PAC  report,   Mr Whale is a “business minded” individual. The offending was plainly a commercial enterprise. Mr Whale was found in possession of a significant quantity of methamphetamine, packaged as for supply, inside a locked tool cabinet. I agree with Ms Sutton that the packaging suggests the supply was intended for wholesale dealers and not retail or street level customers. There is nothing before the Court to suggest that Mr Whale was not motivated by the significant profits he could make in selling methamphetamine. Although he may have been a user, Zhang specifically states that those who offend for commercial gain will not get much succour from the judgment.28

25 At [38].

26     To'a v R [2020] NZCA 187.

27     Parkes v R [2020] NZCA 203.

28     Zhang v R, above n 4, at [25].

Other discounts

[34]   For completeness, I record that there were no circumstances advanced in reliance on the s 27 report warranting a discrete discount. The adversity experienced by Mr Whale in his early life does not help to explain his offending. A discount can only be given for "traceable linkages between that deprivation, the offender and the offending".29 Here there is no discernible causative link.

[35]   Further, given the date of the first sentence indication and the much later plea, a 20 per cent guilty plea discount was generous in the circumstances.

[36]   Similarly, the 10 per cent discount given by the Judge to recognise Mr Whale’s potential for rehabilitation is more than adequate.

[37]   For these reasons I am satisfied the sentence was not manifestly excessive and the sentence appeal should be dismissed.

Result

[38]The appeal is dismissed.

Moore J

Solicitors:

Mr Tuck, Tauranga Crown Solicitor, Tauranga

29     Arona v R [2018] NZCA 427 at [59].