Woods v The Queen

[2016] NZHC 1037

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-19 [2016] NZHC 1037

BETWEEN

MICHAEL DAVID WOODS

Appellant

AND

THE QUEEN Respondent

Hearing:	17 May 2016
Counsel:	C J Nicholls for Appellant F G Biggs for Respondent
Judgment:	19 May 2016

JUDGMENT OF CLIFFORD J

Introduction

[1]      Mr Woods was sentenced to two years and seven months’ imprisonment for supply of drugs and theft offending by Judge Butler on 9 March 2016 at the Hutt Valley District Court.1

[2]      Mr Woods appeals on the basis that the sentence imposed was manifestly excessive.

Background

[3]      Mr Woods pleaded guilty to one charge of theft,2 one representative charge of supplying a Class A controlled drug (methamphetamine),3 one representative charge

1      R v Woods [2016] NZDC 4069.

2      Crimes Act 1961, s 223(b). Maximum penalty 7 years’ imprisonment.

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

WOODS v R [2016] NZHC 1037 [19 May 2016]

of supplying a Class B controlled drug (Ritalin),4  and one representative charge of supplying a Class C controlled drug (cannabis plant).5

[4]      The agreed summary of facts presented at sentencing recorded that on 26

October 2015 Mr Woods arranged with an associate to utilise a vehicle with a tow bar.  The pair drove to an enclosed property in Belmont, Lower Hutt.   Mr Woods undid a chained gate in order to enter the property.   The pair located a trailer, attached it to the vehicle and removed it from the property.   The trailer was subsequently sold for approximately $500 and Mr Wood’s associate was paid $100 for the use of his vehicle.  The trailer is valued at $5000 and neither Mr Woods nor the associate had permission to enter the property and take the trailer.

[5]      In unrelated offending, Mr Woods sent 96 text messages between 16 June

2015 and 10 November 2015 in which he offered to supply at least of 24.2 grams of methamphetamine.   Mr Woods would buy a gram for around $500 to $700 and would sell it by the quarter gram for $200 to $250.  He would retain some to fuel his own drug habit.  Mr Woods supplied at least five grams of methamphetamine.

[6]      Mr Woods  supplied at  least  two  trays  (each  tray containing 10  pills)  of Ritalin.   Between 18 June 2015 and 2 October 2015 he sent 12 text messages in which he offered to supply Ritalin.

[7]      Mr Woods supplied at least one ounce of cannabis plant.  Between 16 June

2015 and 10 November 2015 he sent text messages in which he offered to supply cannabis plant.

[8]      Mr Woods has a limited offending history.  He has two previous convictions for driving whilst disqualified, and one Youth Court entry for violence for which he was admonished and discharged.   Mr Woods has no previous drug offending, nor

dishonesty offending.  When spoken to by the police, he admitted the facts outlined.

4      Section 6(1)(c) and s 6(2)(b). Maximum penalty 14 years’ imprisonment.

5      Section 6(1)(d) and 6(2)(c). Maximum penalty 8 years’ imprisonment.

Sentencing decision

[9]      Judge Butler stated at the outset of his decision that home detention was not an option for Mr Woods.

[10]     He recorded that in relation to the supply of methamphetamine, Mr Woods would be sentenced on the basis of what methamphetamine he actually supplied (five grams) and not what he offered to supply (24.2 grams).

[11]  Judge Butler acknowledged the pre-sentence report.    He noted the recommendation of a sentence of home detention and community work.  The report also noted Mr Woods’ previous drug use problems and Mr Woods wishing to address the issue through counselling sessions.

[12]    The Judge adopted a three year starting point for the methamphetamine offending.  The other drug offending was sentenced concurrently.  Two years was given for the Ritalin supply and one year for the cannabis, making a total of three years.

[13]     Six months was added cumulatively for the theft of the trailer.   The total starting point sentence was, therefore, three years and six months’ imprisonment.

[14]     A 25 per cent discount was given for the guilty pleas, leaving an end sentence

of two years and seven months’ imprisonment.

Grounds of appeal

[15]     Mr  Woods  advances  two  grounds  of  appeal  in  relation  to  the  sentence imposed being manifestly excessive.

[16]     The  first  is  that Judge  Butler  erred  in  adding  six  months’ imprisonment cumulatively for the theft charge.   Rather, the Judge should have concluded the sentencing exercise in respect of the drugs charges and only then gone on to consider the theft charge.

[17]     The second is that Judge Butler was incorrect when he failed to give a further discount for Mr Woods’ remorse and motivation to make changes.

Analysis

[18]     For Mr Woods, Mr Nicholls initially submitted that Judge Butler should have considered  the  appropriate  sentence  for  the  theft  charge  only  when  he  had determined the end sentence for the drug charges.   On the basis that Mr Nicholls argued for a non-custodial sentence on the drug charges, then similarly, at that point, a non-custodial sentence would have been available on the theft charge.   That approach to sentencing is not orthodox at all, and is at odds with the Supreme Court

decision in Hessell v R,6 the Court of Appeal’s decision in R v Clifford7 and a range

of other judgments.

[19]     I think this aspect of Mr Woods’ appeal should be determined by reference to the six month uplift imposed by the Judge for the one theft charge and whether, at the end of the day, that uplift resulted in a manifestly excessive sentence.

[20]     Looked at in isolation, the six month uplift does appear to be more than required.  In my view, something in the vicinity of two to three months would have been sufficient.

[21]     On  the  other  hand,  it  is  the  end  sentence  that  is  at  issue  here,  not  its component parts.

[22]     In  my view,  the  starting  point  sentence  for  the  drug  offending  alone  of between   three   and   four   years   could   not   have   been   challenged,   given   the circumstances  of Mr Woods’ drug offending.    The methamphetamine offending could have warranted a higher starting point, in terms of the R v Fatu analysis.8

Whilst the Judge agreed that the other drug offending did not require any uplift, and

could be sentenced concurrently, in my view it would also have been open to the

6      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

7      R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].

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

sentencing Judge to uplift the methamphetamine starting point by reference to the rest of the drug offending.

[23]     When seen in that light, I am not persuaded that the starting point sentence of three years and six months’ imprisonment is manifestly excessive.

[24]     Turning to the question of remorse, I do not think that there was anything in this case which called for the recognition of remorse in terms of the Supreme Court decision in Hessell.   Mr Woods did present as being genuinely remorseful for his offending, and committed to addressing its causes.   But in my view that does not constitute the extraordinary remorse which would call for an additional discount.

Result

[25]     Mr Woods’ appeal is, therefore, dismissed.

“Clifford J”

Solicitors:

Crown Law, Wellington