X v The King
[2023] NZHC 2770
•3 October 2023
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-148
[2023] NZHC 2770
BETWEEN X
Appellant
AND
THE KING
Respondent
Hearing: 28 September 2023 Appearances:
R J T George for Appellant
A R T Garrick for Respondent
Judgment:
3 October 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 3 October 2023 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
X v R [2023] NZHC 2770 [3 October 2023]
Introduction
[1] On [redacted], X was sentenced by Judge Hix in the District Court1 to 22 months’ imprisonment in respect of charges for supplying methamphetamine,2 offering to supply methamphetamine,3 possession for supply,4 receiving,5 possession of a firearm,6 and possession of a pipe.7
[2] X appeals this sentence on the grounds that the Judge imposed a manifestly excessive sentence by:
(a)adopting a starting point that was too high; and
(b)applying inadequate credit for mitigating circumstances.
Background facts
[3] Police obtained evidence of multiple communications by X over a period of eight months relating to the supply of methamphetamine. The total amount supplied or offered for supply was calculated to be at least 31.62 grams. I note though, that on a number of occasions the amount was undetermined and therefore no amount incorporated in this total or, where the amount was considered to be in a range, the total assumes it was at the lowest end of the range.
[4] After executing a search warrant at X’s address, Police found used methamphetamine utensils, 10.17 grams of methamphetamine, an “E-Bike” which had previously been reported as stolen, and a .177 calibre Gamo Air Rifle. They also found a BB gun pistol in the bathroom, along with electronic scales, cash, methamphetamine utensils and new zip lock bags.
1 [Redacted].
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2); maximum penalty life imprisonment.
3 Section 6(1)(c) and (2); maximum penalty life imprisonment.
4 Section 6(1)(f) and (2); maximum penalty life imprisonment.
5 Crimes Act 1961, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
6 Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment or a fine not exceeding
$5,000 or both.
7 Misuse of Drugs Act, above n 2, s 13(1)(a) and (3); maximum penalty one year’ imprisonment or a fine not exceeding $500 or both.
District Court decision
[5] Judge Hix adopted a starting point for the methamphetamine offending of three years and three months’ imprisonment, placing X in the lower end of the second band in Zhang v R.8 He noted the methamphetamine offending was “an ongoing pattern” as the communications obtained by Police covered a period of approximately seven months and that the “flavour” of the messages showed X apparently encouraging people to engage in methamphetamine use, as well as an element of coercion to obtain payment from some people.9 This, the Judge noted, made X “a bit more than a passive supplier”.10 The Judge assessed X’s role as a retailer at the street level but not “right at the bottom”, rather finding X to be higher up in the chain given his knowledge of the organisation and his overall involvement.11
[6] The Judge then gave an uplift of six months for the remaining charges, noting the firearm was concerning due to it being found in conjunction with the methamphetamine offending. This resulted in an overall starting point of three years and nine months’ imprisonment (45 months). The Judge, having regard to totality, felt this starting point was correct, considering as well that he had consolidated many individual charges into representative ones.
[7] The Judge then considered X’s personal circumstances, beginning with relatively recent convictions for possession of methamphetamine for supply for which a sentence of two years’ imprisonment was given. Part of the rationale for that sentence was to enable X to take up rehabilitative options. The Judge adopted an uplift of four months to reflect this recent similar offending.
[8] In terms of mitigating factors, the Judge gave a global discount of 60 per cent, specifying that 15 per cent was for guilty pleas. The Judge declined to give a higher guilty plea discount, noting the police case was relatively strong. Furthermore, this was not a case where victims were saved the trouble and trauma of the trial process, rather only the police were saved the time and effort of going through a court case.
8 Zhang v R [2019] NZCA 507.
9 R v X, above n 1, at [3]-[4].
10 At [6].
11 At [7].
[9] The Judge acknowledged the impact addiction had as a driver of this offending and also past trauma-inducing experiences which were identified in Dr Lim’s psychiatric report, although he did not identify the extent to which these were reflected in the discount given. The other significant and unquantified aspect of the sentence exercise was the discount given for assistance to authorities. The submissions on this issue and all other references to it, were suppressed, and not expressly referenced in the judgment given the risk this information posed to X.
[10] The Judge then netted off the four month uplift to the starting point and the 60 per cent discount (or 27 months), to reach an end sentence of 22 months’ imprisonment.12
[11] The Judge declined to convert the sentence to home detention as no address had been proposed by X, nor did he find it appropriate to give a non-custodial sentence. The Judge did, however, give leave to apply for home detention to a Corrections approved rehabilitation programme.
Principles on appeal
[12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.13 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.14 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.15
12 I note that counsel initially thought these calculations contained an arithmetical error. They now both accept that the Judge correctly took the uplifts and discounts from the starting point of 45 months as required by the two step process in Moses v R [2020] NZCA 296.
13 Criminal Procedure Act 2011, ss 250(2) and 250(3).
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].15 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[13] Mr George, for X, submitted the starting point of three years and three months’ imprisonment for the methamphetamine charges was too high. He acknowledged that X’s offending placed him at the low end of band two in the guideline judgment of Zhang v R, with a starting point of between two and nine years’ imprisonment.16 However, he also emphasised that the indicia of the “lesser” and “significant role” category identified in Berkland v R “are a tool to aid evaluation, not a straitjacket”, and the Court should look at X’s role holistically.17 He said X’s offending could not be described as sophisticated, and there was limited evidence of commerciality. The small amounts of methamphetamine offered or actually supplied over the seven month period were consistent with Dr Lim’s report which noted X’s substance use disorder “is of a severe nature… [and] caused significant disruption in his employability, and entrenched him in a cycle of drug-use and drug-peddling”.
[14] Mr George cited Tapine v R where the appellant was convicted of methamphetamine offending involving 30 grams, and a starting point of three years’ imprisonment was adopted.18 In that case, Cooke J found the appellant was motivated by addiction, but there were other factors that elevated the appellant’s role, including the quantity of methamphetamine found was of “reasonably high value”.19 He possessed particular equipment which indicated a role beyond a mere distributor, and he had a firearm and a knife, suggesting that the dealing activities required protection.20 Given the parallels with X’s methamphetamine offending, Mr George submitted the starting point should, likewise, be three years’ imprisonment.
[15] Mr George did not contest either the six month uplift for the remaining charges nor the four month uplift to recognise X’s previous convictions.
16 Zhang v R, above n 8, at [125].
17 Berkland v R [2022] NZSC 143 at [65].
18 Tapine v R [2020] NZHC 977.
19 At [20].
20 At [20].
[16] The second aspect of the appeal challenged the adequacy of the discounts. Mr George argued for a 75 per cent discount made up of 25 per cent for guilty pleas, 35 per cent for assistance to the relevant authorities and 15 per cent for X’s personal background.
[17] In terms of the guilty plea discount, X entered guilty pleas at the list stage of proceedings immediately following resolution discussions with the Police. This included X participating in an interview with Police where he disclosed significant information about some of his associates’ offending. Mr George relied in particular on Millar v R, where the Court of Appeal, while noting that the strength of the prosecution case was considered relevant to the guilty plea discount, said this did not mean the stronger the prosecution case, the lower the guilty plea.21 The focus was on the genuineness of the offender’s acceptance of responsibility and in this regard, X accepted responsibility at the earliest stage. Furthermore, Dr Lim’s report supported X being genuinely remorseful for his offending.
[18] The next issue was the discount for assistance to authorities. Here, Mr George explained that X had provided significant information to the Police including the identity of his supplier and details about the sourcing, supply and storage of methamphetamine. Mr George was later informed that despite the information having evidential value, it would not be acted upon due to the significant concern Police had for X’s safety.
[19] In support of a more significant discount for X’s assistance to authorities, Mr George cited R v Hadfield, where the Court of Appeal gave a combined 60 per cent discount for Mr Hadfield’s early guilty plea and assistance to authorities.22 Mr George also cited Whatuira v R which considered Hadfield and held “where the information has real value, in that it is precise, accurate, and of use to authorities in the apprehension of criminality, a substantial discount may be justified”.23 A 40 per cent discount for assistance to authorities and guilty pleas was considered appropriate in that case. Mr George submitted X’s information was clear and accurate and,
21 Millar v R [2019] NZCA 570 at [36].
22 R v Hadfield CA337/06, 14 December 2006.
23 Whatuira v R [2017] NZHC 1903 at [22], citing R v Hadfield, above n 22, at [28].
importantly, had placed himself in grave danger in the process. As such, Mr George submitted a 35 per cent discount would be appropriate for assistance to authorities alone.
[20] Mr George then turned to discounts for personal deprivation. In Zhang, the following factors were considered “particularly germane to methamphetamine offending”:24
(a)addiction;
(b)mental health;
(c)duress or undue influence; and
(d)social, cultural and economic deprivation.
[21] The Court of Appeal held a discount of up to 30 per cent is available for addiction depending upon the extent to which it mitigates moral culpability,25 and observations made by the Court of Appeal in L v R, noted by Gordon J in R v H, showed discounts for mental health had ranged between 12 and 30 per cent.26
[22] In terms of addiction, Mr George submitted this was a causative factor of X’s offending, supported by Dr Lim’s report, as were his other background factors including “a history of sexual abuse in X’s teenage years, issues surround his adoption which led to a direct development of substance abuse issues, PTSD and generalised anxiety disorder”. Additionally, Mr George referred to Dr Lim’s observations that X was genuinely remorseful for his offending and wants the opportunity to receive appropriate therapy, noting steps already taken such as starting a new business. Mr George submitted a discount of 15 per cent would be appropriate to recognise these factors were an operative cause of his offending and his motivation to address these causes.
24 Zhang v R, above n 8, at [137].
25 At [149].
26 R v H [2021] NZHC 2116 at [26] citing L (CA719/2017) v R [2019] NZCA 676 at [48].
[23] To summarise, Mr George submitted a starting point of 42 months’ imprisonment on all charges is appropriate, as is a four month uplift for previous convictions. Mr George submitted a total discount of 75 per cent on the starting point is appropriate. Given X has served seven months in custody, the equivalent of a 14-month sentence, Mr George submitted an end sentence of community detention and intensive supervision would be appropriate. This would address X’s rehabilitative needs, while still having the oversight provided by intensive supervision. As well, Mr George recommended imposing a drug/alcohol condition.
Respondent’s submissions
[24] Ms Garrick, for the Crown, submitted the starting point was within the available range and the total discount comprising reductions for guilty plea, assistance to authorities and personal circumstances was appropriate.
[25] In respect of the starting point, Ms Garrick referred to Joyce v R wherein the Court of Appeal adopted a starting point of four years’ imprisonment for possession of 28.35 grams of methamphetamine for supply and charges of possession of cannabis.27 The appellant in that case was considered to be an independent retailer selling methamphetamine to finance his drug habit and meet his living costs. The appellant’s addiction was not to the extent that it diminished his culpability and the presence of firearms provided an indicator as to the level of the his dealing activities. Ms Garrick submitted the District Court Judge’s starting point is in line with this case.
[26] Ms Garrick also considered the case of Tapine v R, relied on by the appellant, supports her submission that the starting point here is within the available range.28 First, she points out that the current case involves more methamphetamine than in Tapine. Like Mr Tapine, the firearms and other equipment found support X being more than a mere street level dealer. He had access to sufficient quantities of methamphetamine to generate an income beyond what was required for his drug habit. He could also package to order and alter the price if needed. Furthermore, the information he provided to the Police indicates he was aware of the scale of the
27 Joyce v R [2020] NZCA 124.
28 Tapine v R, above n 18.
operation. Ms Garrick said X was appropriately assessed to be between the lesser and significant categories in terms of role. A sentence of three years three months’ imprisonment was therefore consistent with Tapine and within the available range.
[27] Ms Garrick went on to submit that the uplift of six months’ imprisonment for the remainder of the charges was particularly low and could have been much higher, noting that the charge of receiving could have warranted a much greater uplift.
[28] Ms Garrick submitted a discount for guilty plea between 15 and 20 per cent was available, but that the maximum of 25 per cent should not be given due to the strength of the prosecution case which she described as “overwhelming”. She further submitted the remorse X has expressed is likely because he was caught, not because he committed the offending due to him not having identified or acknowledge the harm caused to the community.
[29] In regard to X’s assistance to authorities, Ms Garrick cited FF v R, where the Court of Appeal held a discount totalling 60 per cent was appropriate for an early guilty plea and assistance to authorities.29 This followed a full confession made immediately by the appellant and assistance that was considered very significant. The Court of Appeal outlined that the two factors in evaluating the discount for assistance are the “actual practical value of the assistance” and the “amount of risk to which this exposes the defendant”.30 Ms Garrick submitted that there was no practical assistance here because the information could not be acted on due to the risk to the appellant, noting those factors were entwined.
[30] She also pointed out that in the cases of Hadfield and Whatuira cited by counsel for the appellant, the respective discounts of 40 and 60 per cent were combined discounts for guilty plea and assistance to authorities.31 If a 15 per cent discount is afforded for personal mitigating factors, then the 45 per cent discount X received for guilty pleas and assistance to authorities was well within the available range, and the appeal should be dismissed.
29 FF v R [2017] NZCA 294.
30 At [17].
31 R v Hadfield, above n 22, and Whatuira v R, above n 23.
[31] Finally, in terms of the appropriateness of the sentence, Ms Garrick submitted the end sentence imposed allows X to apply for home detention at a residential rehabilitative facility. She submitted it would be inappropriate for this Court to impose a sentence of community detention with no certainty of live-in residential treatment when this was the clear focus of the sentencing in the lower court.
Analysis
Starting point
[32] The quantum involved in X’s methamphetamine offending places him in band two of Zhang, which provides a starting point of between two years and nine years’ imprisonment.32 Given the amount was a minimum of around 42 grams, this places X at the lower end of that band in terms of quantum.
[33] In respect to his role, I agree that X falls somewhere between the lesser and significant category. In my view there is a very clear operative link between X’s substance abuse and his offending. Dr Lim’s report speaks clearly to the difficulties X has had with his addiction and that it has impacted all aspects of his life, including, eventually, his employment. X would smoke up to 1.5 grams of methamphetamine per day, making for an expensive habit ($300 to $600 per day). X supplied methamphetamine to fund this habit.
[34] However, other factors such as the equipment, firearms and cash found during the search of his address, and the extent of the information he was able to give to Police, indicates X had a considerable understanding of and connection to the supply operation and was permitted a degree of autonomy to make his own arrangements with his clients. He could not be said to be at the bottom of the chain and there was no obvious reason to select a lesser sentence than one at the upper end of band one or the lower end of band two, which is where the District Court Judge placed him.
[35] Mr George pointed out in his submissions that the District Court Judge’s starting point was higher than what was submitted by both the Crown and defence.
32 Zhang v R, above n 8, at [125].
However, submissions made by counsel provide assistance to the Judge but are not determinative and certainly not binding. In any event, I note the decisions referred to by the Crown in its submissions to the District Court indicated a starting point of between three and four years’ imprisonment.
[36] In my view, and having considered the cases referred to by counsel, but in particular Tapine, the starting point of three years and three months for the methamphetamine offending was within the available range to the District Court Judge, albeit at the upper end. The offending was very similar to Tapine in that it was motivated by addiction but had other indicia of a more significant role. While Mr George suggests the fact Mr Tapine was found with 30 grams of methamphetamine, which was more than 10 grams X was found with when searched, I consider that is more than balanced out by X’s significant history of supplying and offering to supply over the previous months.
[37] Having regard to the three year starting point adopted in Tapine, the three year three month starting point cannot be said to be excessive.
Discounts
[38] I first address the discount for guilty plea. X pleaded guilty at a very early stage and immediately following resolutions with Police. The time and resources saved as a result of X’s pleas should be properly recognised. Although the District Court Judge was correct in that there was no victim here who was saved the stressful experience of a trial, I do not consider the absence of a specific victim means a reduced discount follows. On the other hand, I consider the District Court Judge did not err in considering that the strength of the case against X justified a lower reduction for guilty plea. This was held to be a relevant factor by the Supreme Court in Hessell.33
[39] More importantly, though, I consider the combination of the guilty plea and the assistance to authorities indicates acceptance of responsibility for offending which is the primary reason a guilty plea discount is given. It is also the reason why decided cases often combine a guilty plea discount with a discount for assistance to authorities.
33 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60] abd [74].
There can be no more tangible demonstration of accepting responsibility for offending than assisting police in closing down all aspects of the offending.
[40] In that regard, the information X provided to Police during his interview was extensive, to such an extent that it was not able to be used due to concerns for his own safety. However, in assessing the discount to be given for assistance, the two factors outlined in FF v R are to be considered.34 Those are the actual practical value of the assistance and the amount of risk the defendant is exposed to. Here, the information proved to be of no actual value as the Police declined to act upon it despite it having evidential value, because of the level of risk X was exposed to by sharing that information. The Crown was correct to note these two factors are entwined.
[41] Considering the various policy reasons which inform credits of this nature, I consider a significant discount is justified in this case. First, defendants should have an incentive to assist authorities, whether or not that information gets used in a particular case. Second, the police now have that intelligence. Even if they do not act on it now, it has the potential to focus future investigations. Its practical value cannot be entirely discounted.
[42] On the other hand, because the Police declined to use the information, X was not, in fact, exposed to the risk as has been the case where large discounts have been given for assistance to authorities. For example, in Hadfield where a combined 60 per cent discount was given for assistance to authorities and guilty plea, Mr Hadfield had to be the subject of a witness protection programme with a new identity, such were the risks to him from his assistance.35
[43] In terms of a discount for mitigating circumstances in X’s background, both counsel suggest a discount of 15 per cent. X had a stable and loving upbringing by his adoptive parents, but I accept his life was derailed by a member of the church grooming X, plying him with alcohol and making sexual advances to him (although it appears penetrative sexual behaviour never occurred). I accept this prompted X’s
34 FF v R, above n 29.
35 R v Hadfield, above n 22, at [32].
pattern of alcohol and drug abuse which is a key contributing factor to the current offending.
[44] While the stated guilty plea discount struck me as too low in the circumstances, if I allocate a 15 per cent discount to personal circumstances the combined discount for guilty plea and assistance to authorities is 45 per cent. That is greater than the 40 per cent afforded in Whatuira, where the defendant gave information to police confirming the identity of his co-offender on a charge of aggravated robbery.36 If, say 20 per cent is allocated to a guilty plea, 25 per cent is then attributed to X’s assistance to authorities. This is not as much as was afforded in Waihape v R, where there was no guilty plea but 30 per cent was given for assistance to authorities.37 However, in that case the defendants subsequently gave evidence in support of the Crown case against fellow Mongrel Mob members and put their personal safety in danger.38 That is not the case here.
[45] Similarly, in the leading case of Hadfield, the defendant provided information which led to the apprehension of four other people involved in the importation of methamphetamine.39 Mr Hadfield was in such danger that he had to be subject to a witness protection scheme and leave New Zealand. By comparison, X has not had to face any jeopardy whatsoever.
[46] In summary, his assistance to authorities is to be commended and recognised by an appropriate discount. However, I am not persuaded that a combined discount of 45 per cent for guilty plea and assistance was inappropriate or out of range. It fits sensibly within the range given in other cases. I cannot, in those circumstances, find that the end sentence was manifestly excessive.
Result
[47]The appeal is dismissed.
36 Whatuira v R, above n 23.
37 Waihape v R [2012] NZCA 425.
38 At [20].
39 R v Hadfield, above n 22, at [2].
Suppression
[48] To protect X’s identity because of the risk raised by his assistance, he is granted name suppression and the publicly available version of the judgment uses a pseudonym and redacts identifying details.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
R J T George, Barrister, Christchurch
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