NICOL v NEW ZEALAND POLICE [2022] NZHC 1771

NICOL v NEW ZEALAND POLICE [2022] NZHC 1771 [22 July 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2022-404-165[2022] NZHC 1771BETWEEN AMY NICOLAppellantAND NEW ZEALAND POLICEDefendantHearing: 19 July 2022Appearances: J Scott for AppellantS-L Litt for RespondentJudgment: 22 July 2022JUDGMENT OF HARVEY J[on appeal against sentence]This judgment was delivered by me on 12.30 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, WhangareiThode Utting, AlbanyIntroduction[1] Amy Nicol pleaded guilty to six charges of offering to supplymethamphetamine1 and one charge of possession of methamphetamine for the purposeof supply.2 On 9 May 2022, Judge D J McDonald imposed a sentence of two yearsand four months' imprisonment.3[2] Ms Nicol now appeals that decision arguing that the sentencing Judge:(a) failed to take account of her role in the offending;(b) imposed an excessive uplift for prior convictions;(c) gave insufficient weight to her personal mitigating factors; and(d) ultimately failed to commute the sentence of imprisonment to one of homedetention.The offending[3] On 9 July 2020, Vodafone New Zealand, in response to a production order,provided Ms Nicol's telecommunications data to police. That information revealedthat on six occasions Ms Nicol offered to supply methamphetamine.4 On 6 June 2020,Ms Nicol received a text from an associate enquiring whether she hadmethamphetamine for sale, and in reply she offered to supply half a gram. The pairthen organised to meet. Later, Ms Nicol received a request from a second unidentifiedassociate, who she offered three grams of methamphetamine for sale. The pair thendiscussed how much the purchaser already owed Ms Nicol for previous sales.[4] On 16 June 2020, Ms Nicol received a text from a third unknown associateasking for a "whole" because they had "a couple pple wanting". Ms Nicol advisedthat she could. The purchaser then asked if she could "do 2". Several phone calls1 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum penalty of life imprisonment.2 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). Maximum penalty of life imprisonment.3 Police v Nicol [2022] NZDC 8157.4 The associates to whom Ms Nicol offered to supply methamphetamine are unknown, althoughtheir cellphone numbers formed part of the data handed over by Vodafone.followed, and Ms Nicol offered to supply two grams of methamphetamine.[5] On 26 June 2020, Ms Nicoll received a phone call from a fourth unknownassociate and several text messages, which included them saying "yay birthday puffshaha" and asking her to "plz save 2". Ms Nicol replied, "see you soon" and offered tosupply two grams of methamphetamine. The next day that same associate sent a textasking "3?" Ms Nicol replied "yip". The associated asked if it was "for a tun?" MsNicoll responded "sweet" and offered to supply three grams of methamphetamine for$1,000. Several days later the same associate text Ms Nicol asking "cn u bring 3 or 7if u cum in before me". The pair organised where to meet. Ms Nicol offered to supplyat least three grams of methamphetamine.[6] Police obtained a warrant to search Ms Nicol's address. They found a smallcontainer holding two grams of methamphetamine sitting on her bed and a small snap-lock bag containing 0.4 grams on a chest of drawers.District Court sentencing[7] Judge McDonald noted the presumption in s 6(4) of the Misuse of Drugs Act1975 that Class A drug offending calls for a sentence of imprisonment.5 The Judgeconsidered that 15.9 grams of methamphetamine fell within band 2 of the guidelinejudgment, Zhang v R, where starting points range between two and nine years'imprisonment.6 Turning to Ms Nicol's role, the Judge did not accept that she was alow level drug dealer profiting only to sustain her own drug addiction.7 Ms Nicol wasdealing in grams, rather than point bags, and the evidence suggested that at least onepurchaser was on-selling the drugs.8 In addition, her self-reported addiction wasuncorroborated by any independent evidence.9 The Judge adopted a starting point oftwo years and 10 months' imprisonment.10[8] Judge McDonald then applied an uplift of four months to take into account Ms5 Police v Nicol [2022] NZDC 8157 at [11].6 At [11]–[13].7 At [13]–[15].8 At [14].9 At [15].10 At [17].Nicol's three prior convictions for dealing methamphetamine.11 He then applieddiscounts of 15 per cent for Ms Nicol's guilty plea and 10 per cent for time spent onEM bail.12 The result was an end sentence of two years and four months'imprisonment, which is "above the home detention threshold".13Approach on appeal[9] This Court must allow the appeal if it is satisfied that for any reason there wasan error in the sentence imposed on conviction and a different sentence should beimposed.14 The focus is on the sentence, rather than the process by which it isreached.15 The Court will not intervene where the sentence is within the rangeestablished by accepted sentencing principles.16 To this end the concept of a"manifestly excessive" sentence is well settled and there is no reason not to use it.17Application to admit fresh evidence[10] It is also well settled that if the proposed evidence is credible but not fresh, itmay still be admitted if a miscarriage of justice would arise from its exclusion.18 Theoverriding test is whether the interests of justice require admission.19 The evidenceMs Nicol seeks to be admitted includes a letter from a clinician at Community Alcoholand Drug Services ("CADS") and an email chain between that clinician and one of MsNicol's lawyers. The letter depicts a Waitemata District Health Board ("DHB") andCADS letterhead, and the email is sent from Waitemata DHB email address. There isno reason to doubt the credibility of the material.[11] The letter from the clinician confirmed Ms Nicol's attendance at a treatmentassessment summary, five action group sessions and one individual counsellingsession between 12 July 2021 and 4 May 2022. There were gaps in her attendance.In the email chain, the clinician explained that those gaps were attributable to COVID-11 At [17]–[18].12 At [19]–[20].13 At [20].14 Criminal Procedure Act 2011, s 250(2).15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].16 At [36].17 At [35].18 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].19 At [119].19 lockdowns and Ms Nicol's social anxiety. Ms Nicol's lawyer further asked theclinician to comment on her engagement with the programme but there was no replyto that aspect of the email. The reason why is not apparent.[12] Mr Scott, for Ms Nicol, properly accepted that the evidence is not fresh, in thesense that counsel could have obtained it for sentencing. He submitted that it isnevertheless in the interests of justice to admit it. Notwithstanding the clinician'sfailure to comment on Ms Nicol's engagement, this evidence is independent andsupports Ms Nicol's account of her offending being addiction-driven. I accept that itis in the interests of justice that the letter be admitted.Did the Judge adopt a starting point that was too high?Appellant's submissions[13] Mr Scott submitted that the Judge overstated her role in the offending. Hecontended that the inference to be drawn from the small quantity of methamphetaminepossessed by Ms Nicol and the price she offered to supply it demonstrated that shewas a street level dealer with a lesser role. Counsel argued that Ms Nicol's offendingwas addiction-driven, as noted in the Summary of Facts. As foreshadowed, Mr Scottsought and was granted leave to adduce fresh evidence of Ms Nicol's engagement withCADS while on EM bail.Respondent's submissions[14] Ms Lett, for the Crown, emphasized that Ms Nicol was dealing in gramamounts. She submitted that this is suggestive of an expected commercial profit. Shefurther contended that the text messages indicate that Ms Nicol was aware that shewas dealing methamphetamine to a group of end users, or that the purchaser would beon-selling it. Ultimately, Ms Lett submitted that the starting point imposed was withinthe available range.Discussion[15] I accept the Judge's finding that Ms Nicol's offending fell within band 2 ofZhang v R, which captures methamphetamine dealing in quantities between five and250 grams.20 Appropriate imprisonment sentence starting points fall between two andnine years.21 The issue is where Ms Nicol's offending falls within band 2, taking intoaccount the quantity of methamphetamine and her role. The starting point is quantityand, in this case, Ms Nicol pleaded guilty to dealing 15.9 grams of methamphetamine.This then places her offending near the lower of band 2. Where counsel disagree isthe role played by Ms Nicol, given that the part an offender plays is a critical elementin assessing culpability.22[16] It is evident that all the information relevant to role was not before JudgeMcDonald. He concluded that her claimed addiction motivated offending was self-reported. On appeal this Court has the benefit of independent evidence that Ms Nicolattended treatment sessions at CADS. This supports her account, recorded in theSummary of Facts, that she was dealing methamphetamine to support her ownaddiction and that some of the methamphetamine found at her address was for her ownconsumption. Similarly, consistent with that account is that police foundmethamphetamine-consuming paraphernalia in her bedroom.[17] The Judge was provided with a statement from Ms Nicol's mother, who alsoattended the appeal hearing, which he accepted "at face value". Ms Nicol's mothersaid that Ms Nicol told her she was using methamphetamine with associates inAuckland. She then said that in May 2017, Ms Nicol began a relationship with a "wellknown criminal" and moved to Whangarei. She continued using methamphetaminethere. Soon after on 21 March 2018, Ms Nicol was sentenced to home detention forsupplying methamphetamine. Ms Nicol's mother's view is that her daughter isaddicted to methamphetamine, which she attributes to unresolved grief associated withher father's suicide. Ms Nicol's mother's evidence is corroborated by that discussedpreviously. In totality the evidence before this Court is sufficient to establish that MsNicol's offending was, at least in part, driven by addiction.[18] While Ms Nicol was dealing methamphetamine measurable in grams, that doesnot elevate her role beyond that of a street level dealer. There is no evidence that her20 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].21 At [125].22 At [104].drug dealing was in concert with any others, nor that those who she offered to supplymethamphetamine were subordinates in a chain of command. I accept the Judge'scomments that the methamphetamine Ms Nicoll sold could be on-sold or supplied tothird parties. That possibility is accounted for by the offending being classified asband 2. Had she been dealing in quantities described as the "lowest level", a lesserstarting point within band 1 would have been appropriate. In my assessment, Ms Nicolappears to have been operating individually and motivated by her own addiction.While some financial incentive must have been involved, that was not the only driver.For these reasons, I consider that her role is more appropriately classified as lesser.[19] Ms Lett referred to Bailey v R,23 where the offender organised to supply 15.5grams of methamphetamine.24 Doogue J considered a starting point of three years andthree months' imprisonment appropriate.25 I consider that Bailey is distinguishable.Doogue J found that the offender was not "dependent or addicted to methamphetaminebased on his own statements that he could stop when required" and that "he did notexperience any withdrawal symptoms after waking up in jail."26 Both Ms Nicol andher mother's accounts, supported by independent evidence, confirm that she isaddicted to methamphetamine.[20] Mr Scott referred to three cases where offenders dealt in similar quantities ofmethamphetamine to Ms Nicol and had a similar role, in all of which the starting pointwas two years and six months' imprisonment.27 The most recent case cited was Ripiav R,28 where the appellant pleaded guilty to three charges of being in possession ofmethamphetamine for supply.29 The offending involved approximately 21 grams ofmethamphetamine over a six month period.30 Lang J found that the appellant's role"appears to have been that of a street level dealer selling methamphetamine both for23 Bailey v R [2021] NZHC 2225.24 At [13].25 At [55].26 At [42].27 See Dunn v Police [2020] NZHC 316; Pryor v Police [2022] NZHC 1011; and Ripia v R [2022]NZHC 984. In Dunn the appellant pleaded guilty to 22 charges of possession of methamphetaminefor supply after texting associates and agreeing to supply 24.7 grams of methamphetamine. Thestarting point of two years and six months' imprisonment was not challenged on appeal. Theappeal concerned the appropriate discount for addiction. Gordon J considered a discount of 20per cent warranted.28 Ripia v R [2022] NZHC 98429 At [1].30 At [26].commercial gain and to support his own use of the drug."31 He adopted a startingpoint of two years and six months' imprisonment.32[21] My conclusion, having reviewed the examples cited, is that a starting pointabove two years and six months' imprisonment could not be justified.Did the Judge apply an excessive uplift for previous convictions?Appellant's submissions[22] Mr Scott submitted that the Judge applied an excessive uplift for Ms Nicol'sprevious convictions. He contended that the Judge erroneously considered that herprior sentence of six months' home detention for that offending was "lenient". In anyevent, counsel argued that the four month uplift was excessive, insofar as it constitutedtwo thirds of the sentence for that offending.Respondent's submissions[23] Ms Litt submitted that the Judge was entitled to apply an uplift due to MsNichol's previous offending, while noting that an uplift of three months was notuncommon. Counsel also contended that, while the uplift imposed by the Judge wasat the upper end of the scale, it was nonetheless within the orthodox range.Discussion[24] The basis for an uplift for previous convictions is threefold. Previousconvictions are relevant to character and culpability, are an indicator of the risk ofreoffending and call for the imposition of a deterrent sentence that protects society.33It is well settled that any uplift must bear a reasonable relationship to the sentence forthe prior convictions and the starting point for the index offending.3431 At [27].32 At [27]. That approach was followed in Pryor v Police [2022] NZHC 1011. The offender pleadedguilty to five methamphetamine dealing charges involving "the possession and supply of a totalof 12.6 grams of methamphetamine over a six month period". Lang J considered that theoffender's role "was that of a street level dealer selling methamphetamine both for commercialgain and to support her own use of the drug." He adopted a starting point of two years and sixmonths' imprisonment.33 Reedy v Police [2015] NZHC 1069 at [19].34 Tiplady-Koroheke v R [2012] NZCA 477 at [24].[25] In this context it is relevant that Ms Nicol's was previously sentenced of sixmonths' home detention for methamphetamine dealing. This is equivalent to one yearof imprisonment. An uplift of four months is not disproportionate to a sentence of thatlength, given the relevance of the prior convictions and the escalating seriousness ofMs Nicol's offending over time, despite her sentences.35 I am not satisfied that theuplift was excessive and accordingly, this ground of appeal must fail.Was insufficient weight given to Ms Nicol's personal mitigating factors?Guilty plea – Appellant's submissions[26] Mr Scott submitted that the Judge gave insufficient weight to three of MsNicol's personal mitigating factors – her guilty plea, her addiction driven offendingand the time Ms Nicol spent on EM bail. In addition, counsel contended that the delaysassociated with Ms Nicol pleading guilty were attributable to issues with the chargingdocuments, subsequent resolution discussions and COVID-19 related adjournments.He submitted that taking account of these factors, Ms Nicol pleaded guilty at the firstreasonable opportunity.[27] Further, Mr Scott submitted that Ms Nicol was remanded without a plea afterher first appearance on 31 May 2021 because police had failed to provide initialdisclosure. At a second appearance on 8 June 2021, police provided amended chargingdocuments with particulars that did not match the details described in the Summary ofFacts. Counsel was not in a position to enter pleas. The Court deemed not guilty pleasto have been entered and adjourned the proceeding to a case review hearing scheduledfor 27 August 2021. Mr Scott confirmed that the Judge noted the charging documentwith the following annotation: "Hessell discount reserved – Counsel unable to getsign-off on plea."Guilty plea – Respondent's submissions[28] Ms Lett argued that the 15 per cent guilty plea discount was within the35 See for example Taylor v R [2014] NZCA 561 where the appellant criticised the sentencing Judgefor applying a six month uplift to account for his previous cannabis offending when sentencinghim for further cannabis offending. The Court of Appeal noted that the appellant received asentence of two months' community detention and a fine for his prior offending. The Courtconsidered the uplift of six months disproportionate and substituted an uplift of two months.available range. She submitted that the proceedings were before the Court for nearly10 months, with at least seven appearances and argued that the appellant did not pleadguilty at the earliest opportunity. This too was a relevant factor for the Judge to takeaccount of, according to counsel.Discussion[29] On 21 June 2021, counsel put a resolution offer to police which was acceptedthe following day. Then on 28 June 2021, EM bail was granted at Ms Nicol's thirdappearance. Some weeks later, on 23 August 2021, a case management memorandumwas filed to inform the Court of the resolution between Ms Nicol and police. At thistime, Auckland was subject to a COVID-19 lockdown. The next case review hearingwas repeatedly adjourned until 22 February 2022 due largely to COVID-19 relatedchallenges. On that date Ms Nicol entered guilty pleas to the methamphetaminecharges while additional charges of cannabis related offending were withdrawn.[30] I accept that there were issues with the allegations against Ms Nicol at her firsttwo appearances. That is evident from the Judge's comments that the guilty pleadiscount should be reserved. Thus, Ms Nicol cannot be criticised for refusing to pleadguilty at that point. Then, after applying for EM bail, Ms Nicol pleaded guilty at hernext appearance. That appearance was some eight months later due to COVID-19related adjournments prolonging the case management process. Those delays werenot because Ms Nicol had failed to accept responsibility for her offending. On thecontrary, she had agreed a resolution with police shortly after her second appearance.Accordingly, in my assessment, a full guilty plea discount of 25 per cent should havebeen available to Ms Nicol.Addiction-driven offending – Appellant's submissions[31] Mr Scott submitted that the Judge should have applied a discount to recognisethat Ms Nicol's offending was addiction-driven. In any event, there was nowsupporting evidence available to confirm Ms Nicol's addiction. Counsel contendedthat a discount of five to 10 per cent was appropriate in this case.Addiction-driven offending – Respondent's submissions[32] Ms Lett argued that the Judge was correct to conclude that the appellant'sevidence of addiction was self-reported and was not sufficiently persuasive to justifya discount. It was also relevant that at the time of sentencing the Judge did not havethe CADS correspondence, which counsel accepted was relevant. Whether, had itbeen available at that time, the letter might have made a difference to Ms Nicol'ssentence is unknown.Discussion[33] It is accepted that addiction may give rise to a sentencing discount of up to 30per cent, depending on the extent to which it mitigates moral culpability for theoffending.36 Equally importantly, such a discount must be based on persuasiveevidence.37[34] Ms Nicol's clinician did not comment on the severity of the addiction or herengagement with the programme, despite being asked to do so. This lack ofinformation beyond that establishing the fact of addiction necessarily reduced thediscount available. My conclusion is that the evidence here is sufficient to establishthat Ms Nicol had a methamphetamine addiction and has sought treatment for itthrough CADS. In those circumstances, a discount of five per cent is appropriate.Time spent on EM bail – Appellant's submissions[35] Mr Scott submitted that the Judge failed to give an appropriate discount for thetime Ms Nicol spent on EM bail. She notes that Ms Nicol spent 10.5 months on EMbail, in submitting that the Judge should have applied a discount of 15 to 20 per cent.Time spent on EM bail – Respondent's submissions[36] Counsel did not make any detailed submissions on this issue.36 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].37 At [148].Discussion[37] An allowance of up to 50 per cent of the time spent on restrictive EM bailconditions is not uncommon and nor is that an upper limit.38 Moreover, the assessmentof credit is an evaluative decision to be made after taking account of the restrictivenessand duration of EM bail conditions in each case.39 The Judge applied a discount of 10per cent after applying the uplift for previous convictions. This is equivalent to anallowance of 3.8 months for time spent on EM bail.[38] With respect to the learned Judge, I consider that allowance was inadequate.Ms Nicol spent approximately 10.5 months on EM bail with a 24 hour curfew. It wasaccepted that she did not breach her bail conditions during that period. A discountequivalent to approximately half that time is justified, particularly having regard to MsNicol's compliance. In my assessment, a discount of five months is appropriate.Should Ms Nicol receive a sentence of home detention instead of imprisonment?[39] Applying the above uplift and discounts to the starting point of two years andsix months results in an end sentence of 20 months' imprisonment. This brings theend sentence within the range where home detention is an available outcome.40Is home detention the appropriate sentence?[40] Section 6(4) of the Misuse of Drugs Act creates a presumption of imprisonmentwhen sentencing Class A drug offending. Whether that presumption is overborne turnsupon the particular circumstances of the offence and the offender.[41] Mr Scott submitted that Ms Nicol's personal circumstances mandate a sentenceof home detention since it is the least restrictive sentence that is appropriate in thecircumstances. Counsel advances several considerations that support that conclusion.[42] First is the role addiction played in Ms Nicol's offending. Addiction calls for38 Paora v R [2021] NZCA 559 at [53].39 At [53].40 Sentencing Act 2002, ss 15A and 4 definition of "short-term sentence"; and Parole Act 2002, s4(1) definition of "short-term sentence".consideration of a rehabilitative response as part of sentencing.41 Ms Nicol has takensteps to rehabilitate in seeking treatment through CADS. A sentence of homedetention will enable her to continue this treatment. Secondly, Ms Nicol demonstratedcompliance on EM bail conditions for some 10.5 months. It follows that she is likelyto comply with the terms of a sentence of home detention.[43] Thirdly, Mr Scott confirmed that a suitable address is available. It is theaddress to which Ms Nicol was bailed and where she lived with her teenage daughter.She is responsible for her care. I accept that this is another factor which will give asentence of home detention a rehabilitative purpose.[44] I note that Ms Nicol has previously been sentenced to home detention formethamphetamine offending. This necessarily calls into question the deterrent effectof her previous sentence. It is a factor that reasonably militates against imposinganother sentence of home detention. However, I am satisfied that, on this occasion, asentence of home detention will best meet Ms Nicol's rehabilitative needs, whilst stillfacilitating the deterrent and denunciative purposes of sentencing. A sentence of homedetention remains the second most restrictive sentence available.42 My conclusion isthat the sentence of imprisonment should be commuted to one of home detention.[45] That said, Ms Nicol needs to take her addiction issues seriously, given theopportunity she has now been given. Ms Nicol needs to work with her family, severalof whom attended the appeal hearing, and the appropriate agencies, to genuinelyengage with rehabilitation and addiction programmes. She needs to take concretesteps to make better choices and have her methamphetamine addiction treated. At therisk of belabouring the point, Ms Nicol needs to commit to authentic addictiontreatment as a matter of priority. To avoid doubt, it is unlikely that this Court or theDistrict Court would entertain anything other than a prison sentence should Ms Nicolengage again in comparable reoffending.41 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [150].42 Sentencing Act 2002, s 10A.Adjustment for time spent in custody[46] Given that a sentence of home detention is being substituted, Mr Scott submitsthat an adjustment should be made for the three months that Ms Nicol spent remandedin custody. She advises that Ms Nicol was in custody for approximately one monthprior to being granted EM bail and another two months after being sentenced toimprisonment.[47] The Court is required to take account of the time an offender spent in custodywhen imposing a sentence of home detention.43 A deduction of three months isappropriate in this case.Decision[48] The appeal is allowed.[49] The sentence of two years and four months' imprisonment is quashed andsubstituted with a sentence of seven months' home detention.____________________________Harvey J43 See for example Slade v Police [2020] NZHC 3396 at [26]–[33]; and Stridom v Police [2019]NZHC 354 at [50].