MEARS v POLICE [2017] NZHC 932

MEARS v POLICE [2017] NZHC 932 [10 May 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCRI 2017-442-2CRI 2017-442-3CRI 2017-442-4[2017] NZHC 932BETWEEN DANIEL NORMAN MEARSAppellantAND NEW ZEALAND POLICERespondentHearing: 9 May 2017Counsel: R M Gould for AppellantR Thomson for RespondentJudgment: 10 May 2017JUDGMENT OF SIMON FRANCE JIntroduction[1] Mr Mears appeals his sentence of two years and five months' imprisonment.1He had pleaded guilty to offering to supply methamphetamine, possession of methamphetamine and of cannabis, threatening to do grievous bodily harm, dangerous driving and driving while suspended (x2). Judge Zohrab took a three year starting point for the drug offending, added three months for the threat and one month for the driving offences. This starting point of 40 months' is not challenged.[2] The focus is on the discounts given to Mr Mears – 20 per cent for a guilty plea, and 10 per cent for personal matters including strong efforts at rehabilitation and separating himself from a gang environment.1 R v Mears [2017] NZDC 4858.Discussion[3] The primary submission on appeal is that the District Court Judge wrongly focused on discrete steps in the sentencing exercise. What was needed here was a more global assessment that recognised the truly significant rehabilitative gains Mr Mears had made. The focus, it is submitted, should have been on imposing a sentence that was the most likely to embed the gains and promote continuation of the improvements.[4] It is submitted that Mr Mears' offending can be traced to his addiction, andhis gang connections. He had addressed both and had a very supportive report froma Stopping Violence counsellor. That report also covered the appellant's steps asregards his addiction. The report writer considered Mr Mears' motivation to be verygood, and identified further courses that were available. Ms Gould also notes that the original sentencing was adjourned to enable Mr Mears to undertake the counselling, and to complete other directed steps, all of which were done. It is not suggested the actual sentencing Judge, who was different from the Judge who adjourned the matter, was somehow bound by this, but it is submitted to be a relevant factor.[5] I do not consider this submission can succeed on appeal. I accept it is open, in limited circumstances, for a Judge to step outside the normal sentencing process and take an approach driven by rehabilitation considerations. The fact that class A offending is involved does not prevent that. However, if the Judge does not exercise the limited discretion to do that, then I doubt there is much scope to contend on appeal that an error has been made. All that has happened is that a restricted discretion to approach the sentencing outside the normal parameters dictated by binding authorities has not been exercised. It is difficult to see how that could be an error. I certainly do not consider it to be one here. Accordingly, I turn to thechallenges made to the Judge's orthodox approach.[6] The first challenge is to the credit given for these personal circumstances. Ms Gould submitted 15 per cent rather than 10 per cent should have been given, a difference of two months. On its own it is not a point meriting adjustment but Iaccept that if other gains can be made, the cumulative effect might make a difference. That said, in my view it cannot be maintained here either that 15 per cent was the minimum appropriate discount, or that 10 percent was manifestly inadequate. The drug offending spanned nine months and involved numerous offers to supply methamphetamine. While Mr Mears is to be commended for his reform, the law is clear that general deterrence remains the governing principle. A 10 per cent discount was appropriate.[7] The second ground of appeal is that credit should have been given for 21 months of curfew. Apparently the curfew was from 7 pm to 7 am. Mr Mears was able to stay at addresses either in Christchurch or Blenheim depending on work needs. I do not consider this type of common bail condition demand recognition such that it was an error not to give any. Indeed it does not seem the idea of credit was even suggested at sentencing.[8] Further, Mr Mears was twice alleged to be in breach of that bail. He disputes these, but it is unclear whether he says there was no breach or it was a case of good excuse for a breach. Regardless, as Ms Thomson points out, there were also two further occasions where Mr Mears committed driving offences while on that bail. Those facts tell against any credit concerning the bail, and the Judge did not err.[9] Finally, I note that a 20 per cent guilty plea credit was given in circumstances of a quite delayed plea, and intercepted text messages establishing the offers to supply. That was a generous discount. Overall, a total package representing a 30 per cent discount provides no basis for a successful appeal.[10] The appeal is dismissed.__________________________Simon France J