WRATT v R [2021] NZCA 128

WRATT v R [2021] NZCA 128 [22 April 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA657/2019[2021] NZCA 128BETWEEN DAVID WAYNE WRATTAppellantAND THE QUEENRespondentHearing: 17 February 2021Court: Gilbert, Mallon and Edwards JJCounsel: E J Forster for AppellantM L Wong and F E S F Girgis for RespondentJudgment: 22 April 2021 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Mr Wratt was charged with importing methamphetamine.1 The representativecharge related to four packages of methamphetamine which Mr Wratt had arrangedthrough the "Dark Web" to be sent under false names to his address or nearbyaddresses. The total quantity of methamphetamine imported in this way was 452 g1 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a); maximum penalty of life imprisonment.over a five-month period. All four packages were intercepted by the New ZealandCustoms Service (Customs) and linked to Mr Wratt.[2] Mr Wratt pleaded guilty and was sentenced on 11 November 2019 to six yearsand nine months' imprisonment.2 He appeals his sentence as manifestly excessive.He says that the starting point for his offending was too high because his role waswrongly characterised as "leading" in terms of the indicia set out in Zhang v R.3He also says his attention deficit hyperactivity disorder (ADHD) warranted a higherdiscount.[3] The notice of appeal was filed a few days out of time. Mr Wratt has explainedthat he gave instructions to his lawyer to appeal promptly but there were delays inthe mail system. The Crown does not oppose an extension of time. We consideran extension is appropriate in the circumstances and grant the application accordingly.Background[4] The first importation concerned a package sent from the United States.Mr Wratt used a false name for the addressee and gave his home address in Napier fordelivery. The package was intercepted by Customs on 8 September 2017. It was foundto contain approximately 236 g of methamphetamine. In collaboration with police,Customs replaced all but 10 g of methamphetamine with a substitute material.[5] The package was then delivered on 18 September 2017 by courier toMr Wratt's home address. An associate answered the door and signed for the package.Shortly after this, Mr Wratt and his associate drove away in Mr Wratt's car withthe package. Mr Wratt, who was driving the car, told his associate to openthe package. A tamper alarm inside the package alerted the police and they attemptedto stop the car. Mr Wratt and his associate were apprehended after a short pursuit.[6] Mr Wratt was bailed to a Dunedin address on 20 October 2017. He arrangedfor the importation of three further packages while on bail:2 R v Wratt [2019] NZDC 22470 [Sentencing judgment].3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.(a) A package arrived in New Zealand on 24 November 2017. The packagewas addressed to the house neighbouring Mr Wratt's bail address.A false name was used for the addressee. Mr Wratt attempted tointercept the package on delivery but he was unsuccessful. The courierleft a calling card. The occupant of the neighbouring address calledthe courier service and told them that nobody with the name ofthe addressee lived at the address. The package was examined byCustoms and was found to contain 90 g of methamphetamine.(b) A package arrived in New Zealand around 23 January 2018. It wasaddressed to another property in the same street as Mr Wratt's bailaddress and again a false name was used for the addressee. Once again,the occupants advised the courier company that they did not knowthe addressee and the package was uplifted and examined by Customs.It contained 36 g of methamphetamine.(c) A fourth package arrived in New Zealand around 2 March 2018.The package was for delivery to a Hastings address to an addressee whodid not live there. The package was never delivered. It was examinedat the border and found to contain 90 g of methamphetamine.[7] The purity of the methamphetamine was at issue prior to sentencing. Mr Wrattclaimed he had purchased it cheaply and its purity was below 60 per cent.The methamphetamine was destroyed after Mr Wratt entered his guilty plea but beforethe disputed facts hearing. The Crown conceded that Mr Wratt should be entitled tosome benefit of the doubt regarding the purity.Personal circumstances[8] Mr Wratt was aged 45 years at the time of the first importation. He has alengthy list of prior convictions, largely involving dishonesty offences. He has noprevious convictions for methamphetamine offending.[9] Mr Wratt told the pre-sentence report writers that he had a longstandingaddiction to methamphetamine. He said he imported the drugs as a cheap way to fundhis addiction (the more he brought in, the cheaper it was) and because it would be saferthan obtaining drugs from gang members or other drug dealers. He said he had beendrug-free for one and a half years while on remand awaiting sentencing. Mr Wrattalso said that he was diagnosed with ADHD when he was young andmethamphetamine would calm him like the medication he used to be prescribed forthat disorder.[10] Mr Wratt was seen prior to sentencing by Dr Gil Newburn in prison on31 January 2019. Dr Newburn confirmed that Mr Wratt has ADHD. This was alifelong pervasive disorder characterised by the typical range of symptoms.His significant history of criminal offending appeared to have involved "impulsiveand silly" acts consistent with ADHD. Dr Newburn also considered Mr Wratt tohave a stimulant use disorder (using significant amounts of methamphetamine overa long period) and Mr Wratt's ADHD was a factor in the development of that disorder.[11] Mr Wratt was also seen by Dr Greg Young, a consultant psychiatrist atthe prison. Dr Young's notes are mainly about the appropriate medication for Mr Wrattin light of his methamphetamine addiction. His notes also record his impression thatMr Wratt was using his ADHD medication as a substitute for methamphetamine andthat Dr Young was not happy with Mr Wratt's lack of openness to addiction treatment.The PAC report provided to the Court prior to sentencing also noted Mr Wratt's claimthat "methamphetamine would calm him like the medication" doctors would prescribefor his ADHD.District Court sentencing[12] Mr Wratt came before Judge Rea in the District Court at Napier for sentencingon 11 November 2019. The Judge said that, if there were no issue about the purity ofthe methamphetamine, the starting point would have been around11 years' imprisonment. In taking that view, the Judge referred to the nearly 500 g ofmethamphetamine that would have been available for distribution had the packagesnot been intercepted.44 Sentencing judgment, above n 2, at [2] and [7].[13] The Judge was, however, prepared to accept the Crown's submission thatthe starting point be reduced to nine years' imprisonment because of the purity issue,which he described as "very generous".5 This was uplifted by six months (5.5 percent) to reflect that three of the importations occurred when Mr Wratt was on bail.One year (10.5 per cent) was deducted for his ADHD diagnosis and addiction issuesand a discount of 21 months (20 per cent) was made for his guilty plea.6 This meantan end sentence of six years and nine months' imprisonment (rounded down). Therewas no minimum period of imprisonment imposed.7Starting point[14] The quantity of drugs imported puts the offending at the top of band three inthe guideline judgment of Zhang v R.8 That band applies to quantities between 250and 500 g with at least a 60 per cent purity. A starting point in the range of six and12 years' imprisonment is the guideline for that band.9[15] Methamphetamine with less purity "corresponds to reduced harm" and mayrequire a reduction in the calculated quantity.10 The Crown was unable to prove thatthe purity of the drugs was at least 60 per cent. The Judge was correct to reducethe starting point accordingly. A reduction to the mid-point of the band three range(nine years' imprisonment) was fair in the circumstances and Mr Wratt does notcontend otherwise.[16] The challenge is to the Judge's assessment of Mr Wratt's role in the offending.The Judge discussed Mr Wratt's role in the following terms:11[5] There has been some debate between Ms Graham on your behalf andthe Crown as to where you fit in. You are a leading figure in this simplybecause you were the one who did it. However, it is leading only in that senseand Ms Graham has isolated that in her submissions. It is not the same as ifyou were in charge of [a] major importation ring and you were calling5 At [7].6 At [8]. This was calculated on the methodology used prior to Moses v R [2020] NZCA 296, (2020)29 CRNZ 381.7 At [10].8 Zhang v R, above n 3.9 At [125].10 At [129].11 Sentencing judgment, above n 2. See also Zhang v R, above n 3, at [126].the shots from the head of it. However, you were calling the shots on youroperation because you were the operation and you brought it all in.[17] Mr Wratt submits that, if the Judge had assessed Mr Wratt's role in terms ofthe indicia that are set out in Zhang, Mr Wratt would fit more of the "lesser" and"significant" indicia than he does "leading".12 He submits that, in the present case,the "leading" role applies to those involved in the running of the distribution networkon the "Dark Web". That was not him. He was an unsophisticated buyer who hoped,if he was successful in receiving the packages, to obtain cheap methamphetamine forhis own addiction. His motivation for ordering large quantities was because it wascheaper to do so. The fact that he used addresses close to where he lived and that hewas largely unsuccessful emphasises his lack of sophistication. Mr Wratt submitsan eight-year starting point would more accurately fit his role.[18] We do not accept that the "lesser" indicia are present in any realistic way.We agree that there is some overlap in the "significant" and "lesser" indicia and thatsome of the indicia under each of those categories do not apply. It is to be rememberedthat the indicia are not a rigid checklist but intended as a potentially helpful guide forjudges when assessing the culpability of the overall offending.13[19] We consider the Judge's comments about Mr Wratt's role, quoted above,accurately describe that role. He was the leader in New Zealand of his operation.He made the decision to import the methamphetamine. He decided how he would dothat and he made the arrangements for the packages to be sent and paid for. No-onewas directing him to do this and he was accountable to no-one above him in the supplychain. As the Judge found, the "sheer amount" meant that it could not have been allfor Mr Wratt's personal use.14 This was a commercial quantity with the potential tocause substantial harm to the community and provide Mr Wratt with substantialfinancial rewards if distributed.[20] We consider Mr Wratt is best described as having a "leading" role inthe importation of these drugs, albeit that his operation was an unsophisticated one.12 At [126].13 At [126].14 Sentencing judgment, above n 2, at [2].It was open to the Judge to adopt a slightly lower starting point than he did becausethis was not sophisticated offending. It involved no extensive planning, required noinput from others and was unsuccessful in its execution. Nevertheless, we considerthe starting point of nine years' imprisonment was in range and not manifestlyexcessive.[21] We are reinforced in this conclusion with reference to recent decisions ofthis Court. Specifically:(a) Ms Hobson (one of the appellants in Zhang v R):15 This appellantimported a minimum of 300 g of methamphetamine and attempted toimport a further 290 g. She was at the "lower end of 'leading'", beingin contact with the overseas supplier but in a relatively unsophisticatedoperation.16 A starting point of nine years' imprisonment wasconsidered appropriate and a ten and a half-year starting point wouldhave been warranted if she had been successful in importing the further290 g.17(b) Moheebi v R:18 The appellant imported over 500 g ofmethamphetamine over a four-year period. There was a dispute aboutwhether 150 g of that quantity had a purity of less than 60 per cent.He was an entrepreneur who did not fit into a wider supply chain, buthis operation was "not sophisticated" and "amateurish".19 He was saidto have a "leading" role and an 11-year starting point was held to beappropriate for the importation.20[22] The initial starting point of 11 years' imprisonment in this case correspondswith Moheebi v R for a comparable operation. The adjusted nine-year starting pointcorresponds with Ms Hobson in Zhang v R for a comparable quantity adjusted becauseof the purity issue.15 Zhang v R, above n 3, at [229]–[245].16 At [238].17 At [238]–[239].18 Moheebi v R [2020] NZCA 343.19 At [22].20 At [23].Discounts for personal mitigating factorsADHD diagnosis[23] In deciding on a discount of 10.5 per cent for Mr Wratt's ADHD andmethamphetamine addiction, the Judge said:21[6] It is unclear about your addiction. I am quite prepared onthe reports that I have seen to conclude that you do have addiction issuesaround the drug but where it crosses over with your ADHD is difficult toassess. However, I believe you are entitled to some credit for that.However, you are a man who is not inexperienced in dealing withthe system. You have served numerous sentences of imprisonment where youwould have had ample opportunities to address issues. Whether you could notor you would not I do not know, but you certainly had that opportunity.[24] Mr Wratt says a discount of 30 per cent for his ADHD should have been givenbecause of the strong causative link between his ADHD and his offending. He saysthat prior to Zhang v R the range for contributing mental illnesses was 12 to 30 percent and the Court in Zhang v R expressly left the extent of this discount open.[25] The Crown says the discount was within range. The Crown contrastsMr Wratt's offending with the scenario envisaged in Zhang v R of offenders whoseactions were driven by their drug dependency, such as a solo parent recruited by a gangto sell drugs to fund their own addiction and to repay accruing debt. The Crown saysthe connection between the ADHD and the offending is weak. It says that any suchcausative link is not relevant to importation on this scale.[26] This Court accepted in Zhang v R that addiction may logically give rise toa discount of up to 30 per cent of the sentence depending on the extent to which itmitigates moral culpability for the offending. This correlated with the discountpotentially available for serious mental health disorders, which might be seen ashaving a similar mitigating impact. A discount for addiction greater than 30 per centmight be available, although clear reasons ought to be given in such a case.2221 Sentencing judgment, above n 2.22 Zhang v R, above n 3, at [149].[27] The Court acknowledged evidence that methamphetamine is attractive to userswith mental health issues and a discount was available if there is an evidential basis tosuggest that mental health issues have contributed to the offending. However, "mentalhealth issues and addiction may operate in combination" and so it was necessary "toensure that there is no improper doubling-up of discounts for personalcircumstances".23 The Court referred to existing authority that the degree ofthe discount depended on the severity of the mental health condition at issue andthe strength of the causal link between that condition and the offending. The Courtreferred to existing authority which had suggested discounts in the range of 12 to 30per cent were potentially available in cases involving methamphetamine offending.24[28] We accept on the reports before the Court that there was a link betweenMr Wratt's ADHD and his addiction. We also accept that his longstanding addictionto methamphetamine was a factor in his offending. In this way, we consider his ADHDand his addiction were operating in combination. The appropriate discount was onethat reflected this combination rather than discrete discounts for each factor.[29] In considering the appropriate discount, we note that Mr Wratt's ADHDdiagnosis was made many years ago. He has been treated for it and knows thattreatment is available to him. He has become addicted to methamphetamine as analternative to proper treatment but has had previous opportunities to seek help for hisaddiction if minded to do so, and this help is still available to him. More importantly,we accept the Crown's submission that the causative link between Mr Wratt's ADHDand addiction and the significant quantity he imported is weak. Mr Wratt's onlyjustification for the quantity he ordered was that it was cheaper to do so.[30] In these circumstances, we consider that the Judge's discount of 10.5 per centwas within range. By way of comparison we refer to two recent decisions ofthis Court:23 At [152].24 At [153]. However, the Court clarified that this was "not the case in which to review discountlevels for contributing mental health conditions".(a) Smith v R:25 Mr Smith was a wholesale level supplier of at least 15 kgof methamphetamine for a Mongrel Mob distribution network. His rolewas assessed at the "upper end of significant".26 A discount of justover four per cent for his addiction and rehabilitative prospects wasallowed by the sentencing Judge. On appeal this Court upheld thatdiscount for rehabilitative efforts. It considered that no discount wasavailable for Mr Smith's addiction because the motivation forthe offending was primarily financial and the decision to engage inlarge-scale commercial offending was overwhelmingly rational.27(b) Clark v R:28 Mr Clark was found to be in possession of a total of 583 gof methamphetamine and to have conspired with others to obtaina further 137 g of the drug. He was in contact with a high-level dealerand was running his own supply operation, and so had a "significant"role.29 A 15 per cent discount for addiction was not disturbed on appealbecause Mr Clark was acting partly for his addiction and partly forfinancial gain.30[31] We consider Mr Wratt's situation to be more comparable to that of Mr Clarkthan that of Mr Smith and the discount allowed by the Judge to be sufficiently closeto that left undisturbed in Clark v R so as to be within range.Moses v R[32] We note for completeness that, in accordance with authority that pre-dated thisCourt's decision in Moses v R, the Judge applied the guilty plea discount afterthe discount for Mr Wratt's ADHD and addiction issues. Applying the Moses v Rmethodology would result in an end sentence of just over six years and seven months'25 Smith v R [2020] NZCA 221.26 At [16].27 At [20]–[22].28 Clark v R [2020] NZCA 641.29 At [14].30 At [22].imprisonment.31 We consider that the Judge's end sentence of six years andnine months' imprisonment is not manifestly excessive relative to this.32Result[33] The application for an extension of time to appeal is granted.[34] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent31 See Moses v R, above n 5, at [30].32 See also Roberts v R [2020] NZCA 441 at [53]–[54].