MARRINER v POLICE [2016] NZHC 598

MARRINER v POLICE [2016] NZHC 598 [7 April 2016]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI-2016-443-007[2016] NZHC 598BETWEEN DEON LESLIE MARRINERAppellantAND NEW ZEALAND POLICERespondentHearing: 6 April 2016Counsel: K M Marriner for appellantS J Simpkin for respondentJudgment: 7 April 2016RESERVED JUDGMENT OF DOBSON J[1] On 13 January 2016, Mr Marriner was sentenced by Judge Roberts in theDistrict Court at Hawera to a term of two years and five months' imprisonment.1That comprised a sentence of that length on the lead conviction of offering to sell methamphetamine, with concurrent sentences also imposed of: eight months' imprisonment for offering to supply morphine; twelve months' imprisonment for offering to supply cannabis; twelve months' imprisonment for possession of utensils for theconsumption of methamphetamine; and six months' imprisonment for offering to sell or supply a psychoactivesubstance.1 Police v Marriner [2016] NZDC 231.[2] Mr Marriner has now appealed against this sentence. It is argued for Mr Marriner that there was an error of law in that the Judge incorrectly assessed aggravating factors, should have allowed a larger discount for guilty pleas and failed to consider the possibility of a sentence of home detention.[3] The appeal is brought under s 250(2) of the Criminal Procedure Act 2011, which provides that the appeal must be allowed if the appellate court is satisfied that there is an error in the sentence, and that a different sentence should be imposed.[4] The charges resulted from a search warrant executed at Mr Marriner'saddress, in the course of which the Police recovered eight small plastic bags with unidentified residues, 145 other bags appropriate for the supply of drugs, electronic scales, four morphine tablets, five small bags of a psychoactive substance. Also seized were a plastic straw, a sponge, cotton buds, a gas burner and a cannabis bong, all inferentially used as equipment in the taking of illegal drugs. A glass pipe for a similar purpose was also found concealed on Mr Marriner's body.[5] After executing the warrant, the Police sought text message data on a cell phone used by Mr Marriner. Apparently as a result of administrative error, the Police only obtained records of four days' activity on the cell phone at the end of July 2015.Within that four day period, the text messages showed Mr Marriner had sent 551 texts offering to supply drugs, and had received 76 positive responses.[6] For sentencing purposes, it is agreed that the charges involved 2.5 grams of methamphetamine, three unspecified amounts of cannabis and undetermined amounts of morphine and synthetic cannabis. The Judge assessed the nature and level of dealing by reference only to the four day period for which there was text message evidence.[7] The Judge's sentencing process began by setting a starting point within bandone from R v Fatu.2 That band covers low level supply of amounts less than five grams of methamphetamine. The starting point nominated was two and a half years.The Judge's observations included:2 R v Fatu [2006] 2 NZLR 72 (CA).[9] but there is a distinct likelihood that you were indeed fortunatethe police could only recover but four days of activity. The intensity of the phone use is such that it would be most unlikely that such activity started and ended on those days that I have nominated for the four day period.[8] In a later list of what the Judge saw as aggravating factors, the Judge included"the intensity of the offending".[9] That is criticised as unjustified when the sentencing only involved activity over a four day period. I do not accept that this criticism is valid. Promoting the availability of various drugs in 551 text messages over four days is appropriately characterised as intense drug dealing activity. Although the Judge explicitly confined the assessment of the criminality to what had occurred in those four days, it was legitimate for him to be mindful that it was most unlikely the snapshot of Mr Marriner's activity that the Police had obtained from four days of text data would precisely coincide with the only period in which a similar level of drug dealing activity occurred.[10] A starting point of two and a half years' imprisonment was clearly within therange available to the Judge. The amount assumed to be involved for sentencing purposes of 2.5 grams was half of the upper limit as to quantity for offending within band one of Fatu. That was also the level of the sentence relative to the maximum within that band. A slightly lower starting point is appropriate for offers to supply methamphetamine, as distinct from convictions for supply. However, the intensity of the activity demonstrated by the text messages would certainly justify restoring any such reduction.[11] The next step in the Judge's sentencing analysis was to apply a two monthuplift for the remainder of the convictions on which concurrent sentences were to beimposed, and then a further four months' uplift because the drug offending wascommitted whilst Mr Marriner was on bail.[12] The second component of this uplift, namely the four months for offending whilst on bail, is challenged on appeal as being overly severe. It is submitted that an uplift of no more than two months was appropriate in the circumstances.[13] However, offending by Mr Marriner whilst on bail is a common feature of his relatively lengthy (if low level) criminal history, and the pattern of offending shows a disregard for the law. When seen as a component of a total uplift for concurrent offending and the fact that the offending was committed whilst on bail, it comprises an uplift of 20 per cent of the starting point. That cannot be criticised as excessive. The respondent cited Clunie v R in which the Court of Appeal approved an uplift of approximately 20 per cent for concurrent lesser drug dealing convictions and the fact that the offending had occurred whilst the offender was on bail.3[14] After applying that combined uplift of six months, the end sentence was threeyears' imprisonment before applying a discount for guilty pleas. The Judge assessedthe guilty pleas as "not early". That is criticised on appeal, Ms Marriner arguing that because different counsel were appearing for Mr Marriner on different groups of charges, there was justifiable and reasonable delays in his indicating his preparedness to plead guilty. It was argued that instead of 20 per cent, a discount ought to have been allowed of between 20 and 25 per cent, and that the full 25 per cent should have been considered.[15] The respondent supported the extent of discount granted on the basis that it was a strong case against Mr Marriner, particularly in light of significant admissions he made when interviewed after arrest. Further, that the guilty pleas were entered some time after all charges had been laid and after four court appearances.[16] In reply, Ms Marriner submitted that the number of court appearances should not be determinative where there were practical complications. Counsel then acting on all of the charges subject to the present appeal had real logistical difficulties in taking instructions and discussing with Mr Marriner the disclosure as it was provided. Ms Marriner argued that the only factor seen by the Judge as disentitling Mr Marriner to a full 25 per cent discount was the apparent delay in making the pleas and the Judge had erred in failing to appreciate the reasons why a reasonable decision to plead guilty to the charges took the time that was involved.3 Clunie v R [2013] NZCA 110 at [22].[17] I am not persuaded that any error in the Judge's characterisation of how early the guilty pleas were made is material to the outcome. If that component of the sentencing exercise were done again, some account could well be taken of the relative strength of the Police case. It would be very difficult to justify a full five per cent difference in the discount applied, and in any event that would only reduce the sentence by two months. I am not persuaded that that is justified.[18] The Judge is also criticised for not having given a separate discount for Mr Marriner being subject to strict bail conditions. He was confined to the bail address continuously for a substantial period. This factor was not considered by the Judge, and there is an issue as to whether it was raised with him.[19] The argument invites analogy with s 9(2)(h) of the Sentencing Act 2002, which requires a sentencing judge to consider time spent on electronically monitored (EM) bail. Mr Marriner was not on EM bail and accordingly that section does not strictly apply. However, from 20 October 2015 Mr Marriner was subject to a sentence of community detention being served at the address to which he had been bailed. His practical position was the same as if he was on EM bail and accordingly a like approach ought to apply.[20] The respondent submitted that any discount in recognition of the time spent on bail should be minimal, given that the total period on restrictive bail conditions was some five months, and that although Mr Marriner was initially subject to a 24 hour curfew, this was subsequently varied to allow him an hour away from his address each day. It was also argued that any credit should be reduced because Mr Marriner breached his bail on one occasion, thereby limiting the discount that he ought to be entitled to.[21] Had the Judge been urged to apply a discount, no criticism could attach if he had provided a modest discount of, say, one or two months. Although it appears that the circumstances of the breach of bail were relatively innocuous, they could still disentitle him to anything more than a very modest discount.[22] As is often acknowledged, it is not the discrete components of a sentencing analysis that all need to be within appropriate ranges, but rather the appropriateness of the overall sentence. In this case, I am not persuaded that any of the components in the sentencing process that are challenged are made out, with the possible exception of minor adjustments for a larger discount for "more prompt" pleas andsome measure of discount for the time spent on restrictive bail conditions. If addressed discretely, I would be concerned that altering the sentence to take those possible factors into account would be tinkering. On the test under s 250(2), I am not persuaded that any omissions amount to an error because the impact of taking them into account is sufficiently modest to leave the end result within the appropriate range. It follows that I am not persuaded a different sentence should be imposed.[23] The appeal is dismissed.Dobson JSolicitors:Parker and Marriner, New Plymouth for appellantCrown Solicitor, New Plymouth for respondent