SMITH v NEW ZEALAND POLICE [2018] NZHC 878

SMITH v NEW ZEALAND POLICE [2018] NZHC 878 [1 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2016-044-4531[2018] NZHC 878BETWEEN ELIAS VALENTIN SMITHAppellantAND NEW ZEALAND POLICERespondentHearing: 1 May 2018Appearances: M Dyhrberg QC and H G de Groot for AppellantD R Green for RespondentJudgment: 1 May 2018Reissued: 4 May 2018ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:M Dyhrberg QC, AucklandH G de Groot, AucklandMeredith Connell, AucklandIntroduction[1] On 13 April 2018, Elias Valentin Smith was convicted and sentenced on 14charges under the Misuse of Drugs Act 1975 (the "Act"). Judge Collins imposed twoyears and three months' imprisonment for these charges, from a starting point of sixyears' imprisonment.1[2] Mr Smith appeals his sentence on grounds it is manifestly excessive. Inparticular:(a) the starting point was too high because the Judge wrongly:(i) combined two charges of attempting to import LSD as the leadoffending;(ii) relied on inappropriate case authorities; and(iii) imposed a sentence disproportionate to that received by MrSmith's co-offender; and(b) discounts allowed for his rehabilitation and autism spectrum disorderwere too low, and the Judge failed to allow any discount for remorse orgood character.Mr Smith's counsel, Marie Dyhrberg QC, submits the Court should properly imposea sentence of under two years' imprisonment, which should then be commuted into asentence of home detention – the outcome she had urged on Judge Collins. Sheexpressly accepts the Judge's 12-month uplift for other offending, and his two yeardiscount for youth "were within the bounds of discretion".Factual background[3] There is concern about importation into New Zealand of illegal drugs acquiredthrough the 'dark web', with payment made through cryptocurrency such as Bitcoin.Mr Smith became involved in this emerging method of drug importation at the age of1 R v Smith [2018] NZDC 7141 [District Court decision].17, while completing his first year of university. He soon invited a fellow student tojoin him, Nicholas Barker, by receiving drug importations at Mr Barker's home.2 MrBarker has pleaded guilty to his involvement in these matters. He was sentenced to10 months' home detention, and 100 hours of community work.[4] On 20 March 2017, Mr Smith pleaded guilty to 14 charges which fall into threecategories of offending:3(a) attempt offending:(i) two charges of attempting to import 80 tabs and 760 tabs,respectively, of the class A drug lysergic acid diethylamide(LSD), which was taken as the lead offending;(ii) attempting to import an unknown amount of the class B drugfentanyl;(iii) attempting to import 7 grams of the Class B drug amphetamine;(b) supplying and offering to supply offending:(i) supplying LSD (one tab);(ii) offering to supply LSD (amount unspecified);(iii) supplying the Class A drug 2,5-dimethoxy-4-methlamphetamine (two doses);(iv) offering to supply 2,5-dimethoxy-4-methlamphetamine(amount unspecified);(v) supplying the class B drug MDMA (two doses);(vi) offering to supply the class B drug MDMA (amount unknown);and(vii) offering to sell the Class C drug 3-methoxy PCP (amountunspecified); and2 In exchange for payment and discounts on bulk drug sales.3 All charges are under the Misuse of Drugs Act 1975 ["Act"], ss 6 and 7; and (in the attemptingoffending) the Crimes Act 1961, ss 72(1) and 311(1).(c) possession offending:(i) possession of the class A drug methamphetamine (0.1 grams);(ii) possession of the class C drug 3-methoxy PCP (amountunknown); and(iii) possession of the class C drug clonazepam (7.6 grams).[5] The 'attempt charges' arise out of interceptions of mail at the International MailCentre at the Auckland International Airport. On 7 October 2015, mail addressed toMr Smith's home address was found to contain 80 tabs of LSD. Another itemintercepted on 2 June 2016, this time addressed to Mr Barker, was found to containthe amphetamine. Further LSD was intercepted and seized by Customs on 19 October2016. Because the drugs were seized at the airport – technically, before entering NewZealand – Mr Smith was only charged with attempted, rather than actual, importationof those drugs.[6] The police conducted a search at Mr Smith's parents' home on 10 November2016. They located, among other items, his cell-phone, and various drugs giving riseto the three 'possession charges'. His cellphone was seized, and the text messagesanalysed. These detailed communications relating to the supply of multiple kinds ofdrugs formed the basis of the 'supply and offer' charges.District Court Decision[7] Judge Collins' sentencing notes begin by detailing the facts of the offending,culminating in his summary of the offending:4You were offering a wide range of drugs, you had a [prescribed] price forthem, you offered people discount effectively for bulk. In short, Mr Smith, atyour young age you were dealing in Class A drugs and you were [a] drugdealer.[8] His Honour took as the lead offending the two charges of attempting to importLSD, intending to combine the two amounts (80 tabs and 760 tabs) but miscalculating4 District Court decision at [13].the total as 860 tabs.5 In imposing a starting point of six years' imprisonment, theJudge appears to have taken into account:(a) the pre-sentence report, and the "comprehensive" reports of DrSakdalan, Dr Purcell, and Dr Sullivan, each of whom providedspecialist advice as to Mr Smith's mental health;6(b) consistency in sentencing for "serious Class A drug offending",7 andspecifically the comparison of Mr Smith's offending with that of his co-offender, Mr Barker:8His Honour Judge Hinton took a starting point of four and ahalf years' imprisonment. It is clear from the summary I haveread that your involvement was significantly more seriousthan his, in fact I regard an aggravating factor as far as youare concerned, that you enlisted him in this criminalenterprise.(c) enlisting Mr Barker's assistance and the premeditated nature of theoffending as aggravating factors, the Judge noting "[i]t was sustainedover many months, there was a degree of sophistication in it as well";9and(d) the numerous authorities referred to the Court by both counsel,although the only case specifically referred to is the District Court'sdecision in R v Faulkner HC Auckland CRI-2006-004-25880, 15 April2008, which the Judge described as "the most helpful in terms ofguidance today", and apprehended Judge Hinton, who sentenced MrBarker, took a similar view.105 District Court decision at [18].6 At [14].7 At [18].8 At [15].9 At [15]-[16].10 At [16]-[17].From this starting point, the Judge adopted a one year uplift for the balance of theoffending, which the Judge described as both "fair and modest",11 to arrive at a startingpoint of seven years' imprisonment.12[9] His Honour then applied what he considered to be "the most generous"discounts available, notwithstanding his reservations about just how causative ofoffending some of those mitigating factors might be.13 He applied discounts of:14(a) two years for youth, which he again described as "generous";(b) one year for Mr Smith's personal circumstances, namely his autismspectrum disorder/Asperger syndrome diagnosis;(c) one year for his efforts at rehabilitation; and(d) the maximum 25 per cent for early guilty pleas.This brought the effective end sentence to two years and three months' imprisonment,the Judge observing "as hard as I might try and find on a principle[d] basis Mr Smith,what might be further credits, I simply cannot do that".[10] On all the other charges of importing or dealing in Class A and Class B drugs,the Judge imposed concurrent terms of 12 months' imprisonment. Two months'imprisonment was imposed for possession of methamphetamine, and Mr Smith wasconvicted and discharged on the charges for possession of Class C controlled drugs.Grounds of appeal[11] I have already outlined the basis for Mr Smith's appeal.15[12] More generally, Ms Dhyrberg complains of the Judge's "striking lack ofreasoning in fixing the starting point and awarding discounts", although she disclaims11 District Court decision at [17]-[18].12 At [19].13 At [19].14 At [20].15 At [2] above.reliance on the "general requirement to give reasons" in s 31 of the Sentencing Act2002 as an appeal ground. Section 31(2) provides reasons are to be given "withwhatever level of particularity is appropriate to the particular case". I do not acceptthe Judge erred in giving insufficient reasons – it suffices he spelled out hisarithmetic.16 But I accept counsel's broader point, at least to some extent, that:17Appellate courts are more likely to make modest adjustments where thesentencing judge in the first instance has failed to articulate his or hermethodology.Appeal against sentence[13] Section 250(2) of the Criminal Procedure Act 2011 requires me to allow theappeal if I am satisfied:(a) for any reason, there is error in the sentence imposed on conviction;and(b) a different sentence should be imposed.In any other case, I must dismiss the appeal.18[14] The Court of Appeal has confirmed s 250(2) was not intended to change theprevious approach taken by the courts under the Summary Proceedings Act 1957.19Despite s 250 making no express reference to "manifestly excessive", this principle is"well-engrained" in the Court's approach to sentence appeals.20 The High Court willnot intervene where the sentence is within the range that can properly be justified byaccepted sentencing principles. Whether a sentence is manifestly excessive is to beexamined in terms of the sentence given, rather than by the process by which thesentence is reached.2116 R v S (CA64/06) [2007] NZCA 243 at [79].17 Simon France (ed) Adams on Criminal Law - Sentencing (online looseleaf ed, Thomson Reuters)at [SAB5.02].18 Criminal Procedure Act 2011, s 250(3).19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].20 At [33], [35].21 Ripia v R [2011] NZCA 101 at [15].Starting point—choosing the lead offending[15] Mr Smith's most serious offending was attempting to import 760 tabs of LSDon 19 October 2016 to Mr Barker's address; his next most serious was his attemptedimportation of a lesser amount a year earlier, then of 80 tabs. The Judge combinedthese two offences into a "global" attempt offence, setting a six year starting point. MsDyhrberg says that errs, preferring the orthodoxy of a single lead offence to whichuplifts are applied for other offending.[16] The Crown points to one case – R v Eardley-Wilmot – in which Dobson Jtreated disparate drug offending in the course of a year as "effectively the sametransaction", and concurrently the 'principal offence' for the setting of a startingpoint.22 The joined-up offending there was of a charge of conspiracy to import class Adrugs and a charge of importation of class B drugs. Inferentially, the Court of Appealacknowledged the approach was available.23[17] Ms Dyhrberg says, if there is to be combination in lead offending, it shouldreflect the uplift that would apply from the more orthodox approach, rather than toreflect a single offence of the combined severity. She points out the 18-month disparitybetween Mr Smith's six and Mr Barker's four and a half year starting points, Mr Barkernot being involved in the first attempt to import. She says the starting point could nothave been uplifted by 18 months if the two offences were disaggregated, but ratheronly by two months. Particularly given the narrowness of the margin by which MrSmith failed to qualify for home detention, his counsel says this amounts to amanifestly excessive sentence. I deal with the issue as a matter of consistency insentencing, to which I now turn.—consistency in sentencing[18] The Judge remarked the starting point needed to be one of "six years'imprisonment to maintain any sort of consistency by reference to the other cases". Ms22 R v Eardley-Wilmot HC Wellington CRI-2008-085-684, 22 February 2008 at [23].23 R v Eardley-Wilmot [2008] NZCA 213 at [8] and [16].Dyhrberg now suggests on a fair consideration of the most relevant authorities theCourt could go no higher than a starting point of four years (although her submissionto Judge Collins was of a starting point of five to five and half years).[19] Judge Collins read and considered all the cases referred to the Court, but onlyFaulkner is given explicit mention. His Honour was fortified in his reliance on thiscase by his comprehension Judge Hinton took the same view of its instructiveness,although Judge Hinton makes no express mention of the case.[20] Given the range of relevant variables in Class A drug offending, it may bedifficult to find close comparators. It is accepted manufacture and importation aremore serious offending than possession for supply or supplying.24[21] Ms Dyhrberg seeks further to distinguish LSD and other hallucinogenicoffending from that of methamphetamine offending on grounds of the latter's"uniquely pernicious quality and the human misery that drug causes". She relies onthe Court of Appeal's decision in R v Stanaway as acknowledging the greater leniencygranted the former offending.25 She responds to the Court of Appeal's caveat suchleniency may not be justified "if potential addiction no longer is to be regarded as thepredominant measure of perniciousness", by pointing out the Ministry of Health'sDrug Harm Index records "hallucinogenic and psychedelic drugs (specifically LSD)consistently register the lowest levels of harm (by far) across the measurabledomains". These domains are "personal harm", "harm to family and friends", "cost tothe community", "organised crime", "tax avoidance", "cost of intervention" and"social cost and total harm".26[22] I doubt that is quite what the Court of Appeal had in mind. The Court of Appealnoted its earlier advice in R v O'Donnell:27 the difference in sentences between [addictive drugs such as heroin and theClass A hallucinogens such as LSD] should not be large and a review of24 R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410 (CA) at [22].25 R v Stanaway [1997] 3 NZLR 129, (1997) 15 CRNZ 32 (CA).26 McFadden Consultancy Research Report: The New Zealand Drug Harm Index 2016 (2nd ed,Ministry of Health, Wellington, 2016).27 R v Stanaway, above n 25, at 135.sentences suggests that this difference may in some cases have resulted inunduly lenient sentences for importing or dealing in the hallucinogenic drugs.The Court of Appeal's review of decisions in Stanaway found this position justified.The Court of Appeal concluded:28Of course the nature and effect of drugs may depend upon purity and otherfactors. Further, sentencing must take account of a wide range of factors apartfrom the particular drug formulation. Factors such as difficulty of detection,the extent of social problems caused by the availability of the drug and theperceived need for deterrence are factors as well as those identified by theJudge.It may be that in a suitable case the Court will need to consider whether anysignificantly lower level of sentences for offences involving the class Ahallucinogens still is justified in light of current knowledge of physical andpsychological effects and other social considerations. It may be that potentialaddiction no longer is to be regarded as the predominant measure ofperniciousness. That is an exercise to be embarked upon only on the basis ofrelevant evidence.[23] That is not an exercise on which I am prepared to embark on the evidencebefore me. The wider principles of sentencing may require greater focus on offenders'roles in the offending, rather than its subject matter. Mr Smith's offending was clearlyfounded in importation, rather than focused on any particular class of drugs. Thegateway nature of the offending may have its own significance in sentencing. TheCourt of Appeal has noted Class A drug importation rarely should result in a non-custodial sentence,29 which endorses the presumption of imprisonment for Class Adrug offending set out in s 6(4) of the Misuse of Drugs Act 1975.[24] That said, Faulkner, while not irrelevant, is not the most germane authorityavailable: after all, it concerned a charge of possession of supply not (actual orattempted) importation. I accept the Crown's point, in the present circumstances,nothing material is to be drawn from the attempt nature of the offending. Theimportation came to an end on enforcement authorities' intervention, and Mr Smithwas directly involved prior to that time.30 There was nothing more for him to do interms of importation.28 R v Stanaway, above n 25, at 142.29 R v McCarthy (1996) 13 CRNZ 578 (CA).30 R v Mason CA 340/05, 16 March 2006 at [9].[25] Judge Collins also had before him R v Tregaskis,31 which Ms Dyhrbergemphasises has 'great similarity' to the present facts. The 'similiarity' is Ms Tregaskisis Mr Barker's analog. The starting point for sentencing her co-offender – MrHamilton, Mr Smith's analog – for the Customs-intercepted importation of 751 LSDtabs was three and a half years' imprisonment. That same starting point was adoptedin R v Eardley-Wilmot for Customs-intercepted importation of 400 LSD tabs.32 Thatwas determinedly a six month increase over his lesser-involved co-offender's threeyear starting point.33 While I say 'analog', that is only in role, and not in sophisticationof the offending. All four of those cases involved what may be opportunisticimportations involving dispatch by principal offenders from Canada to their co-offenders in New Zealand. The opportunism may be the apparent relative ease ofavailability of LSD in Canada.[26] The Crown points to R v Brown, from which it derives a starting point of fiveyears and four months.34 I am unsure the derivation is legitimate. Mr Brown pleadedguilty to his principal role in various drug-related offending, including importation of35 LSD tabs, calculated to amount to some $4.1m over a three-year period. On thelead offences – four charges of importing Class B drugs in 2006 and 2007 – his initialstarting point was 14 years' imprisonment, uplifted to 15 years for his criminal history,and globally discounted by 4 years, "or over 25 per cent discount", for his advancedage, poor health, guilty pleas and remorse.35 Within that, he was concurrentlysentenced to four years imprisonment on the LSD importation charge. There is noindication the same calculation was applied to the concurrent sentences, which maybetter be regarded as effectively starting points, each not subjected to the lead offences'uplift and discount. And, even if four years was the end point, reversing the year'suplift and 25 per cent discount do not give a materially different starting point.[27] Similarly I am unsure of the legitimacy of Ms Dyhrberg's assumption of 30 percent discounts to reach starting points of three years and three months and two years31 R v Tregaskis HC Wellington CRI-2004-085-9530, 7 October 2005.32 R v Eardley-Wilmot, above n 22, at [7] (recorded as 200 tabs in R v Eardley-Wilmot, above n 23,at [6]).33 R v Arhaim HC Wellington CRI-2005-485-123, 15 September 2005 at [13].34 R v Brown HC Auckland CRI-2008-004-20453, 3 February 2011.35 At [50].seven months for importations of respectively 480 and 988 LSD tabs. The Court ofAppeal described the offending in Power as "an amateurish importation lacking in anydetailed planning and sophistication".36 In McCarthy, the Court of Appeal said thetwo-year end term of imprisonment there could not be contemplated, given theseriousness of the offending and the need to deter others, but for the "most unusual"circumstances of this 'unsophisticated' offending.37[28] Having regard for these cases, the appropriate comparable starting point foroffending in a principal role in organised LSD importation is within a band from threeand a half to four and a half years' imprisonment. To the extent starting points can bediscerned in them, the majority of the cases referred to in Faulkner as foundation forits five-year starting point fall within that band. The particular outlier is the first ofthose, R v Briggs (relating to three importations, totalling 580 LSD "doses"), wherethe Court of Appeal says the six-year sentence was "severe", but not manifestlyexcessive in itself. The Court of Appeal accepted comparison with his less-involvedco-offender's four-year sentence was "disparate [a] sentence of five years wouldhave been a truer measure of punishment", to which the sentence was reduced onappeal. That suggests an inferred starting point also within the band. However, inFaulkner, the Judge took the view the cases supported starting points of between fourand a half to five and a half years.38[29] I recognise my indicated band is to repeat the 'undue leniency' in LSDimportation offending identified by the Court of Appeal. I would extend the band tofive and a half years, to allow for the approach taken in Faulkner in reliance on thecases cited there. But I am unable materially to deviate from all those cases, withoutthe exercise indicated necessary by the Court of Appeal. I observe, from the cases towhich I have been referred, quantities of LSD imported may be less determinative insentencing than the offender's role in the importation, and its level of sophistication.[30] Ms Dyhrberg disputes Mr Smith pressured or coerced Mr Barker intoparticipating in the offending. She points to the police officer in charge's agreement36 R v Power CA187/96, 22 September 1996 at 10.37 R v McCarthy (1996) 13 CRNZ 578 at 579-580.38 R v Faulkner HC Auckland CRI-2006-004-25880, 15 April 2008 at [11].Mr Barker chose to participate. That, however, does not respond to the point Mr Smithinitiated the offending, and enlisted Mr Barker's assistance. Also, while I acknowledgeMs Dyhrberg's downplaying of the sophistication of Mr Smith's conduct to the extentit relies on advances in technology, covert use of new forms of commercialtransactions to break the law has its own sophistication.[31] It is also necessary for Mr Smith's starting point to reflect his more seriousoffending, compared to that of Mr Barker (also within the band). A three to six monthincrease on Mr Barker's four and a half year starting point would suffice. In my view,Judge Collins' six-year starting point for Mr Smith erred. The Judge provided noparticular reason for his 18 month uplift, which was to move Mr Smith's starting pointmaterially beyond even the extended band I have identified from the cases, the upperend of which was express in Faulkner, relied on by the Judge.[32] Ms Dyhrberg also argues for a downward adjustment in starting point to reflectwhat she says is the "limited commerciality" of the offending, although her submissionis principally to say the offending is attributable to Mr Smith's particular disabilities.But Mr Smith's offending was, perhaps characteristically, commercially disciplinedand technologically advanced. It cannot be said Mr Smith's heightened curiosity orfixation with hallucinogenic drugs, or his naïve and diminished decision-making inobtaining them, caused his offending. That his starting point is not at the top of theband provides sufficient headroom for yet more commercially mercenary offending.Discounts[33] Ms Dyhrberg criticises as "manifestly inadequate" Judge Collins' one yeardiscount for Mr Smith's rehabilitation, and one year discount for Mr Smith's mentalhealth condition, and complains the Judge failed to apply any discount for remorseand character. I prefer the view the Judge's periodic discounts for other than MrSmith's guilty plea is global recognition of the various impacts of Mr Smith's mentalhealth at his young age (itself a discount offered in part to recognise neurologicalimmaturity), including in admitting and addressing his own offending. I acknowledgeMr Smith's diligence in rehabilitation. The Judge rightly harboured reservations as tothe degree to which Mr Smith's mental health affected his culpability. I do not thinkthe Judge erred at all in that respect. A more arithmetic, but (in light of the pervasiveimpact of Mr Smith's mental health) artificial, attribution of available percentagediscounts across all available fields would not arrive at a materially different figure.End sentence[34] Applying the judge's uplift and discounts proportionately to a five year startingpoint results in an end sentence of 22-23 months' imprisonment. The Judge's end pointof two years and three months' imprisonment is some 20 per cent more than that. Giventhe absence of explanation for his choice of starting point, in the face of the rangeexpressly identified by Faulkner on which he relied, I am entitled to make modestadjustment. Particularly in circumstances in which the statutory presumption ofimprisonment for Class A drug offending is open to rebuttal if the offender is under 20years of age, and the less restrictive sentence of home detention would then beavailable, I find Mr Smith's sentence materially excessive, and I set it aside.[35] I substitute a sentence of twenty-two months' imprisonment and commute thatto a period of 11 months' home detention on the standard conditions and specialconditions:(a) not to possess, consume or use any alcohol or drugs not prescribed toMr Smith;(b) to attend and complete an appropriate mens departmental programmeto the satisfaction of a probation officer, the specific details of theappropriate programme shall be determined by a probation officer;(c) to undertake and complete appropriate assessment treatment,counselling as directed by and to the satisfaction of a probation officer;and(d) to attend and complete an appropriate Odyssey House ResidentialProgramme to the satisfaction of a probation officer. The specificdetails of the appropriate programme shall be determined by aprobation officer.(e) home detention is to be served at his family home, which for reasons ofprivacy I am not going to give out, but they have been determined assuitable for electronic monitoring if necessary.—Jagose J