EVANS v POLICE [2020] NZHC 3161

EVANS v POLICE [2020] NZHC 3161 [2 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000344[2020] NZHC 3161BETWEEN IAN EVANSAppellantAND NEW ZEALAND POLICERespondentHearing: 1 December 2020Counsel: MN Pecotic for AppellantA Al-Janabi for RespondentJudgment: 2 December 2020JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 2 December 2020 at 10 am.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Manukau.MN Pecotic, Auckland.The appeal[1] Ian Evans pleaded guilty to two charges of possessing methamphetamine forsupply (253.9 grams); possessing a stun gun; and possessing ammunition.Judge T V Clark imposed a term of four years and two months' imprisonment, with aminimum period of half. Mr Evans appeals. He contends the Judge erred and a lessersentence should be imposed. The Crown resists, citing among other things, Mr Evans'history of like offending.Background[2] On 16 August 2017, Mr Evans and his teenage son went to an address inPapakura. Mr Evans knew the occupant, who opened the garage. Mr Evans got outof his car with a backpack. He left shortly thereafter. His son remained behind.[3] Police followed Mr Evans and activated their lights. Mr Evans threw a stungun out the window and stopped further down the road (at a second Police car). Insidehis car, Police found a methamphetamine pipe and 122.1 grams of methamphetaminein a container hidden under the dashboard. Mr Evans' DNA was later found on thecontainer.[4] In the backpack (at the Papakura address), Police found 131.8 grams ofmethamphetamine in a container; 28 rounds of .22 calibre ammunition; unused,resealable plastic bags; electronic scales; and a broken methamphetamine pipe.[5] Mr Evans exercised his right to silence. He was promptly charged. Mr Evanspleaded guilty 1 November 2018. For reasons that need not detain us, sentencing wasdelayed until 9 July 2020.[6] The Judge adopted a starting point of six years' imprisonment for themethamphetamine offences. She added nine months for the other offending, thenanother nine months for Mr Evans' record. The Judge deducted 25 percent forpersonal mitigating features, including methamphetamine dependency. The Judgededucted another 20 percent for the guilty pleas. As observed, this produced afour-year, two-month prison sentence. The Judge ordered Mr Evans serve at least half.[7] Mr Evans filed an affidavit before sentencing in which he said, essentially, this.He went to the address to sell his car, driving there in a borrowed one. The occupantasked him to deliver drugs in return for methamphetamine or money. The occupantcould not as he was serving a sentence of home detention. Mr Evans agreed.Mr Evans did not know the stun gun was in the car; he "panicked" and threw it out thewindow when he saw Police. The ammunition was Mr Evans'.The methamphetamine and drug-dealing paraphernalia were the occupant's, albeitMr Evans had agreed to act as a courier in relation to the drug.[8] The account strikes me as convenient. However, the Crown acknowledgedbelow it could not disprove it, a disputed facts hearing was abandoned, and theparties—and Judge—proceeded on the assumption Mr Evans' affidavit identified hisrole. I, therefore, do likewise.Starting point[9] On behalf of Mr Evans, Ms Pecotic contends the Judge should have adopted astarting point below band three of Zhang v R.1 As will be recalled, this band providesstarting points of between six and 12 years' imprisonment for dealings inmethamphetamine between 250 and 500 grams. Band two provides starting points ofbetween two and nine years' imprisonment for dealings in less than 250 grams.[10] Citing the post-Zhang cases of Phillips v R2 and Singh v R,3 Ms Pecoticemphasises the flexibility in sentencing in this area, particularly when the offender hasplayed a lesser role like Mr Evans. Ms Pecotic also emphasises Mr Evans'longstanding methamphetamine dependency; Mr Evans began usingmethamphetamine when his mother died in 2003.[11] The Crown contends Phillips and Singh are distinguishable and the startingpoint justifiable given Su v R4 and R v Carnachan.51 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.2 Phillips v R CA771/2018 (decided with Zhang v R¸ above n 1, at [204]–[228].3 Singh v R [2020] NZCA 211.4 Su v R [2020] NZCA 128.5 R v Carnachan [2019] NZHC 3025.[12] The arguments are best assessed through the cited cases. Singh is ratherdifferent. Mr Singh agreed to receive two methamphetamine packages sent fromabroad. The packages contained more than four kilograms of methamphetamine, butit was common ground Mr Singh did not know how much was coming. Mr Singh wasa mere "catcher". The Court of Appeal substituted a starting point of eight years'imprisonment.[13] Phillips is somewhat closer to our facts. Ms Phillips and her partner, the leadoffender, twice supplied methamphetamine totalling at least six kilograms. The Judgefound Ms Phillips committed the offences "out of a sense of loyalty".6 Ms Phillipsargued the starting point was too high. The Court of Appeal rejected the argument,noting it was "well below the entry point" of the corresponding band.7[14] Carnachan is a first-instance decision only, hence of little relevance. Thisleaves Su. Mr Su possessed 233 grams of methamphetamine, packaged in plastic,resealable bags. Electronic scales and an apparent tick list were also found at hishome. The sentencing Judge concluded the offending might have been driven byMr Su's drug dependency. The Judge also concluded Mr Su's role was "relativelyminor". She adopted a starting point of six and a half years' imprisonment, so, withinbut towards the bottom of band three.[15] The Court of Appeal considered Mr Su a courier and storeman, albeit withsome role in preparing methamphetamine for sale by others. It thought it likely Mr Su"acted under direction and did not share in the monetary gains, beyond receivingenough methamphetamine to feed his habit".8 The Court substituted a starting pointof five and a half years' imprisonment, observing Mr Su's "lesser nature of his role inthe operation reduces the seriousness of his offending substantially".9[16] Su was not cited to Judge Clark. Had it been, it is likely the Judge would haveaccepted the submission Mr Evans' starting point should have been lower than band6 Zhang v R¸ above n 1, at [207].7 At [218].8 Su v R, above n 4, at [23].9 At [24].three even though he was acting for some reward (in the form of methamphetamine,or money to buy that drug).[17] Ms Pecotic argues Mr Evans' culpability is less than Mr Su's because Mr Suwas also a storeman in an ongoing enterprise. By comparison, Mr Evans' role wastransitory. As against this, Mr Evans possessed more methamphetamine than Mr Su,and Mr Evans agreed to perform a role that could not otherwise be fulfilled by theperson higher in the chain. Ms Pecotic's proposed starting point of four years'imprisonment is thus much too low. Five and a half years—the same starting point inSu—is the obvious starting point given the similarities between that case andMr Evans'.Increases[18] Ms Pecotic contends the Judge was wrong to add a total of 18 months for theother offending and Mr Evans' record. She observes this represents 20 percent of theoriginal starting point.[19] Mr Evans is 42. He has an extensive criminal record. On 30 October 2014,Mr Evans unlawfully possessed two firearms. In May that year, he possessedmethamphetamine. In February the same year, he possessed equipment with intent.These offences resulted in a two and a half-year term of imprisonment in May 2015.In 2011, Mr Evans possessed methamphetamine, the same drug for supply andequipment with intent. This offending attracted a three-year term of imprisonment inSeptember 2011. In December 2005, Mr Evans committed five offences of possessingequipment with intent. He was sentenced by the High Court in June 2007 to a two-yearprison sentence. Mr Evans has other convictions for possessing methamphetamine,amphetamine, or both.[20] This history readily justifies the nine-month increase for Mr Evan's record,particularly when he was still on release conditions for the firearms and drug offencesin 2014. As the Judge observed, several jail terms had not deterred "furtherwillingness to become involved in this type of offending".1010 R v Evans [2020] NZDC 162965 at [13].[21] However, the nine-month increase for the other offending was somewhat toohigh; not more than six months was required given the weapon was a stun gun (not afirearm), and that the ammunition was not found with a firearm (risk of harm was notas great as would otherwise have been the case). So, the adjusted starting point shouldhave been 81 months, or six years and nine months' imprisonment.Discount for personal circumstances[22] Ms Pecotic contends the Judge should have deducted 30 percent rather than 25for personal circumstances. She emphasises the impact of the death of Mr Evans'mother (in 2003); his refuge in methamphetamine thereafter; and Mr Evans'willingness to rehabilitate (as attested by various certificates, and his surrender toprison after compassionate bail).[23] The Judge was mindful of these features and a 25 percent deduction is asignificant one. Discounts in this context also attract a measure of discretion.11 It isfar from obvious the discount should have been greater. Moreover, the Judge deducted20 percent for Mr Evans' guilty pleas, and these were not early, or in the face of a weakprosecution case. Benevolence on this front therefore addresses any arguabledeficiency on the other.Minimum period[24] Ms Pecotic notes the Crown did not seek a minimum period in theDistrict Court. She argues a minimum period is unnecessary and risks compromisingprogress Mr Evans has made on remand. She also emphasises the need, affirmed bythe Court of Appeal in Zhang, for justification of the imposition of a minimum period.[25] The Crown suggests the issue is moot, for, Mr Evans has been in custody sincearrest in August 2017.[26] A minimum period may be imposed whenever a Court sentences an offenderto a determinant sentence of more than two years' imprisonment; no application is11 Zhang v R¸ above n 1, at [136]required by the prosecution.12 Mr Evans was on release conditions for like offendingwhen he committed these offences. As observed, Mr Evans has a significant historyof committing drugs and firearms offences. The pre-sentence report assessesMr Evans as "high risk" of re-offending and posing "a medium to high risk of harm toothers". Deterrence and community protection are relevant considerations whendetermining if a minimum period is required.13 So, a minimum period was open tothe Judge.[27] Moreover, a minimum period of imprisonment is not necessarily inconsistentwith an offender's rehabilitative needs. Mr Evans has attended prison programmes toaddress his offending and drug dependency, including the Drug Treatment Unit andSpecial Treatment Unit. Mr Evans has also had sessions with a psychologist.[28] However, because Mr Evans has already served the minimum period (andmore), and the sentence is to be varied, I allow this aspect of the appeal too.Result[29] The appeal is allowed, and Mr Evans' sentence quashed. A three-year,eight-month prison term is substituted. The minimum period of imprisonment isquashed...Downs J12 Sentencing Act 2002, s 86(1).13 Section 86(2).