GOTTY v R [2020] NZHC 2035

GOTTY v R [2020] NZHC 2035 [12 August 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000065[2020] NZHC 2035BETWEEN JAMES DEAN JOHN GOTTYAppellantAND THE QUEENRespondentHearing: 7 August 2020Appearances: T Sutcliffe for AppellantK Whyte for RespondentJudgment: 12 August 2020JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 12 August 2020 at 12.00 middayRegistrar/Deputy RegistrarDate:Solicitors:Crown Solicitor at HamiltonT Sutcliffe, HamiltonIntroduction[1] After pleading guilty to various drug-related charges and one firearm-relatedcharge, the appellant, James Gotty, was sentenced by Judge Cocurullo in the DistrictCourt at Hamilton on 18 June 2020 to eight months' home detention.1[2] Mr Gotty appeals the sentence, submitting that it is manifestly excessive.Through his counsel, Mr Sutcliffe, he argued that the Judge:(a) failed to give him a discount for six months spent on remand in custody;(b) failed to give him a sufficient discount for five months spent on remandon electronically monitored (EM) bail; and(c) gave him an insufficient credit for his guilty pleas.[3] Mr Whyte, for the Crown, argued that the end sentence of home detention wassignificantly less than half the sentence of imprisonment calculated by the Judge, andthat the sentence was not manifestly excessive.Relevant facts[4] In July 2019, the police obtained a production order in relation to Mr Gotty'smobile phone, following reports received that he was involved in drug dealing.[5] An analysis of the data revealed that Mr Gotty had operated the phone between1 May 2019 and 7 July 2019, and that he was dealing in both methamphetamine andcannabis. Specifically, over that period, Mr Gotty:(a) supplied 2.95 grams of methamphetamine on eight separate occasions;(b) offered to supply methamphetamine on 37 separate occasions. Thepolice were able to ascertain that 38.8 grams of methamphetamine wasinvolved in 34 of those offers;1 R v Gotty [2020] NZDC 11420.(c) sold and/or offered to sell cannabis on seven separate occasions. Thepolice were unable to identify the quantities sold or offered on eachoccasion;[6] On 30 July 2019, the police executed a search warrant at Mr Gotty's homeaddress. They found the following items in his bedroom:(a) a ziplock bag containing .029 grams of methamphetamine;(b) a set of digital scales;(c) multiple containers containing empty ziplock bags;(d) multiple empty ziplock bags;(e) a plastic container holding 18.3 grams of a white crystallised substance;(f) $240 cash;(g) a broken methamphetamine pipe;(h) a plastic bag holding 27.6 grams of dried cannabis;(i) two ziplock bags containing a total of 0.13 grams of dried cannabis;(j) a metal tin containing 39.3 grams of dried cannabis plant material;(k) a glass cannabis bong;(l) a black cannabis pipe;(m) a yellow and brown cannabis bong;(n) a glass methamphetamine pipe, cut straw and butane burner; and(o) eight rounds of ammunition for a rifle.[7] As a result, Mr Gotty was charged with supplying methamphetamine, being inpossession of methamphetamine for supply, offering to sell methamphetamine, sellingcannabis, offering cannabis for sale and finally, with being in unlawful possession ofammunition. One of the charges related to the 18.3 grams of white crystallisedsubstance found during the search.[8] The charges were laid on 31 July 2019. Mr Gotty appeared before the Courton 6 August 2019 and he was remanded in custody. Not guilty pleas were entered on20 August 2019. Again, Mr Gotty was remanded in custody. There was then a delay,because the Crown needed to analyse the white substance found in the course of thesearch and further examine Mr Gotty's telephone records. On 6 November 2019, thecase was before the Court for review. The police had still not finalised theirinvestigations, but the Court was told that matters were likely to be resolved. On 29January 2020, Mr Gotty again came before the Court. The police had completed theirenquiries. The white substance found in the course of the search was notmethamphetamine. They also accepted that Mr Gotty's phone records revealed thathe was a drug addict and that his offending had been driven by his addiction. Giventhese changes in circumstance, Mr Gotty applied for and was granted electronicallymonitored (EM) bail. On the same day, Mr Gotty sought a sentence indication. Thatsentence indication was supposed to be given in April 2020, but the hearing had to beadjourned because of the COVID-19 crisis. The indication was eventually given on 5May 2020. Mr Gotty accepted the indication on 12 May 2020. He was then convictedand he appeared for sentence on 18 June 2020.The Judge's sentencing notes[9] The Judge recorded that it was common ground that Mr Gotty was a drugaddict and that there was a causal link between his addiction and his offending.[10] The Judge considered that the appropriate start point was one of three years'imprisonment for all of the drug offending. He uplifted that start point by two months,to account for the unlawful possession of the ammunition, taking the starting point to38 months' imprisonment. Mr Gotty had indicated a willingness to rehabilitate, andthe Judge discounted the sentence by two months to allow for this factor. He thenapplied a further two month discount to acknowledge the time that Mr Gotty had spenton EM bail. The Judge then referred to Mr Gotty's drug addiction and the nexusbetween his addiction and his offending. He gave him a 15 per cent discount for thisfactor (five months), which took the starting point sentence down to 29 months. TheJudge then allowed Mr Gotty a 20 per cent discount for his guilty pleas, taking the endsentence to one of 23 months' imprisonment.[11] The Judge then noted that home detention was an available sentence. Herecorded that Mr Gotty had a "fairly favourable" pre-sentence report, noting that thereport writer recommended home detention. The Judge recorded that the defaultposition for people who get associated with and those dealing with illicit drugs isnormally a prison sentence – noting that personal circumstances count for little andthat a message should be sent to the community that the Courts will respond sternly tothose who become involved in drug-related offending. The Judge however went on tocomment that he could not help but think, given the responsible way the Crown hadbrought the charges against Mr Gotty and the concession that the Crown had maderegarding Mr Gotty's addiction and his offending, that it might be that Mr Gotty hadturned a corner regarding rehabilitation. The Judge considered "by some margin" thatMr Gotty's rehabilitative prospects outweighed the need for a punitive sentence andhe was prepared to accede to the request for a sentence of home detention. Hesentenced Mr Gotty to eight months' home detention, subject to post-detentionconditions for six months after the sentence expiry date.The appeal[12] The appeal is brought to s 244 of the Criminal Procedure Act 2011. Section250(2) provides that this Court, as the first appeal Court, must allow the appeal if it issatisfied that:(a) for any reason there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.In any other case, the Court must dismiss the appeal.[13] The approach called for under s 250 requires both the identification of an errorand that the appeal Court be satisfied that a different sentence should be imposed. Theappeal Court does not start afresh, nor simply substitute its own opinion for that of theoriginal sentencer.2Submissions[14] Mr Sutcliffe, appearing for Mr Gotty, noted that the Judge did not expresslytake into consideration the fact that Mr Gotty spent almost six months on remand incustody. He submitted that he should have done so. He further argued that Mr Gottyspent almost five months on EM bail, and that he should have received a discount ofthree months, rather than the two months allowed to him by the Judge. Finally, heargued that Mr Gotty should have been given a full 25 per cent discount for his guiltypleas. He noted that Mr Gotty had, from an early stage, indicated that he would like asentence indication, but that the police had to first analyse the white crystallinesubstance they found in the course of the search. He said that Mr Gotty knew that thesubstance was not methamphetamine. As soon as this was confirmed, he asked for thesentence indication and he then promptly pleaded guilty. He argued that the delay wasnot caused by Mr Gotty. He referred to the recent decision of the Court of Appeal inMoses v R,3 pointing out that the Court has changed the approach previously adoptedin sentencing where a defendant has entered a guilty plea or pleas. He sought to applythe Moses methodology to Mr Gotty's case, arguing that it would increase the discountavailable. Taking all of these matters into account, he submitted that the sentenceshould be recalculated as follows:(a) starting point – 38 months' imprisonment;(b) discount for rehabilitation and other mitigating features – two months,or 5.26 per cent;(c) discount for five months spent on EM bail – three months, or 7.89 percent;2 R v Shipton [2007] 2 NZLR 218 (CA); Tutakangahau v R [2014] NZCA 279.3 Moses v R [2020] NZCA 296.(d) discount for addiction and nexus to offending – 15 per cent;(e) discount for guilty pleas – 25 per cent.He argued that the total discounts should have been 53.15 per cent, or 20.19 months,leading to a sentence of 17.81 months' imprisonment. He then argued that thissentence should have been further reduced to recognise the fact that Mr Gotty spentsix months in custody, reducing the prison term to 11.81 months' imprisonment, andthat that sentence should have been commuted to an end sentence of five to six months'home detention.[15] Mr Whyte, for the Crown, argued that the Judge gave appropriate credit toMr Gotty for the time spent on EM bail, and in recognition of his guilty pleas. Heacknowledged that no distinct recognition was given for time served in custody, butsubmitted that because the term of home detention ultimately imposed wassignificantly less than half of the sentence of imprisonment adopted by the Judge, thesentence of home detention imposed must have incorporated a credit for the time spentin custody. The Court of Appeal's decision in Moses was acknowledged. It wassubmitted however that even allowing for the change in approach, the impact of theguilty pleas is limited. Mr Whyte's calculations were as follows:(a) global starting point – 38 months' imprisonment;(b) discount of 40 per cent (comprising five per cent for rehabilitation, 15per cent for addiction issues and 20 per cent for guilty pleas) – resultingin sentence of 23 months' imprisonment;(c) discount of two months for time spent on EM bail – resulting insentence of 21 months' imprisonment;(d) credit of six months for time spent on custodial remand – resulting insentence of 15 months' imprisonment – which commutes, applyinggenerally accepted guidelines, to seven and a half months' homedetention.It was further argued that the discounts for rehabilitation and addiction were generous.It was argued that a 10 per cent discount would have sufficiently accounted for bothfactors, which it was submitted, are interconnected. Undertaking the samearithmetical exercise, it was argued that a 10 per cent discount for these matters wouldresult in a sentence of 18 months' imprisonment, which could be commuted to asentence of nine months' home detention. It was argued that irrespective of theapproach taken, the end sentence of eight months' home detention could not be said tobe manifestly excessive and that accordingly the appeal should be dismissed.Analysis[16] There was no challenge to the starting point adopted by the Judge. I do nottake this aspect of the sentence any further.[17] It is asserted that the Judge erred in failing to make any allowance for thealmost six months which Mr Gotty spent on remand in custody. I accept that the Judgedid not specifically refer to this matter. He should have done so and to this extent heerred.[18] Time spent on remand in custody is automatically factored in when setting thesentence start date where the sentence ultimately imposed is a sentence ofimprisonment – the period the offender has spent in pre-sentence detention is deemedto be time served.4 As a result, pre-sentence detention in custody is not taken intoaccount in determining the length of the sentence imposed.5 There are however nosimilar provisions where the end sentence imposed is home detention. With homedetention, the sentence start date runs from the date that the sentence is imposed.6 TheCourt must therefore make a reduction, to factor into a sentence of home detention,for time spent on remand in custody.7 The reduction is normally equivalent to the timespent in custody. That is to ensure equality of treatment for offenders. With a sentenceof imprisonment, the offender automatically obtains credit for all of the time spent oncustodial remand; all of the time spent is deducted from the sentence to be served. So,4 Parole Act 2002, s 90.5 Sentencing Act 2002, s 82.6 Section 80X(1).7 Longman v Police [2017] NZHC 2928 at [8]; Parkinson v Police [2019] NZHC 1710 at [19]; Kirkv R [2019] NZHC 3361 at [7].where a sentence of imprisonment is commuted to a sentence of home detention, thesentencing Judge should ensure that full credit is given for the time spent in custodialremand and deduct that time from the calculated term of imprisonment before thesentence of imprisonment is commuted to a sentence of home detention.8[19] Here, the Judge made no specific reference in his sentencing notes to the almostsix months that Mr Gotty spent on remand in custody. There is however force in theCrown submission that the overall sentence imposed was such that a credit must havebeen factored in. The Judge's global starting point was 38 months' imprisonment.After giving credit for all of the various discounts allowed by the Judge, the calculatedsentence became one of 23 months' imprisonment. Credit for the six months spent incustodial remand should have been allowed for at this stage. That would have takenthe sentence down to 17 months' imprisonment, which, applying the generallyaccepted methodology,9 would commute to a sentence of eight and a half months'home detention.[20] I now turn to the issue of EM bail. Mr Gotty says that the Judge gave himinsufficient discount in this regard.[21] Mr Gotty spent almost five months on EM bail. Time spent on EM bail is amandatory consideration which must be taken into account when setting anappropriate sentence.10 It is clear however that the quantum of any deduction for timespent on EM bail is not a matter of arithmetical equivalence.11 The reasons for thisare straightforward. First, even the most restrictive EM bail is not the same as servingtime in prison. It is considerably less restrictive. Secondly, there are many variables– the length of time on EM bail, the conditions imposed and the offender's compliance.Even with a 24-hour curfew, there can be considerable variance, for example, in thenumber of absences permitted, so that two apparently similar sets of bail conditions8 Parkinson v Police, above n 7 at [19].9 Laloni v R [2015] NZCA 55 at [14]. The methodology of halving the sentence of imprisonmentis commonly adopted, but it is not a matter of law. The proper approach is to engage in anevaluative assessment of all the circumstances: R v Bisschop [2008] NZCA 229; S v R [2011]NZCA 178.10 Sentencing Act 2002, s 9(2)(h) and 9(3A).11 Parata v R [2017] NZCA 48 at [10] and [12]; Chea v R [2016] NZCA 207 at [110]; Keown vCrown [2010] NZCA 492 at [12]; Baillie v R [2010] NZCA 507 at [18]; R v Tamou [2008] NZCA88 at [19].can operate very differently.12 Thirdly, care is needed to avoid potential abuse. Wereequivalence or close to it to be granted for time spent on EM bail, there would be anincentive to extend the time spent on EM bail to avoid serving the sentence ofimprisonment.13[22] Here the Judge allowed a reduction of two months for the five months spenton EM bail. Even assuming there were no permitted absences and no breaches, I amnot persuaded that the Judge erred in the allowance he gave. The level of discount inany given case is a matter of judicial discretion,14 and I consider that the two monthcredit given by the Judge was sufficient.[23] I now turn to the discount for the guilty pleas.[24] The Supreme Court in Hessell v R emphasised that the credit given for a guiltyplea (or pleas) must reflect all the circumstances in which the plea is entered, includingwhether it is truly to be regarded as an early or late plea, and the strength of theprosecution case.15[25] In the present case, the pleas were not entered at the first available opportunity.Initially not guilty pleas were entered. Although an indication was given some monthslater that the matter would be resolved, guilty pleas were only entered at a relativelylate stage. I accept that, at least in part, Mr Gotty was not responsible for the delaythat occurred. The Crown had not finalised its case, in particular in regard to the whitecrystallised substance found in Mr Gotty's bedroom in the course of the search.However, that substance was the subject of only one of the charges. There was nothingto stop Mr Gotty entering guilty pleas to the other charges rather earlier in the process.Moreover, the Crown had a strong case. It had the text messages on Mr Gotty'scellphone and the various items found in the Mr Gotty's bedroom when the searchwarrant was executed. In all the circumstances, I do not consider that the Judge canbe faulted for adopting a discount of 20 per cent for the guilty pleas.12 Longman v Police, above n 6 at [6].13 Parata v R, above n 12, at [13].14 Kidman v R [2011] NZCA 62 at [15]-[16], and cases cited at fn 11 above.15 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].[26] Nor do I consider that the Court of Appeal's recent decision in Moses has anyimpact in this case. In that case, the Court held that a two-step methodology shouldbe used in calculating sentences where a guilty plea is entered. First, the sentencingCourt should calculate the adjusted starting point, incorporating aggravating andmitigating features of the offence; secondly, the Court should incorporate allaggravating and mitigating factors personal to the offender, together with any guiltyplea discount, which should be calculated as a percentage of the adjusted starting point.[27] The New Zealand Bill of Rights Act 1990 states that penal enactments are notto be given retrospective effect to the disadvantage of an offender.16 Further, anoffender is to be given the benefit of any decrease in penalty enacted after the offence,but before sentencing.17 In Zhang v R, it was observed that a change in sentencingpractice does not alter the penalty provided by the legislation creating the offence, butrather is an exercise of the sentencing discretion in any individual case.18 As the Courtput it, a change in guideline does not amount to a change of penalty for the purposesof the relevant statutory provisions. As a result, it held that a guideline judgmentshould only apply to sentences that have already been imposed if, first, the appealagainst the sentence has been filed before the date the judgment is delivered and,secondly, the application of the judgment will result in a more favourable outcome tothe appellant.19[28] In the present case, the appeal was filed on 10 July 2020. Moses was releasedon 15 July 2020. This Court has applied Moses to appeals filed before the decisionwas released, without analysis, but presumably on the basis that it is a guidelinejudgment.20[29] Whether Moses is a guideline judgment or a judgment concerned withmethodology only, was not argued before me.21 Rather, Mr Whyte was prepared toaccept that the Moses methodology applied to Mr Gotty's appeal. Given this16 New Zealand Bill of Rights Act 1990, s 25(g).17 Sentencing Act 2002, s 6.18 Zhang v R [2019] NZCA 507.19 At [188]-[190]; See also R v Vadati CA256/05, 19 December 2005 at [8].20 Reihana v Police [2020] NZHC 1786 at [9]; Bramley v Police [2020] NZHC 1788 at [7(a)]. Seealso Beattie v Police [2020] NZHC 1831 at [11].21 I note that the Court of Appeal in Moses referred to it being a guideline judgment – at [49].concession, I do not take this point further. Even if I were to apply Moses, and considerall aggravating and mitigating features together, including the guilty pleas, the impactwould be very limited. It would make a difference of approximately two weeks to theperiod of home detention. In my judgment, to reduce the sentence by that figure wouldbe tinkering.[30] I have stood back and considered the circumstances of the offending and of MrGotty against the applicable sentencing purposes and principles. I am not persuadedthat the end sentence of eight months' home detention imposed by the Judge wasmanifestly excessive. Nor am I persuaded that a different sentence should be imposed.[31] The appeal is dismissed._____________________________Wylie J