DALWOOD v R [2022] NZHC 2683

DALWOOD v R [2022] NZHC 2683 [17 October 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2022-412-34CRI-2022-412-35[2022] NZHC 2683BETWEEN JASON CHARLES DALWOODAppellantAND THE KINGRespondentHearing: 17 October 2022Appearances: S A Saunderson-Warner for AppellantR D Smith for RespondentJudgment: 17 October 2022JUDGMENT OF DOOGUE JThis judgment was delivered by me on 17 October 2022 at 3.00 pmRegistrar/Deputy RegistrarDate:Introduction[1] The appellant, Jason Charles Dalwood, appeals against a sentence of two yearsthree months' imprisonment imposed in the District Court on 1 June 2022 havingpleaded guilty to two charges of offering to supply methamphetamine1 and twocharges of breaching intensive supervision.2[2] Mr Dalwood submits the sentence imposed was manifestly excessive because:(a) the starting point adopted for the charges of offering to supplymethamphetamine was too high; and(b) the uplift for the fact of offending while subject to a sentence ofintensive supervision and the charges of breaching intensivesupervision was too high.[3] The respondent submits that both the starting point and uplifts were within theavailable range and that the Judge made no error.Approach on appeal[4] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.3 A Court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles.4 It is only appropriate forthis Court to intervene and substitute its own views if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.51 Misuse of Drugs Act 1975, s 6(1)(c) and (2): maximum penalty life imprisonment.2 Sentencing Act 2002, s 70(A)(a): maximum penalty six months' imprisonment or $1500 fine.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 Ripia v R [2011] NZCA 101 at [15].The facts of the offending[5] Mr Dalwood pleaded guilty on the basis of a summary of facts that stated thatduring October 2021 he had offered to supply methamphetamine to about 16 people.Those offers included points, quarter grams, half grams and whole grams ofmethamphetamine. During the period 1 October 2021 to 31 October 2021Mr Dalwood offered to supply 28.9 grams of methamphetamine, with a street value(between) $23,000 and $29,000.[6] On 1 November 2021 Mr Dalwood was a passenger in a motor vehicle onTahuna Road. As police approached the vehicle Mr Dalwood attempted to concealsomething down his trousers. A search was invoked and police found amethamphetamine pipe down Mr Dalwood's trousers.[7] During a search of the car, approximately 2.5 grams of methamphetamine waslocated within 11 quarter gram bags, known as "Qs". Police also located digital scales,new empty plastic bags and Mr Dalwood's cell phone. Upon analysis of the cellphone, evidence of Mr Dalwood dealing methamphetamine was located.[8] On 18 March Mr Dalwood was spoken to by police and his vehicle was againsearched. During the search police located methamphetamine paraphernalia, alongwith Mr Dalwood's cell phone. Further investigation revealed that between5 March 2022 to 18 March 2022 Mr Dalwood continued to offer methamphetamine.Over this period, he offered to supply 30 associates with methamphetamine in the formof $100 bags, quarter grams, half grams, full grams and 7 gram (quarter packs)amounts. A total of 58.55 grams of methamphetamine was offered for supply overthat second period of offending.[9] Overall therefore, across the two offence periods, Mr Dalwood offered tosupply a total of 87.45 grams of methamphetamine.The District Court decision[10] In sentencing in the District Court, the Judge noted there were two distinctperiods of offending involving offers to supply methamphetamine. The Judgeconsidered the continuation of offending after initial police involvement to be a"significant aggravating factor". The Judge also noted that Mr Dalwood was onintensive supervision at the time of the offending.[11] The Judge accepted that Mr Dalwood was addicted to methamphetamine at thetime of the offending and was dealing to support his own habit.[12] While the Crown submitted there were indicia of commerciality, the Judgefound that the allegation of commerciality was not capable of proof before him andput little weight on that assertion.[13] The Judge described the offending as "more than minor" and while the Judgeappeared to acknowledge that offending involving offers to supply, as opposed toactual supply, can have a different assessment of culpability, he did note that offendingand actual supplying are treated in the same way.[14] The Judge found that Mr Dalwood was on the cusp of the lesser and significantcategories, describing Mr Dalwood's role as "medium-to-low". The Judge found thatMr Dalwood was his "own man" but must have had some appreciation of the hierarchyof the supply chain, albeit he was at the "lower level".[15] The Judge adopted a starting point of four years' imprisonment by reference tothe decisions of Joyce v R,6 which involved possession of 28.35 grams and supplies of3.76 grams together with $12,885 in cash and a starting point of four years, andWhiteford v R,7 which involved offers in quantities totalling 53 grams and a startingpoint of five years.[16] The Judge then uplifted the starting point by three months to reflect the factthat Mr Dalwood was offending while subject to a sentence of intensive supervision,and a further three months to reflect Mr Dalwood's guilty pleas to two charges ofbreaching that sentence.6 Joyce v R [2020] NZCA 124.7 Whiteford v R [2020] NZCA 130.[17] The Judge then allowed credits totally 50 per cent, being 25 per cent forMr Dalwood's guilty plea, 15 per cent for addiction (incorporating causativebackground factors), and 10 per cent for Mr Dalwood's "aspiration" to undertakerehabilitation.[18] This led to an end sentence of 27 months' imprisonment.[19] Speaking to home detention, unavailable though it was due to the sentence'slength, the Judge raised concerns around Mr Dalwood's historical non-compliancewith community-based sentences and the need to satisfy sentencing principles arounddeterrence, denunciation, and protection of the community. Furthermore, the Judgenoted that it was difficult for police to monitor adherence with a condition not to takeillegal drugs.Appellant's submissions[20] Ms Saunderson-Warner submitted that the Judge erred in adopting a startingpoint of four years' imprisonment. She submitted the Judge's approach to sentencingdid not adequately reflect that the charges were charges of offering (rather thansupply), or that Mr Dalwood's offending was motivated by addiction.[21] Ms Saunderson-Warner submitted that because the charges were offering tosupply methamphetamine as opposed to actual supplying, there is an inherentdifficulty in placing much weight on the quantity of methamphetamine offered. Sheprovided the analogy that an offer to sell a car to 10 people does not mean that thereare 10 cars to sell. She submitted that care needs to be taken not to overemphasise thetotal quantity of methamphetamine and the culpability needs to be assessed withgreater reference to other factors, including the role the appellant is playing.[22] Ms Saunderson-Warner emphasised the following key points:(a) there were no indications that Mr Dalwood was turning a profit fromhis offending;(b) it was well recognised that Mr Dalwood had a serious addiction tomethamphetamine, and it was logical to conclude that the lack ofindication of profit indicates the sales were to fund his own addiction;(c) rather than being a substantial aggravating factor as the Judgecharacterised, the offending over the second period was a classicexample of the power of addiction and the addict's compulsion topursue funding for drugs "as if it were important for survival" and thiswas to be starkly contrasted with the moral culpability of an offenderwho seeks to supply methamphetamine for the cynical purpose ofderiving profit; and(d) there were no indications Mr Dalwood was part of a wider drug-dealingnetwork, he did not have an operational or management function, hewas not involved in directing others in supply and was not motivatedprimarily by financial advantage.[23] Ms Saunderson-Warner referred the Court to the case of Tregoweth v R.8 Inthat case the Court of Appeal was considering an appeal against sentence where theappellant had been initially located with 2.8 grams of methamphetamine, a further3 grams located when he was strip-searched, and finally an additional 37.3 grams wasfound on him the following day when he was in his prison cell. This meant that intotal the appellant was in possession of 43.1 grams of methamphetamine when he wasarrested.[24] Ms Saunderson-Warner submitted this case demonstrates that, even whererelatively substantial quantities of methamphetamine are involved, lower startingpoints are adopted in cases where it is accepted that the offending was motivated byaddiction rather than by profit.[25] Ms Saunderson-Warner also relied on Dunn v Police.9 In that case theappellant was convicted of 22 charges of possession of methamphetamine for supply8 Tregoweth v R [2021] NZCA 311.9 Dunn v Police [2020] NZHC 316.— one for each text that she sent agreeing to supplying methamphetamine. In totalthe appellant agreed to supply 24.7 grams of methamphetamine.[26] Ms Saunderson-Warner said the nature of the offending in that case was similarto that in this case. In that case the sentencing Judge had adopted a starting point of30 months' (two and a half years') imprisonment. On appeal neither party contestedthat starting point. Gordon J considered that insufficient credit had been allowed forthe appellant's addiction and allowed the appeal, reducing the sentence by fourmonths' imprisonment.[27] Finally on the starting point, Ms Saunderson-Warner submitted that theculpability was similar between the appellant in Dunn and Mr Dalwood in the presentcase. Both involved offenders who agreed or offered to supply not insubstantialquantifies of methamphetamine, but for reasons where the motivation for the supplywas to support his or her own addiction. Counsel submitted that this would support astarting point in the vicinity of three years' imprisonment in this case.Submissions for the respondent[28] Mr Smith, for the Crown, drew the Court's attention to the fact that the Misuseof Drugs Act makes no distinction between charges of supplying or offering to supplya Class A controlled drug, in that both are an offence against s 6(1)(c) of the Misuseof Drugs Act and both carry a maximum penalty of life imprisonment.10[29] In addition, s 6(4) of the Misuse of Drugs Act provides a presumption ofimprisonment in cases of manufacture, importation, supply, offering to supply andpossession for supply of a Class A controlled drug.[30] Mr Smith relied on Malolo v R where the Court of Appeal considered a similarargument to that advanced in the present case.11 He emphasised that the Court is todraw no distinction between inflicted and attempted harm in order to recognise theseverity of harm caused by methamphetamine. He also noted that it is available to theCourt to make evaluative findings on the amount of methamphetamine likely utilised10 Misuse of Drugs Act, s 6(2)(a).11 Malolo v R [2022] NZCA 399.by an offender despite a lack of direct evidence and could infer an ability of an offenderto make good on each offer. Mr Smith argued the same conclusions should be reachedhere given the large number of persons Mr Dalwood made offers to, the diversity ofamounts for which offers were made, and the persistent and continuous nature of thedealing. He submitted these factors indicated that Mr Dalwood must have had accessto a reasonably steady stream of methamphetamine.[31] As Mr Dalwood offered a total of 87.45 g of methamphetamine, Mr Smithargued his offending falls comfortably within band 2 of Zhang.12 Further, hislower-level position and addiction were only minor mitigating factors because of thenumber of persons to whom he was dealing. Mr Smith submitted the sheer quantityof methamphetamine further undermined an argument that it was exclusively anaddiction. Further, he submitted the Judge's assessment of Mr Dalwood's role as"medium-to-low" was generous. Mr Dalwood was an independent dealer with hisown customer base, fulfilled an operational function, and must have had someawareness of the operation above him due to the quantities in which he dealt. Withreference to cases where lesser amounts of methamphetamine were present andstarting points ranged from just under three years up to four years' imprisonment, MrSmith argued the starting point was available to the Judge.[32] Mr Smith submitted there cannot be any real argument as to whether the factthat offending occurred while subject to a rehabilitative sentence is an aggravatingfeature. He submitted an additional three-month uplift for two charges of breachingintensive supervision is unimpeachable. In addition, he submitted any criticism of thesentence is rendered nugatory as no uplift whatsoever was adopted to recogniseMr Dalwood's substantial history of similar offending.[33] Finally, Mr Smith submitted any perceived defects in the sentence were curedby a generous approach to discounts. A full guilty plea discount was provided whenthe evidence was overwhelming. A 15 per cent discount to reflect background factorsand addiction was also within range. Ten per cent to reflect aspirations ofrehabilitation was particularly generous given Mr Dalwood had only made efforts at12 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 64.entering a residential rehabilitative programme and had offended while subject to asentence designed to facilitate rehabilitation.Discussion[34] In the present case Mr Dalwood offered to supply methamphetamine to a largenumber of persons. Over the first offence period there were "about 16" potentialpurchasers and over the second period there were 30 potential purchasers.[35] The offence periods were between 1 October to 31 October 2021 and between5 March to 13 March 2022 respectively. In the first period Mr Dalwood offered28.9 grams and over the second period 58.55 grams.[36] Mr Dalwood offered to supply methamphetamine in wide-ranging amountsfrom "points" up to 7 grams at a time, indicating he had a steady stream ofmethamphetamine and must have been well connected to a source of the drug.[37] The offending could fairly be described as persistent and continuous and not atall consistent with a dealer who was not making good on the offers. Rather, the factsof the offending suggest Mr Dalwood was consistently able to supplymethamphetamine to a not insignificant number of persons.Was a starting point of four years' imprisonment available?[38] Ms Saunderson-Warner raised the argument that little weight should be placedupon the amount of methamphetamine offered by Mr Dalwood. While the logic ofher submissions is not in error in a general sense (I accept a supplier of goods maymake offers exceeding their actual stock), I consider this is a case where the Courtmay assume Mr Dalwood had the capacity to "make good" on his offers.13 Not onlyis this position consistent with the lack of distinction between supply and offering tosupply in the Misuse of Drugs Act 1975, but it is also supported by the facts in thepresent case. Mr Dalwood was offering methamphetamine to a substantial pool ofcustomers, in varying amounts including substantial quantities at a time (up to 7-grampacks) and was doing so over an extended period of time. This would indicate he was13 Dodd v R [2013] NZCA 138 at [14].not looking to merely get rid of a one-off, limited quantity of methamphetamine butwas connected to an accessible source of the drug. As such, it is not appropriate toapply a reduced weight to the 87.45 grams of methamphetamine offered byMr Dalwood.[39] Given the amount of methamphetamine offered by Mr Dalwood over the twotranches of offending, I find no error in the Judge's use of band 2 of Zhang.14 Thiswould indicate a starting point of between two to nine years' imprisonment would beappropriate. That is not the end of the assessment however. The Court of Appeal heldthat the role an offender performs allows the Court to assess the conduct's seriousness,the criminality involved, and the inherent culpability of the offending.15[40] I recognise the operative effect of Mr Dalwood's addiction is significant inassessing his role. It goes to Mr Dalwood's moral culpability and the extent to whichhis offending was a rational choice. This holds particular relevance when consideringhis continued offending after having his encounter with police in earlyNovember 2021. It is difficult to assess the commerciality of Mr Dalwood'soffending. Significant sums of cash were not found, and Mr Dalwood deposed that noprofits emerged from his dealing. Nevertheless, there is indicia of commerciality (theoffers, electronic scales, ziplock bags), and the sheer amount of methamphetamineoffered undermines claims of the dealing being solely for his own personal use to feedhis addiction. The March offending saw Mr Dalwood make offers ofmethamphetamine which, if fulfilled, could have netted him in excess of $50,000.[41] I therefore place only a small weight on the commerciality of Mr Dalwood'soffending. I consider the District Court Judge was correct in assessing Mr Dalwoodas his "own man". He had an operational role, sourcing his own supply of the drugand managing his own base of customers. He does not appear to have been workingon a limited basis under directions and cannot attribute the dealing to naivety orcoercion. Viewed holistically, Mr Dalwood fits between the lesser and significantroles as set out in Zhang.14 Zhang v R, above n 12.15 At [10].[42] Both counsel used Joyce v R in different ways to argue their point.16 There,Mr Joyce was similarly an independent retail dealer of methamphetamine. Thebalance between addiction and commerciality was more evenly weighted than in thepresent case as there were clear indications of profit making with some feeding ofaddiction, but the amount of methamphetamine involved was significantly lesser thanhere. A starting point of four years' imprisonment was adopted.[43] In Poppen v R, Ms Poppen dealt methamphetamine over a three-monthperiod.17 The total quantity was 43.95 grams but only 8.95 grams were dealt by herpersonally, the remainder she organised as an intermediary over two transactions. Shewas described as a street-level dealer with her own customers. Ms Poppen only soldamounts ranging from 0.1 grams to 1 gram at a time and would act as an intermediaryfor larger orders. There were elements of both addiction and commerciality to heroffending (with greater evidence of profit than in the present case). Again, there ismore commerciality but significantly lower amounts when compared to the presentcase. Brewer J ruled that a four-year starting point would only have been appropriateif she had been sourcing and supplying the larger quantities herself, as Mr Dalwoodhas done here, and adopted a starting point of three years and six months.[44] A starting point of four years and six months' imprisonment was adopted in Rv Cossey and upheld on appeal.18 Here the appellant occupied the lowest tier of amethamphetamine operation and was assessed as having a lesser role despitesignificant commerciality. On at least 36 occasions 102.5 grams of methamphetaminewas offered, and on 13 occasions a total of 12.25 grams was supplied.[45] The above cases encourage a finding that the starting point adopted in theDistrict Court was within range.16 Joyce v R, above n 6.17 Poppen v R [2022] NZHC 364.18 R v Cossey [2021] NZHC 1333; and Cossey v R [2021] NZCA 677.Uplift for offending while subject to intensive supervision and breaches of intensivesupervision[46] The Judge adopted an uplift of three months' imprisonment to reflect thatMr Dalwood had offended while subject to a sentence of intensive supervision. Heuplifted the sentence by a further three months to reflect the two charges of breachingthe sentence. He did not impose any uplift for Mr Dalwood's relevant criminal history.[47] In respect of the first breach, Mr Dalwood admitted that in October 2021 hehad been using drugs. The other breach, however, was representative in nature andinvolved five repeated failures to report to his probation officer between23 November 2021 and 21 December 2021.[48] There cannot be any real argument that the offending — having occurred whilesubject to a sentence imposed by the Court, particularly a rehabilitative sentence — isan aggravating feature. To the extent that the offending was demonstrative ofMr Dalwood's addiction, it is merely evidence of a mitigating feature to be consideredat the second stage of the sentencing exercise. It does not, in and of itself, mean anuplift is inappropriate.[49] Ms Saunderson-Warner submitted that the uplifts were excessive. Shesubmitted that the concept of "rational choice to offend" ought to play a significantrole in this case.19 Although Mr Dalwood was subject to intensive supervision, he wasan addict who had "fallen off the wagon". She submitted he had not made acompletely wilful decision such as to commit this methamphetamine offending whilesubject to a sentence, it was more that he was feeding an addiction. In thecircumstances she submitted it would be inappropriate to impose an additionalpunishment for Mr Dalwood's failure to comply with the condition not to consumenon-prescription drugs.[50] Finally, Ms Saunderson-Warner submitted the uplift should have totalled nomore than two months.19 Zhang v R, above n 12.[51] There ought to be a distinction between those who offend while subject to asentence and those whose offences occur while they are not subject to any court order.That distinction should be by way of uplift for offending while subject to a sentence.[52] An uplift of only three months to reflect the two charges of breaching intensivesupervision is, as Mr Smith submitted, unimpeachable, particularly given one of thosecharges was representative in nature and followed shortly after a further induction intothe sentence.[53] It would have been open to the Court to impose a discrete uplift to reflectMr Dalwood's criminal history, for which there was no uplift whatsoever. His historyincludes 13 convictions for offences against the Misuse of Drugs Act and10 convictions for offences involving breaches of community-based sentences. Onthat basis an uplift of a further three months may very well have been available to theJudge.[54] Overall therefore an uplift of six months to reflect offending while subject to asentence and multiple breaches of that sentence was well within the range available,particularly given Mr Dalwood's history of similar behaviour.[55] To the extent that the breaches and offending evidenced Mr Dalwood'saddiction, that was a second stage sentencing consideration. To make allowance at thefirst stage would result in unmerited double benefit.Credit for mitigating features[56] To the extent that the starting point might have been at the stern end ofsentencing, the end sentence cannot be described as manifestly excessive because ofthe generous allowances made for mitigating features.[57] The Judge allowed full credit for Mr Dalwood's guilty plea for what wereseemingly guilty pleas entered at an early stage but in the face of an overwhelmingprosecution case.[58] The Judge then allowed 15 per cent to reflect background factors andMr Dalwood's addiction, which was perfectly within range.[59] The Judge's further discount of 10 per cent to reflect "aspiration" towardrehabilitation was particularly generous, as although Mr Dalwood had seeminglymade attempts to enter a residential rehabilitation programme to no avail he had alsobeen offending while subject to a sentence of intensive supervision, a sentencedesigned to provide intensive rehabilitative options.[60] Furthermore, "aspiration" to rehabilitate is quite different from having takensignificant steps toward rehabilitation. While Mr Dalwood may have been entitled toa credit for the disadvantage in his past (a head injury) although it was not causativeof addiction issues, only modest credit, if any, should be allowed for an expresseddesire to rehabilitate.[61] Mr Dalwood was afforded 25 per cent for personal features overall, which wasseemingly generous.Conclusion[62] The starting point and uplifts adopted by the Judge were within range. Thecredits afforded to Mr Dalwood were generous.[63] That said, I find that the Judge did not fall into error nor that the overallsentence imposed was manifestly excessive given the circumstances of the offendingand Mr Dalwood's background.Result[64] The appeal is dismissed.Doogue JSolicitors:Crown Solicitor, DunedinCC:Sarah Saunderson-Warner, Dunedin