TROWER v NEW ZEALAND POLICE [2023] NZHC 3454

TROWER v NEW ZEALAND POLICE [2023] NZHC 3454 [30 November 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2023-463-000060[2023] NZHC 3454BETWEEN JAYDEN TROWERAppellantAND NEW ZEALAND POLICERespondentHearing: 14 September, 28 November 2023Appearances: M Simpkins for the AppellantG Banuelos for the RespondentJudgment: 30 November 2023JUDGMENT OF HARVEY[on appeal against sentence]This judgment is delivered by me on 30 November 2023 at 2.30 pm......................................................Registrar / Deputy RegistrarSolicitors:Gordon Pilditch, Crown Solicitor, RotoruaSimpkins Legal, RotoruaIntroduction[1] Jayden Trower pleaded guilty to three sets of charges concerning, in broadterms, drugs, firearms and driving offences. On 2 June 2023, Judge J P Geoghegansentenced Mr Trower to two years, four months' imprisonment on all charges.1[2] Mr Trower appeals against that sentence on the basis that the Judge gaveinsufficient weight to mitigating factors. He says the level of discount that shouldhave been given for these would have reduced the end sentence to one of two years'imprisonment or less. Had that occurred, it would have been open, and appropriate,for the Judge to have sentenced him to home detention. He therefore contends thesentence of imprisonment that the Judge imposed is manifestly excessive.The chargesThe drugs and firearms charges[3] The most serious charges were those arising out of a series of events that beganwhen the Police searched Mr Trower after he had been arrested and placed in custody.They subsequently executed a search warrant at his residential address.[4] When the police searched Mr Trower, they found several bags containing acrystal-like residue. These were in a small container that also contained a crystal-likesubstance. Upon analysis, the substance in both the bags and the container wasconfirmed to be methamphetamine having a total weight of 1.1 grams. At the time ofhis arrest, Mr Trower was also carrying the sum of $4,050 in cash as well as ziplockbags and a set of scales. In addition, the police found a pipe of the type commonlyused to consume methamphetamine and a plastic ziplock bag containing a smallquantity of cocaine.[5] When they found these items Police asked Mr Trower to provide the passcodefor his cellphone. He refused to do so.1 New Zealand Police v Trower [2023] NZDC 11307.[6] When the police subsequently searched Mr Trower's address they found1.82 kilograms of cannabis in the bedroom. They also found a cut-down .22 calibrerifle and 21 rounds of .22 calibre ammunition under the mattress of the bed in thatroom. In addition, they found $3,730 in cash.[7] This series of events gave rise to charges of being in possession of cannabis forsupply and being in possession of cocaine, methamphetamine and a methamphetaminepipe. He was also charged with failing to provide the passcode for his cellphone. Inaddition, Mr Trower faced two charges of being in unlawful possession of a firearmand ammunition.The driving charges[8] The driving charges were laid following incidents that occurred on 5 July and8 August 2022. On 5 July 2022, the police stopped Mr Trower's vehicle at a routinetraffic stop. He accelerated away and thereby caused a police pursuit. On 8 August2022, the police stopped Mr Trower at another routine traffic stop and discovered thathe had been suspended from driving. These events gave rise to charges of speedingand driving whilst suspended in its aggravated form.The sentence[9] The Judge adopted a starting point of two years, nine months' imprisonmenton the drugs charges. He then added an uplift of 12 months to reflect the firearmscharges and four months to reflect the remaining charges. This resulted in a sentenceof four years, one month's imprisonment. The Judge then applied an uplift of threemonths to reflect the fact that Mr Trower has previous convictions for similaroffending.[10] From the resulting sentence of four years four months imprisonment the Judgededucted 10.4 months, or 20 per cent, to reflect guilty pleas. He applied a furtherdiscount of 20 percent to reflect Mr Trower's remorse, the fact that the drug offendingarose out of addiction issues and Mr Trower's rehabilitative prospects. The Judge thenapplied a further discount of three months to reflect the fact that Mr Trower had beenon EM bail for approximately six months. He rounded these up to an overall reductionof 24 months from the sentence. This reduced the sentence to one of two years, fourmonths' imprisonment.The appeal[11] Mr Simpkins does not take issue with the starting point the Judge adopted onthe drugs charges or the uplifts he applied to reflect the remaining charges. However,he contends that the Judge failed to provide Mr Trower with a full discount of 25 percent for his guilty pleas and that he also applied inadequate discounts for the remainingmitigating factors identified at sentencing.[12] Counsel argued that rather than applying a global approach to discounts, theJudge should have dealt with each factor separately, particularly the issue of addiction.The cultural report prepared by Cade & Co. filed in support confirmed that theappellant suffered from a serious methamphetamine addiction. Yet the discountapplied failed to reflect that seriousness adequately which in one case cited R v Hillcould have been up to 35 percent.2 Mr Simpkins also referred to the appellant'sengagement at Victory House which was also relevant in this context given that thediscount was again inadequate.[13] Ms Banuelos disagreed and submitted that, apart from the guilty plea discount,all the other discounts that the Judge applied were well within the appropriate rangefor the appellant's offending. She accepted the full 25 per cent guilty plea discountwas available.DiscussionDiscount for guilty pleas[14] The Judge noted that, although Mr Trower had entered guilty pleas at the casereview hearing stage, this was not the earliest stage possible. This led the Judge toconclude that an allowance of no more than 20 per cent was appropriate.2 R v Hill [2008] NZCA 41.[15] Mr Simpkins argues that Mr Trower should have received a full discount of25 per cent for his guilty pleas because they were entered as soon as Police confirmedthe nature of the drugs that had been found in Mr Trower's possession. At case reviewhearing Police also amended charges of being in possession of methamphetamine andcocaine for supply to charges of simple possession of those substances.[16] Mr Trower first appeared in the District Court on 22 August 2022. On5 September 2022, he entered not guilty pleas to all charges. He did not enter hisguilty pleas until 7 December 2022. There was therefore a period of approximatelyfour months during which Mr Trower maintained his guilty pleas. Plainly he did notenter them at the first available opportunity. However, I acknowledge that Mr Trowerwas entitled to await the results of forensic analysis before entering his guilty pleas tothe drugs charges. The two most serious charges involving possession of the Class Adrugs methamphetamine and cocaine were also amended in a significant way at thecase review hearing. This was obviously the first opportunity Mr Trower had to enterpleas to those charges. The Crown therefore concedes the Judge ought to have givenMr Trower a discount of 13 months, or 25 per cent, to reflect guilty pleas.Discount for remorse, addiction issues and rehabilitation prospects[17] As Mr Simpkins points out, the Judge did not break down the manner in whichhe applied a discount to reflect these issues but instead applied a global discount of 20per cent.[18] The level of discount to be given for these mitigating factors is very much amatter for the sentencing Judge's discretion. Appellate courts will generally onlyintervene where the discount is plainly inadequate. The Judge acknowledged that MrTrower had undertaken significant rehabilitation efforts and these warranted discreterecognition. However, I consider that a deduction of 15 per cent for addiction issuesand associated rehabilitative prospects would be well within the available range, aswould a discount of five per cent for remorse. I do not consider a global discount of20 per cent to reflect these issues was manifestly inadequate.Time spent on EM bail[19] Mr Simpkins argues that the Judge ought to have applied a discount of threeand a half months to reflect the time Mr Trower was on EM bail rather than threemonths.3 Again, the level of discount to be applied for this factor is also within asentencing Judge's discretion. Ordinarily a discount of between one-quarter and one-half of time spent on restrictive EM bail conditions will be appropriate. At just over40 per cent of the time spent on EM bail, I consider the discount of three months waswell within range.Methodology error[20] With respect to the learned Judge, it appears that there was a calculation errorby including the uplift for previous offending into "stage one" of the Mosesmethodology.4 This led to the application of the discounts to a larger starting pointand therefore applying larger overall discounts. Had the uplift for prior offending beenincluded in the second stage, the sentence would have come to two years, five months'imprisonment.Conclusion[21] As both counsel acknowledge, a discount of 25 per cent to reflect guilty pleasshould have been applied. If that occurred then the result is a final sentence of twoyears, three months' imprisonment.[22] Had the methodology error not been made, this would amount to a reductionof two months. It is possible this could be justifiable as not mere tinkering on the basisthat the entry of early guilty pleas should be recognised. However, in light of theone-month difference between the sentence actually imposed—two years, fourmonths' imprisonment—and the sentence had the full guilty plea discount beencredited—two years, three months' imprisonment—it cannot be said that the sentencewas manifestly excessive.3 Citing R v Bidois [2009] NZCA 426; R v Bishop [2009] NZCA 265; and Murray-MacGregor v R[2011] NZCA 66.4 Stuart v R [2021] NZCA 539 at [14]–[15], referring to Moses v R [2020] NZCA 296, [2020] 3NZLR 583.[23] Had the result been below two years, I would not in any event have convertedit to a sentence of home detention. Mr Trower now has a reasonably significant historyof offending involving methamphetamine extending back to 2016. He also has severalprevious convictions for driving offences and firearms charges. These have resultedin him serving several sentences of imprisonment.[24] Mr Trower also received a sentence of seven months' home detention on28 June 2016 on a series of drugs, firearms and driving charges. He was thenconvicted of breaching his home detention conditions less than four months later andhe also subsequently breached his post-detention conditions. These factors mean thatMr Trower was not a suitable candidate for a sentence of home detention even if theend sentence had been one of less than two years' imprisonment.Decision[25] The appeal against sentence is dismissed._____________________________Harvey J