KENNEDY v R [2018] NZHC 1931

KENNEDY v R [2018] NZHC 1931 [31 July 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-172[2018] NZHC 1931BETWEEN JOSHUA KENNEDYAppellantAND THE QUEENRespondentHearing: 23 and 31 July 2018Appearances: S Lance for AppellantH Steele and C Juneja for RespondentJudgment: 31 July 2018JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 31 July 2018 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Kennedy pleaded guilty in the District Court to a representative charge ofsupplying methamphetamine and a charge of being in possession of methamphetaminefor supply. On 23 May 2018, Judge Jelas sentenced him to two years and one monthimprisonment on both charges.1 Mr Kennedy appeals against sentence on the basisthat the Judge erred in several ways and this resulted in the end sentence beingmanifestly excessive.Factual background[2] Mr Kennedy pleaded guilty on the basis of an agreed summary of facts. Thisrecords that he came to the attention of the police when they were investigating thesale of methamphetamine in the Waimauku area. The police obtained a productionorder in relation to Mr Kennedy's cellphone, and discovered several text messagessuggesting he was involved in supplying methamphetamine to associates. The textmessages indicated Mr Kennedy had supplied one associate with methamphetamineon four occasions between 14 and 27 December 2017. On 19 December 2017, hesupplied another associate with 0.2 of a gram of methamphetamine.[3] The police executed a search warrant at Mr Kennedy's address early on themorning of 25 January 2018. Mr Kennedy directed the police officers executing thewarrant to a box located under the bench in the garage of his address. Inside the boxthe police found two snaplock bags containing a total of approximately 25.49 gramsof methamphetamine in crystal form. The box also contained two sets of scales, a ziplock bag containing smaller "point" bags and a small bag and container bothcontaining methamphetamine residue. In another container in the garage the policefound several needles, syringes and alcohol swabs.[4] When the police searched Mr Kennedy's vehicle, they located a containerunder the driver's seat of the vehicle with $2,350 of cash inside.1 R v Kennedy [2018] NZDC 10312.The Judge's decision[5] The Judge correctly observed that the offending fell towards the lower end ofband 2 identified in R v Fatu.2 This requires a starting point of between three and nineyears imprisonment. Taking into account not only the methamphetamine found atMr Kennedy's address but also the drug dealing activities revealed by the textmessages, the Judge selected a starting point of three years six months imprisonment.[6] The Judge then applied a discount of four months, or approximately ten percent, to reflect Mr Kennedy's previous good character. She applied a further discountof four months to reflect genuine remorse Mr Kennedy had expressed. This produceda sentence of two years ten months imprisonment before taking into account guiltypleas. The Judge applied a full 25 per cent discount for this factor, thereby producingthe end sentence of two years one month imprisonment.Argument on appeal[7] On Mr Kennedy's behalf, Mr Lance submits the Judge adopted a starting pointthat was too high. He submits the Judge ought to have selected a starting point of nomore than three years imprisonment.[8] Mr Lance submits the Judge should also have applied a discrete discount toreflect rehabilitative steps Mr Kennedy had taken since his arrest. This involved himattending counselling and completing a CADS programme.[9] Taking these factors into account, Mr Lance submitted the sentence ought tohave been one of less than two years imprisonment. This would have permitted theJudge to impose a sentence of home detention. Mr Lance contended a sentence ofhome detention would be appropriate in the present case because of Mr Kennedy'slack of previous convictions and rehabilitative prospects.2 R v Fatu [2006] 2 NZLR 72 (CA).Further evidence[10] During the hearing on 23 July 2018 I advised Mr Lance that I did not see howthe starting point adopted by the Judge could realistically be challenged given thematerial contained in the summary of facts. The amount of methamphetamine foundin Mr Kennedy's possession, coupled with the contents of the text messages, easilyjustified a starting point of three years six months imprisonment. The Judge alsoapplied a generous discount to reflect remorse and the maximum discount availablefor guilty pleas.[11] I was concerned, however, at comments attributed to Mr Kennedy in the pre-sentence report regarding the circumstances in which he came to be in possession ofthe methamphetamine found in the container in the garage. I was not able tounderstand these and was concerned that, properly understood, they may havelessened his overall culpability. This in turn may have called into question the startingpoint of three years six months imprisonment. I therefore invited Mr Lance to arrangefor Mr Kennedy to file and serve an affidavit setting out his explanation regarding thisissue in greater detail. I directed that nothing in the affidavit could contradict any ofthe facts contained in the summary of facts.[12] Mr Kennedy subsequently filed an affidavit containing the followingexplanation:6. In early December 2017 I was asked by a couple of friends whether Iwould be able to source any methamphetamine for them over theChristmas break. I got in touch with an old associate and he advisedme that this would not be a problem.7. I met with my friend who handed me a plastic container containingsome methamphetamine.8. Leading up to the December Christmas period I sold small amountsto my friends as set out in the summary of facts and text messages.9. I had paid $1,500 for this methamphetamine and my friend had saidthat we would 'sort the rest out later'.10. It was my understanding that there was approximately 9g leftoverfrom that first transaction. I simply hid this away in the garage, notsure what I was going to do with it.11. I went away to Northland with my family and other families over theNew Year break for a holiday.12. On the 24th of January 2018 I was at a family barbecue. I received amessage from the old associate who said he was, I think, coming downfrom up north. In hindsight, I think perhaps he was coming to obtainthe balance of moneys owing for the first methamphetamine delivery.However, I was not at home.13. He told me to 'check the shoes at the front door when I returnedhome'. When I did get home at approximately 9.30pm I checked theshoes at the front door and there was another package ofmethamphetamine left there. I had not asked for thismethamphetamine, had not paid for it. This time it was in a small ziplock bag.14. I did not want or need this methamphetamine. I did not want to keepselling methamphetamine, and there was methamphetamine alreadyleftover from what I had obtained for my friends before Christmas. Istashed this away in the garage as well on a 'out of sight out of mind'basis. The following morning at approximately 5.30am on the 25th ofJanuary 2018 the Police attended at my house. I co-operated withthem and showed them where the methamphetamine was hidden.15. As I understand, it is said to weigh approximately 25g. I thought itwas slightly less than this and am unsure whether that weight includesthe bag(s) in which the methamphetamine was contained.[13] Mr Steele for the Crown cross-examined Mr Kennedy regarding hisexplanation when the hearing resumed on 31 July 2018. Under cross-examination MrKennedy said the transactions referred to in his affidavit represented the onlyoccasions on which he had acquired methamphetamine from his associate and on-soldit to acquaintances. He also said he intended to return the nine grams ofmethamphetamine he had not been able to sell from the first delivery he received fromhis associate in December 2017. He maintained he had not asked his associate toprovide any more methamphetamine, and did not want to keep the methamphetaminehe found concealed in the shoe when he returned to his address on the evening of 24January 2018.DecisionStarting point[14] Viewed in the context of the matters contained in the summary of facts, theoffending fell squarely within band 2 identified in R v Fatu. The quantity ofmethamphetamine that was found at Mr Kennedy's address was well above thethreshold at which band 2 applies. This justifies a starting point between three andnine years imprisonment. Although the quantity of methamphetamine is not the solecriterion, the evidence relating to Mr Kennedy's drug dealing activity alsodemonstrated he was a reasonably busy low-level dealer in methamphetamine. Thefact that a reasonably significant quantity of cash was also found in his possession alsopoints to the level of his involvement in drug dealing activity.[15] I do not accept Mr Kennedy's evidence regarding the circumstances in whichhe came to be in possession of the methamphetamine found in his garage. I acceptthat the circumstances in which Mr Kennedy says he came to be in possession of theinitial quantity of methamphetamine from his associate are reasonably plausible. I donot accept, however, that Mr Kennedy decided he would return the nine grams ofmethamphetamine left over after he had supplied quantities of methamphetamine tohis associates. Had that been the case, I consider he would have taken active steps tocontact his associate in order to return the methamphetamine. Instead, he stored themethamphetamine in a manner consistent with that of a dealer storing it for future saleto customers.[16] Furthermore, I do not accept Mr Kennedy's explanation regarding the deliveryof methamphetamine to his address on 24 January 2018. He said themethamphetamine he received on 24 January 2018 would have been worth about$5,000. Mr Kennedy already owed his associate a significant sum of money in relationto the unpaid portion of the purchase price for the first quantity of methamphetamine.It defies belief that his associate would be prepared to supply a further quantity of 15grams of methamphetamine in the absence of any request for it and with money stilloutstanding in relation to the first supply. I conclude that Mr Kennedy received thesecond quantity of methamphetamine because he had asked his supplier to deliver it.The only reasonable explanation for this occurring is that he believed he would be ableto sell it.[17] These factors persuade me that the Judge's assessment of Mr Kennedy'sculpability was correct, and that the starting point of three years six monthsimprisonment was within the available range.Credit for rehabilitative efforts[18] The Judge included credit for Mr Kennedy's rehabilitative efforts within thecredit she gave for remorse. I do not consider the Judge was obliged to apply a separatediscount in relation to any rehabilitative efforts Mr Kennedy has undertaken.[19] Furthermore, the ultimate question for this Court is whether the end sentencewas manifestly excessive. In the present case the Judge gave Mr Kennedy a credit ofjust under 20 per cent for personal mitigating factors other than the guilty pleas. In acase that involves dealing in Class A drugs that is a significant discount for personalcircumstances. I do not consider a further discount to reflect rehabilitative effortscould have been justified.[20] I appreciate that Mr Lance seeks to have this Court reduce the sentence tobelow the threshold at which a sentence of home detention would be available. I alsoaccept that Mr Kennedy's lack of previous convictions means he may well have beena candidate for a sentence of home detention if the end sentence had been one of twoyears imprisonment or less. I do not see any principled basis, however, on which I caninterfere with the sentence. It is well within the available range and cannot bedescribed as manifestly excessive.Result[21] The appeal against sentence is dismissed.Lang JSolicitors:Crown Solicitor, AucklandCounsel:S Lance, Barrister, Auckland