PORTER v NEW ZEALAND POLICE [2022] NZHC 415

PORTER v NEW ZEALAND POLICE [2022] NZHC 415 [10 March 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-000018[2022] NZHC 415BETWEEN JOSHUA NEIL PORTERAppellantAND NEW ZEALAND POLICERespondentHearing: 9 March 2022Appearances: K E Bucher for AppellantC L T-W Fiennes for RespondentJudgment: 10 March 2022JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 10 March 2022 at 9.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] On 2 February 2022, Joshua Porter was sentenced to two years and six months'imprisonment by Judge M Callaghan in the Christchurch District Court1 on thefollowing charges:1 R v Porter [2022] NZDC 1638.(a) possession of methamphetamine for supply;2(b) unlawful possession of a restricted weapon;3(c) unlawful possession of ammunition (x 2);4(d) unlawful possession of a pistol;5(e) possession of utensils for methamphetamine;6 and(f) possession of utensils for cannabis.7[2] Mr Porter appeals against that sentence on the basis it was manifestly excessivebecause the Judge adopted a starting point that was too high and failed to provideappropriate discounts for Mr Porter's personal mitigating factors. It is submitted asentence of home detention was appropriate in the circumstances.Facts[3] On 11 December 2020 police executed drug-related search warrants atMr Porter's address in Prebbleton. This included searches of Mr Porter's two motorvehicles. Police also conducted a search of his lock-up storage unit in Rolleston. Onthe same day Mr Porter arrived at the Community Probation office at Annex Road,Christchurch, in a Toyota vehicle, for which a search warrant was also sought andgranted.[4] Inside the Toyota, police located a .22 cut-down Ruger pistol, along with10 rounds of .22 calibre ammunition and electronic scales. From the search of thePrebbleton address, police located a commercial quantity of methamphetamine(estimated to be 23.5 grams), $22,000 in cash and a large amount of cutting agent.2 Misuse of Drugs Act 1975, s 6(1)(c) and (2) – maximum penalty of life imprisonment.3 Arms Act 1983, s 45(1) – maximum penalty of four years' imprisonment and/or a fine of $5,000.4 Arms Act, s 45(1) – maximum penalty of four years' imprisonment and/or a fine of $5,000.5 Arms Act, s 50(1)(a) – maximum penalty of three years' imprisonment and/or a fine of $4,000.6 Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year's imprisonment and/or afine of $500.7 Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year's imprisonment and/or afine of $500.Police also located a bong and a pipe in Mr Porter's bedroom next to his bed, as wellas 14 rounds of .22 calibre ammunition. During the search, Mr Porter's partnerprovided her phone which held extensive drug tick-lists in Mr Porter's name indicatingdrug dealing in the tens of thousands of dollars. Mr Porter's partner told police thatMr Porter had made these entries on her phone. From the search of Mr Porter'slock-up, police also located a taser and a 12-gauge shotgun round. Neither Mr Porternor his partner hold a firearms licence.District Court decision[5] The Judge took the methamphetamine possession offending as the lead charge.He held that the offending sat squarely within band two of Zhang v R because of thequantity of methamphetamine and cash located.8 The Judge also placed weight on thelarge amount of cutting agent found and evidence of past dealing by way of thetick-list, which indicated Mr Porter was not "just a bottom-line dealer" but supplyingsignificant amounts of methamphetamine. The Judge considered this was not a supplyoperation designed to only fund Mr Porter's drug use. Having taken into account theauthorities referred to him,9 the Judge adopted a starting point of three years andeight months' imprisonment.[6] The Judge uplifted the starting point by 15 months for the firearms charges andby three months for Mr Porter's previous convictions for supplyingmethamphetamine. This provided an adjusted starting point of five years andtwo months' imprisonment.[7] The Judge then applied a discount of 15 per cent for Mr Porter's addiction andthe rehabilitative steps he had taken since the offending to address it, including thecompletion of a number of courses. The Judge provided a further 10 per cent discountto reflect the matters outlined in the s 27 report and their bearing on Mr Porter'saddiction issues, and a 20 per cent discount for his guilty pleas, which were entered atthe stage of a pre-trial callover. From the resulting sentence of two years and8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.9 Joyce v R [2020] NZCA 124; Govender v R [2019] NZHC 3212.10 months' imprisonment, the Judge then applied a discount of four months for theapproximately eight months Mr Porter had spent on "home detention".10[8] The end sentence was therefore one of two years and six months'imprisonment. An order for forfeiture of the $22,000 cash was also made.Principles on appeal[9] 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.11 As the Court of Appeal commented in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".12 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.13 In making this assessment, appellate courts do not interfere with thelegitimate exercise of judicial discretion or indulge in mere tinkering with thesentence.SubmissionsAppellant's submissions[10] On behalf of Mr Porter, Mr Bucher submitted the starting point adopted by theJudge was manifestly excessive. While he accepted there was an element ofcommerciality to the offending, he submitted the Judge failed to properly take intoaccount that Mr Porter's offending was carried out primarily to sustain his significantmethamphetamine addiction. Mr Bucher also submitted the Judge failed to considerthat this was small-scale and street-level drug offending as evidenced by the relativelymodest quantity of methamphetamine found. Furthermore, he submitted the starting10 This appears to be an error as Mr Porter in fact spent this time on electronically monitored bail(EM bail), which the Judge identified earlier in his decision.11 Criminal Procedure Act 2011, ss 250(2) and 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].13 Ripia v R [2011] NZCA 101 at [15].point adopted was inconsistent with similar cases. While Mr Bucher acceptedMr Porter was found with more cash than in many of the cases cited, he argued that ineach of those cases there were other indicators of supply and, in some of them, actualevidence of transactional supply. He submitted a starting point of two years andnine months' imprisonment was appropriate.[11] Secondly, Mr Bucher submitted the Judge failed to provide appropriatediscounts to reflect Mr Porter's personal mitigating factors. He argued Mr Porter'scausative methamphetamine addiction and the rehabilitative steps he had taken on hisown initiative while subject to electronically monitored bail to address the underlyingcauses of his offending, merited more substantial credit. He submitted it is difficult toenvisage what more Mr Porter could have done while on EM bail to address hisaddiction issues and that the reports indicate the intervention was successful. In thesecircumstances, he submitted a discount in the range of 30 per cent for these matterswas justified.[12] In his written submission, Mr Bucher also argued that, pursuant to s 10B of theSentencing Act 2002, the Court was required to take into account any instrumentforfeiture order that is made, and that a discount in the vicinity of three months wasjustified for the $22,000 cash that was found and ordered to be forfeited.[13] After such adjustments were made, Mr Bucher argued the sentence would fallwithin the range where home detention could be considered. Here, it was submittedthe purposes and principles of sentencing could have appropriately been met by asentence of home detention. He highlighted that the presumption in favour ofimprisonment could be overcome because Mr Porter has accepted responsibility forthe offending and demonstrated real rehabilitative prospects. Mr Bucher submittedthat if the Court is not of the view that the end sentence is within the range where homedetention can be considered, it is nonetheless relevant that Mr Porter has spent asignificant period (183 days) in custody in relation to these charges. Citing Kidman vR, he suggested the Court could take the time served into account in order to bring theend sentence below two years so that home detention could be considered.1414 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268.Respondent's submissions[14] For the Police, Ms Fiennes submitted there was no error in the approach takenby the Judge and the appeal should be dismissed. Firstly, she submitted the startingpoint adopted was within range as Mr Porter's offending sits clearly within bandtwo of Zhang. Ms Fiennes accepted Mr Porter suffered from a methamphetamineaddiction and a lower starting point may have been warranted if Mr Porter's offendingwas solely driven by addiction. However, she argued this was not the case here asMr Porter was not a "bottom-line dealer" solely motivated by his addiction, but wasengaged in more than small-scale offending as evidenced by the tick-list, scales, andamount of cash and cutting agent found. Ms Fiennes therefore submitted thisoffending falls between the lesser and significant roles articulated in Zhang. Shefurther argued that other cases illustrate the starting point was within the availablerange and that the Judge could have imposed a sentence of four years' imprisonment.[15] In relation to the discounts provided, Ms Fiennes accepted Mr Porter sufferedfrom and sought treatment for his methamphetamine addiction. However, shesubmitted a 30 per cent discount was not appropriate here because the low-levelcommerciality of the operation pointed against addiction being the sole cause ofMr Porter's offending and that the cash, equipment and firearms found indicate itproduced a considerable income. She argued there is no evidence Mr Porter'saddiction prevented him from making rational choices and a discount of 15 per centfor his addiction and rehabilitative efforts was clearly within range.[16] Ms Fiennes further submitted the forfeiture order made by the Judge must havebeen made pursuant to s 32 of the Misuse of Drugs Act 1975, under which the Judgemust have been satisfied the $22,000 in cash had been received by Mr Porter in thecourse of or consequent upon his methamphetamine offending. In this context, sheargued s 10B of the Sentencing Act does not apply and no further discount is requiredto account for the forfeiture. Additionally, Ms Fiennes submitted no further discountswere required for the time Mr Porter spent in custody and that, where the appellantwas driven by financial gain as well as addiction, a sentence of imprisonment was notmanifestly excessive.AnalysisStarting point[17] The tariff judgment for methamphetamine offending is Zhang v R.15 There isno dispute that Mr Porter's offending (possession of 23.5 grams) fell within bandtwo of Zhang, which provides that a starting point of two to nine years' imprisonmentwill be appropriate where the dealing involves between five and 250 grams ofmethamphetamine.16 Quantity is relevant because it provides a reasonable proxy forthe social harm done by the drug and illicit gains made from its importation and sale.17[18] The Court of Appeal held in Zhang that the role an offender performs in theoffending will have an important influence on the categorisation of their culpabilityby enabling judges to properly assess the seriousness of the conduct and the criminalityinvolved.18 The Court identified three categories of involvement - "lesser","significant" and "leading".19 In providing guidance as to the role, the Court observed"role is a matter more likely to be known by the offender than the Crown" but inpractice, the facts necessary to establish guilt will often justify inferences about role,knowledge and gain.20 Where those inferences are sufficient to prove an aggravatingfact, an evidential burden will move to the offender to displace the inference.21[19] Counsel referred to the following cases which they submitted were ofassistance in determining the appropriate starting point:(a) Tuuta v R:22 the appellant was found in possession of 16.3 grams ofmethamphetamine, $4,230 in cash, a sawn-off shotgun and 11 roundsof ammunition. The Judge considered the quantity was a little abovethe bottom of band two and the appellant's role was slightly higher thanthe bottom of the "lesser" category. There was no persuasive evidence15 Zhang v R, above n 8.16 At [125].17 At [103].18 At [104], [110] and [118].19 At [126].20 At [127].21 At [127].22 Tuuta v R [2019] NZHC 2788.the appellant was motivated solely or primarily by his own addiction.In light of Zhang, the Judge considered a starting point of three yearswas too high and two to two and a half years' imprisonment would havebeen within range for the methamphetamine offending.(b) Tregoweth v R:23 the appellant was stopped by police and found with2.8 grams of methamphetamine, as well as $5,680 in cash, utensils anda number of weapons. A total of 40.3 grams was then found on him inprison. It had been accepted the appellant was involved in dealing, inpart, to fund his own addiction and had a limited role. A starting pointof two years and six months' imprisonment was upheld on appeal.(c) Sherriff v R:24 the appellant was observed weighing methamphetamineon a set of digital scales and police invoked powers to search her car.They located 10.96 grams of methamphetamine along with scales, atick-list and $245 in cash. A search of her cell phone uncovered that shehad offered to supply 18 grams over approximately 20 occasions in a10-week period. The total amount of methamphetamine involved wastherefore 28.96 grams. A starting point of two years and nine months'imprisonment was not challenged on appeal, which reflected theappellant's well-documented addiction that was driving her offending,and her lesser role towards the lower end of band two, albeit not at thelowest end.(d) Tapine v R:25 the appellant was found in possession of 30 grams ofmethamphetamine, micro-scales, small unused zip-lock bags and $840cash. At his address, two crossbows, a stun gun and glass pipes werealso located. The Judge determined the appellant's role did not fitperfectly into either the lesser or significant category. On one hand, hewas likely motivated by his own addiction and there was no evidencehe was directing others or was aware of the operation's overall scale.23 Tregoweth v R [2021] NZCA 311.24 Sherriff v R [2021] NZHC 3414.25 Tapine v R [2020] NZHC 977.On the other hand, the quantity of methamphetamine was relativelyhigh (to the point it would likely generate an income in excess of thatrequired to finance his drug habit), his possession of equipmentindicated his role was greater than just a distributor, and the presenceof firearms indicated his dealing activities were at a level wherepersonal protection was required. A starting point of three years'imprisonment was upheld on appeal.(e) Griffin v R:26 the appellant was found in possession of 37 grams ofmethamphetamine and faced various firearms charges. He was alsofound with $38,216 in cash and text message data indicated supplytransactions to 18 individuals. The Judge reduced the starting point offour years' imprisonment to one of three years and six months onappeal.(f) Bailey v R:27 the appellant was found in possession of 3.231 grams ofmethamphetamine, $3,530 in cash, small empty zip-lock bags andscales. He had also offered to supply approximately 15.5 grams ofmethamphetamine on 18 occasions in weights varying from 0.25 gramsto 7 grams. The Judge considered the appellant was a small-scale streetdealer who was not addicted to methamphetamine but made a minorprofit and therefore "walked the line between a significant and lesserrole".28 The Judge upheld a starting point of three years and threemonths' imprisonment on appeal.(g) Joyce v R:29 the appellant was found with 28.35 grams ofmethamphetamine, $12,885 in cash, a tick book, shotgun andtwo airguns. There were also cell phone messages indicating he hadsupplied 3.76 grams of methamphetamine. The Court of Appealdescribed the appellant as a street–level dealer who soldmethamphetamine both to finance his drug habit and meet his living26 Griffin v R [2020] NZHC 548.27 Bailey v R [2021] NZHC 2225.28 At [43].29 Joyce v R, above n 9.costs. However, it determined he also sold reasonably significantquantities of methamphetamine and likely generated a considerablecash income. The Court said the number of firearms he possessed alsoprovided an indicator of the level of his dealing activities and, althoughhe suffered from an addiction, there was no evidence it was such as todiminish his culpability. The Court consequently adopted a startingpoint of four years' imprisonment.[20] As in Tapine, Bailey and Joyce, I do not consider Mr Porter's role fits neatlywithin either the lesser or significant categories because it involves elements referableto both. It is common ground that Mr Porter suffers from an addiction tomethamphetamine, as is apparent from his possession of utensils and the rehabilitativeprogress he has subsequently made. While there is no suggestion Mr Porter wasinvolved in a particularly sophisticated supply operation, an inference can clearly bedrawn from the evidence that this was more than limited street-level offending solelyor even primarily motivated by Mr Porter's addiction. There was an element ofcommerciality to Mr Porter's offending which placed him above a mere distributor,given the tick-list, scales and the significant amount of cash and cutting agent he wasfound in possession of. The quantity of methamphetamine Mr Porter possessed wouldlikely have generated an income in excess of that required to purely finance his drughabit and the taser, pistol and ammunition he possessed are potentially indicative ofthe level of his dealing activities. In view of such commerciality and the degree oforganisation displayed, there is no evidence to suggest Mr Porter's addiction tomethamphetamine impaired his ability to make a rational choice such as to diminishhis culpability.[21] Therefore, I consider Mr Porter's role is appropriately categorised assomewhere between lesser and significant. Mr Porter's offending was more seriousthan in Tapine where, although the offender was in possession of a larger quantity ofmethamphetamine, the presence here of more cash, cutting agent and tick-listsindicated a higher level of commerciality. His offending was also more serious thanin Bailey as, in addition to the above reasons, Mr Porter also had moremethamphetamine. I consider the offending is most analogous with Griffin and Joycewhich provide for a range of between three years and six months and four years'imprisonment. In this context, the starting point adopted by the sentencing Judge ofthree years and eight months, although stern, was not manifestly excessive. WhileMr Porter had less methamphetamine and less cash than the offender in Griffin, itshould be borne in mind that the focus on appeal in that case was the need for paritybetween the sentences imposed on the appellant and his co-offender which meant thefour-year sentence imposed on the appellant was assessed largely in relation to thelenient three-year sentence given to his co-offender.[22] In my view, the circumstances in Tuuta, Tregoweth and Sherriff aredistinguishable from the present offending. The offending in Tuuta involved lessmethamphetamine and cash, and no further evidence of commerciality or of acausative addiction. The appeal was also heard only a week after the release of Zhang,which meant submissions were invariably "iterative" and without the benefit of aframework of similar authorities.30 In Tregoweth and Sherriff there was also moredemonstrable evidence of the offenders' addiction and the indicators of commercialitywere not as strong as here.Discount for addiction and rehabilitative steps[23] The second ground of appeal advanced on behalf of Mr Porter is that hismethamphetamine addiction and rehabilitative steps taken while on EM bail meritedmore substantial credit than the 15 per cent afforded by the Judge. No issue is takenwith the 10 per cent discount provided for the matters set out in Mr Porter's s 27 report,or the 20 per cent discount for his guilty pleas.[24] The Court of Appeal in Zhang considered the personal mitigating factor ofaddiction particularly germane to methamphetamine offending and made severalpoints. The Court acknowledged that strong pro-social tendencies may beoverwhelmed by dependence,31 that addiction calls into question the effectiveness ofdeterrence,32 and that it calls for consideration of a rehabilitative response as part of30 Tuuta v R, above n 22, at [12].31 Zhang v R, above n 8, at [145].32 At [146].sentencing.33 However, the Court accepted "non-causative addiction will be of littlemitigatory relevance"34 and that:35 any such discount should be based on persuasive evidence, as opposed tomere self-reporting Inasmuch as a stage two discount for mitigatingcircumstances is engaged, the onus of proof (to the civil standard) lies on theoffender to establish the extent and effect of addiction.[25] The Court continued to say that addiction may logically give rise to a discountof up to 30 per cent but this "depend[s] on the extent to which it mitigates moralculpability for the offending".36[26] In the present case, it is accepted Mr Porter suffers from a methamphetamineaddiction. However, as discussed above, I do not consider the evidence is sufficientlypersuasive for Mr Porter to be able to discharge the onus on him to establish hisaddiction was causative of his offending. I acknowledge the s 27 report indicatesMr Porter began using methamphetamine when he was a teenager and since 2016 hasmaintained gang connections who provided him with easy access to drugs. However,between the intervening period of 2010 to 2016, Mr Porter ceased offending and isreported to have abstained from drugs and become a qualified painter with his ownbusiness. This capacity to abstain and the low-level commerciality of the supplyoperation here point against addiction being the sole or primary cause of his offending.[27] However, I accept that Mr Porter has engaged in significant rehabilitativeinterventions while subject to EM bail which have been aimed at addressing hisaddiction to methamphetamine. Mr Porter was bailed to the Ahikaa Trust inJune 2021. A letter from the manager of the Trust outlines that Mr Porter "completedall the programmes that [it] has on offer" as well as an eight-week residentialprogramme at the Salvation Army Bridge Mt Eden. A treatment summary formprovided by Mr Porter's case worker at the Bridge programme stated Mr Porterdemonstrated a high motivation to change while facing "multiple behaviourchallenges". On his own initiative, Mr Porter also completed the 12-week Hikoi o TeNgangara programme, a methamphetamine addiction education course. The33 At [150].34 At [147].35 At [148], citing Sentencing Act 2002, s 24(2)(d).36 At [149].pre-sentence report writer also noted Mr Porter continued to report abstinence fromsubstances and displayed "some positive change" since completing residentialtreatment but, in going on to recommend a sentence of imprisonment, observed thathe needs to develop a strong support network and continue building on this change toavoid relapse into substance use.[28] Mr Bucher referred to Keenan-Fry v Police, where Wylie J afforded a discountof 20 per cent for the "major part" addiction played in the offending.37 The Judgeoutlined it was clear the offender had genuinely sought to engage in rehabilitativeefforts and commented: "It is difficult to see that [he] could have done much more".38A further 10 per cent discount was provided to recognise the offender's varioussuccessful rehabilitative steps. However, in that case, the Court had the benefit of apre-sentence report in which Mr Keenan-Fry advised he had been consuming onaverage between one and two grams of methamphetamine a day, an alcohol and drugtreatment report prepared by Community Alcohol and Drugs Services that assessedhim as suffering from severe methamphetamine use disorder, and a s 27 reportdisclosing that the offender joined a gang at an early age and faced persistent social,emotional and cultural disadvantage. Moreover, Mr Keenan-Fry had engaged in asignificant number of rehabilitative programmes in custody, supported otherparticipants and proposed to undertake further programmes. The evidence ofaddiction and extent of rehabilitative interventions undertaken in Keenan-Fry isclearly more comprehensive than in the present case.[29] Conversely, in Joyce the Court of Appeal accepted the appellant had"longstanding dependency issues with methamphetamine", had shown considerableinsight into his addiction, was motivated to address his dependency issues, and had, toa similar extent to Mr Porter, completed an intensive rehabilitative programme andattended appointments focusing on relapse prevention.39 There, the Court held adiscrete discount of approximately 10 per cent was appropriate to reflect theappellant's dependency issues and his rehabilitative steps.37 Keenan-Fry v Police [2021] NZHC 562 at [28].38 At [31].39 Joyce v R, above n 9, at [30]-[32].[30] When considered in totality with the additional 10 per cent discount the Judgeprovided for Mr Porter's personal circumstances as reflected in the s 27 report, and inview of the above authorities, I am satisfied it was open to the Judge to provide a15 per cent discount for his addiction and rehabilitative efforts and the Judge did noterr in doing so.Discount for forfeiture[31] Although the Judge did not explicitly state the legislative basis for making theforfeiture order, I accept he must have made the order pursuant to s 32 of the Misuseof Drugs Act 1975. If it was made under this section, Mr Bucher acknowledged nodiscount need be applied to the sentence under s 10B.[32] In making the order, the Judge must have been satisfied the $22,000 in cashwas received by Mr Porter in the course of or consequent upon his methamphetamineoffending and I agree such a finding was clearly available on the evidence. Even ifthere was evidence some of the cash had come from legitimate sources, this would notconstitute a mitigating factor because it is the availability of the money as the workingcapital of the enterprise that renders it liable to forfeiture.40 This cash was part andparcel of Mr Porter's drug dealing activities. No further discount was required toaccount for the forfeiture order made in respect of the $22,000 cash.Additional discounts for time spent in custody and on EM bail[33] The Judge provided a discount of four months for the fact Mr Porter had "beenon home detention and carried out the rehabilitative courses".41 In referring to "homedetention", it appears the Judge intended to refer to the eight months Mr Porter hadspent on EM bail since June 2021. There does not appear to be any objection to thisdiscount.[34] I accept the respondent's submission that no further discounts are required forthe time Mr Porter spent in custody. When an offender is sentenced to imprisonment,s 82 of the Sentencing Act provides that the Court must not, in determining the length40 McKechnie v R [2018] NZHC 1811 at [5], citing Keen v R [2015] NZCA 221 at [15].41 R v Porter, above n 1, at [28].of the sentence, take into account any time spent in pre-trial custody. This does notmean that credit is not given for such time spent, but that it occurs administrativelyand automatically under s 91 of the Parole Act 2002. Those provisions do not applywhere a sentence of home detention is imposed, in which case credit is given as partof the Court's sentencing discretion.42[35] In any event, given the elements of commerciality and financial gain here,coupled with the lack of evidence Mr Porter's rational choice was materiallydiminished by his addiction, I do not consider this is an appropriate case to exercisethe Court's discretion to take time served into account so as to bring Mr Porter'ssentence within the range that home detention can be considered.43 An imprisonmentsentence was justified here for the purposes of deterrence and denunciation given thepresumption of imprisonment in cases involving methamphetamine offending,44 therepetitive and low-level commercial nature of Mr Porter's offending and his risks ofrelapse in a domestic environment, as noted by the pre-sentence report writer.Conclusion[36] The appeal is dismissed. The end sentence reached of two years andsix months' imprisonment was within range and no discernible error was made by theJudge.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:Mr K Bucher, Barrister, Christchurch42 Harris v Police [2022] NZHC 345 at [21]-[22], citing Simon France (ed) Adams on Criminal Law– Sentencing (online ed, Thomson Reuters) at [SA82.03A].43 Kidman v R, above n 14, at [15].44 Misuse of Drugs Act, s 6(4).