ATKINS v NEW ZEALAND POLICE [2022] NZHC 61

ATKINS v NEW ZEALAND POLICE [2022] NZHC 61 [1 February 2022]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2021-416-10[2022] NZHC 61BETWEEN LARA MICHELLE KIMIORA ATKINSAppellantAND NEW ZEALAND POLICERespondentHearing: 26 January 2022 (via VMR)Appearances: W R Hawkins for AppellantC Stuart for RespondentJudgment: 1 February 2022JUDGMENT OF ISAC J[Appeal against sentence]Introduction[1] Ms Atkins appeals a sentence of two years and three months' imprisonmentimposed by Judge Cathcart on:(a) four charges of possession of methamphetamine for the purpose ofsupply;1(b) three charges of offering to supply methamphetamine;2 and(c) two charges of supplying methamphetamine.31 Misuse of Drugs Act 1975, ss 6(1)(f), and (2)(a); maximum penalty of life imprisonment.2 Section 6(1)(c) and (2)(a); maximum penalty of life imprisonment.3 Section 6(1)(c) and (2)(a); maximum penalty of life imprisonment.[2] The principal submission on behalf of the appellant is that the District Courtfailed to apply a sentencing methodology consistent with the Court of Appeal'sdecision in Moses v R,4 and failed to provide sufficient reductions to reflect the role ofaddiction in the offending and for remorse.The offending[3] Sentencing proceeded based on an agreed summary of facts.[4] On 10 November 2020 police executed an arrest warrant in relation toMs Atkins' partner. He was located in a motel room in Gladstone Road, Gisborne. Onpolice arrival Ms Atkins was located in bed with her partner. Police observed in plainview on a chair a large quantity of unused plastic snaplock bags and a cutdown plasticstraw.[5] A subsequent search of the motel revealed a rolled-up sock underneath a pillowon the bed containing a bag with 25.8 grams of methamphetamine. For the purposesof sentencing, it was accepted that Ms Atkins and her partner had obtained themethamphetamine together and were intending to sell half each to their own customers(equating to 12.9 grams each). Police also located $20,140 in cash in a backpackbelonging to Ms Atkins' partner, and a further $1,242.50 in his wallet. The backpackalso contained a set of digital pocket scales and cellphone. On the floor next to the bedwas a police radio scanner.[6] Police also located a further 11.1 grams of methamphetamine in a bag inMs Atkins' jacket pocket, along with a significant quantity of unused smaller plasticsnaplock bags. Another bag in the defendant's jacket pocket contained 3.5 grams ofmethamphetamine, but as its purity was less than one per cent both the parties, and theDistrict Court, ignored it for sentencing purposes. Police also located a further$7,542.60 in cash in Ms Atkins' clothing and bags.4 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.[7] Ms Atkins' cellphone was later searched and communications revealed furthermethamphetamine dealing. It consisted principally of offers to supply, and twoinstances of actual supply totalling a further 10 grams.[8] The agreed summary of facts also recorded:The defendant's Facebook Messenger conversations in October 2020 alsoshow that she owed a $15,000 methamphetamine debt to [her partner] whichshe paid off in parts. The total quantity attributable to that level of debt isaround 1½ ounces, or 48 grams.[9] Counsel for Ms Atkins and the Crown were able to confirm that the FacebookMessenger conversations between the appellant and her partner represented additionalmethamphetamine dealing by the appellant beyond the quantities noted at [5]and [6]above. As noted by the summary of facts, Ms Atkins' sentencing proceeded on thebasis that the total quantity of methamphetamine dealing in issue was 80 grams. Thisquantity was assessed "on a conservative basis".District Court decision[10] The Judge considered that the offending fell within band two of Zhang5 (supplyof commercial quantities between 5 and 250 grams), attracting a starting point betweentwo and nine years' imprisonment.6 While Ms Atkins may have had little awarenessof the scale of the operation behind her, the Court recognised that she was directlyinvolved in acquiring wholesale quantities of methamphetamine.7 The Judge settledon a starting point of four and a half years' imprisonment but reduced this to four yearsto reflect Ms Atkins' addiction and, it seems, diminished culpability.8[11] The Judge then imposed a "modest" uplift of two months to reflect previousdrug-dealing convictions.95 Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648 at [125].6 R v Atkins [2021] NZDC 18495 at [18].7 At [21].8 At [25].9 At [26]. In 2015, Ms Atkins was sentenced to three years and four months' imprisonment formethamphetamine related offences.[12] The Judge then provided the following discounts for personal mitigatingfactors:(a) a "full discount" for early guilty pleas equating to 12 and a halfmonths;10(b) a further deduction of five and a half months to reflect Ms Atkins'"substantial efforts" toward rehabilitation;11 and(c) a further five month deduction to recognise personal circumstancesraised in a section 27 report.12[13] The Judge refused to accept that there should be any discrete deduction forremorse.13 He viewed Ms Atkins' letter explaining her offending as "too little, toolate", noting that she had written a similar letter when appearing before the court forprevious drug dealing offending.[14] These deductions brought the starting point of 54 months14 down to a finalsentence of 27 months.15 An order was made, by consent, to forfeit $7,542.60 that wasfound in Ms Atkins' possession during the police search.16SubmissionsAppellant[15] Mr Hawkins, for Ms Atkins, submits that the sentence imposed of 27 monthsis manifestly excessive, contending that a sentence of 22 to 24 months is appropriate.10 At [27].11 At [29].12 At [34]–[36].13 At [35].14 I have taken the starting point as 54 months based on the Judge's conclusion of a four and a half-year sentence of imprisonment. It appears from the sentencing remarks, however, that the Judgemay have considered the revised starting point to have been 48 or 50 months, based on hiscalculations.15 At [37].16 At [38].[16] Mr Hawkins submits that the Judge incorrectly applied the Mosesmethodology. The appellant relies on Tarau v Police, where an appeal was allowed onthe basis that a failure to follow the Moses approach was accepted by this Court as anerror of approach.17[17] Mr Hawkins also submits that inadequate weight was given to the s 27 report,and that a discount in the range of 15–20 per cent was appropriate (up from the 10 percent discount given by the Judge). He also notes that while the discount made forrehabilitative steps was adequate, a further reduction of five per cent should have beenprovided for remorse and the time the appellant spent on restrictive bail conditions.Respondent[18] Mr Stuart, for the respondent, submits that while the Judge may not haveperfectly followed the approach in Moses, he nevertheless arrived at a sentence thatwas well within range. It follows that there was no material error in the end sentence.[19] Mr Stuart argues that no more than a 10 per cent discount could be allowed forpersonal circumstances and that there was "no compelling causative link" between thedifficulties Ms Atkins experienced as a child and young person and her drug dealing.[20] He submits that the Judge was correct to refuse a discount for remorse, notingthat Ms Atkins had in 2015 been convicted of commercial methamphetamine dealingand had then persuaded the Court and the pre-sentence report writer of her "sincereremorse".18 However, on this occasion the report writer observed that her "remorseand insight into the impact her offending has on the community was limited".[21] Further, Mr Stuart submits that there was nothing unusual or onerous aboutMs Atkins' bail conditions which were a residential condition with a night-timecurfew, while being the caregiver for young children.17 Tarau v Police [2021] NZHC 1793.18 Atkins v Police [2015] NZHC 1836 at [17].Standard of Appeal[22] Appeals against sentences 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 be allowed by this Court only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldhave been imposed.19 In Tutakangahau v R the Court of Appeal stated, a "court willnot intervene where the sentence is within the range that can properly be justified byaccepted sentencing principles".20 It is only appropriate for this Court to intervene andsubstitute its own views if the sentence being appealed is "manifestly excessive".21Relevant law[23] The Court of Appeal in Moses v R described a two-stage approach tosentencing in these terms:22[46] A two-step methodology should be used:(a) the first step calculates the adjusted starting point,incorporating aggravating and mitigating features of theoffence;(b) the second step incorporates all aggravating and mitigatingfactors personal to the offender, together with any guilty pleadiscount, which should be calculated as a percentage of theadjusted starting point.[47] Because the court fixes all second-step uplifts and discounts byreference to the adjusted starting point under this methodology, it makes nodifference to sentence length if the guilty plea discount is the last step in thesentence calculation. However, the sentencing judge should still quantify aguilty plea discount, for several reasons: the discount is justified in substantialpart by systemic and social considerations distinct from the offender'spersonal circumstances; the discount must be transparent, which aidspredictability; and the calculation allows others, including the offender andthe victim, to identify the sentence that would have been imposed but for theplea. It should be apparent that the discount does not exceed the maximum of25 per cent of the adjusted starting point.19 Criminal Procedure Act 2011, ss 250(2) and 250(3).20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].21 Ripia v R [2011] NZCA 101 at [15].22 Moses v R, above n 4.DiscussionIssue 1 – leave to appeal out of time[24] Ms Atkins was sentenced on 16 September 2021. The Notice of Appeal wasfiled on 26 November 2021, outside the 20 working-day appeal period.23 New counselhad to be instructed and I understand a fresh application for legal aid was made. TheCrown does not oppose leave to appeal and there does not appear to be any prejudiceas a result of the delay. Accordingly, leave is granted.Issue 2 – the sentence appeal[25] In order to succeed on her appeal Ms Atkins must establish two points. First,she must establish an error of approach on the part of the Judge. In addition, she mustdemonstrate that any such error led to a manifestly excessive sentence. In other words,the error must be material to the sentencing outcome.[26] While I am satisfied that the sentencing methodology applied by the Judge didnot strictly conform with the two-stage approach contemplated by Moses, and is likelyto constitute an error, the difficulty for Ms Atkins is that any error broke in her favour.[27] First, the Judge provided a discrete discount of over 10 per cent to reflectMs Atkins' "addiction". It is not entirely clear if this deduction was made at stage 1 or2 of the Moses analysis, but it appears the Judge took it into account as a mitigatingfactor under stage 2. Regardless, in addition to this discount the Judge added a furtherreduction of five and a half months to reflect the appellant's rehabilitative efforts.Combined, this was a 21 per cent reduction from a starting point of 54 months.[28] Given the appellant's relatively recent previous convictions for dealingmethamphetamine, and the level of commerciality involved in the index offending,recognised by the Judge as the acquisition and sale of wholesale quantities, theimportance of addiction in setting the starting point is reduced. As the Court of Appealconcluded in Moses:2423 Criminal Procedure Act 2011, s 248(2).24 Moses v R, above n 4 at [62].We are prepared to accept that [Ms Moses] was addicted, but that does notexplain offending on this scale. Her motivation was financial.[29] This observation is also applicable to Ms Atkins. A total reduction of 10–15per cent only for addiction and rehabilitative efforts could not have been criticised onappeal. The total deduction provided by the Judge of 21 per cent was thereforeextremely generous.[30] Second, I agree with Mr Stuart that no more than a 10 per cent discount waswarranted for the matters raised in the s 27 report given this was her second foray intoserious drug dealing within a five year period, and at the age of 53. Given thecircumstances of the 2015 offending,25 Ms Atkins' recent drug dealing appears to haveconstituted a significant escalation in commercial dealing.[31] Nor is there anything in the criticism of the Judge's conclusion that a discretediscount for remorse was unavailable. There was nothing beyond the plea itself tosuggest further credit was warranted. And I agree with Mr Stuart that the conditionsof bail did not warrant any discrete credit at sentencing.[32] Standing back and looking at the end sentence, I have concluded there can beno criticism of it. The adopted starting point of four and a half years' imprisonmentwas clearly within the available range. Given an end sentence of two years and threemonths' imprisonment after mitigating factors, Ms Atkins received a total discount of50 per cent to reflect personal mitigating factors including her guilty plea. On anyview, that was a merciful approach.[33] Finally, the Judge gave a modest two month uplift for aggravating factorspersonal to the appellant, being her previous offending. In July and August 2015Ms Atkins was sentenced on charges of:(a) possession of methamphetamine for supply;(b) a representative charge of supplying methamphetamine;25 See n 26 below.(c) seven charges of offering to supply methamphetamine;(d) two charges of conspiracy to supply methamphetamine; and(e) three charges of perverting the course of justice.[34] She received a total sentence of three years and four months' imprisonmentfollowing appeal.26[35] The relative proximity and seriousness of the prior offending warranted adiscrete uplift of up to six months given Ms Atkins' previous sentence of imprisonmentdid little to deter further offending.[36] Combined, I am satisfied that any error in approach by the District Court hasnot resulted in any adverse sentencing outcome for Ms Atkins. I am therefore notsatisfied that any error was material, or that the sentence imposed was manifestlyexcessive.Result[37] The appeal is dismissed.Isac JSolicitors:Bramwell Bate, Hastings for AppellantCrown Solicitor's Office, Gisborne for Respondent26 Atkins v Police, above n 18. At [6] this Court noted that the total quantity of dealing was believedby Police to have been up to 20 grams, being a quarter of the quantity in issue in the indexoffending. In her earlier offending, Ms Atkins appears to have acted as a mid-level dealer,providing methamphetamine to a number of street level dealers, including her son. The charges ofperverting the course of justice related to Ms Atkins successful efforts to have associates claimownership of quantities of drugs she possessed. One of them was imprisoned for the falseadmission.