DUNN v POLICE [2020] NZHC 316

DUNN v POLICE [2020] NZHC 316 [26 February 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2019-488-40CRI-2019-488-44[2020] NZHC 316BETWEEN LEAH DUNNAppellantAND NEW ZEALAND POLICERespondentHearing: 26 February 2020Appearances: D Sayes for the AppellantC Taylor for the RespondentJudgment: 26 February 2020ORAL JUDGMENT OF GORDON JSolicitors: Crown Solicitor, WhangareiCounsel: D Sayes, AucklandIntroduction[1] Leah Dunn pleaded guilty to 22 charges of possession of methamphetaminefor supply,1 and one charge of breach of community work.2 She was sentenced to22 months' imprisonment on 18 November 2019 in the District Court.[2] Ms Dunn appeals her sentence on the grounds that the Judge erred bycombining the discounts for the causative link between addiction and offending andfor the guilty pleas, thus giving an insufficient discount.Background facts[3] Stated shortly, Ms Dunn texted people agreeing to supply methamphetamine22 times. Each circumstance gave rise to a corresponding charge of possession forsupply.[4] Previously Ms Dunn was sentenced to 140 hours of community work. Sheonly completed one and a half hours, leaving an outstanding total of 138.5 hours. Thisoccasioned the breach of community work charge.District Court Decision[5] The Judge, in considering the charges of supplying methamphetamine,calculated that Ms Dunn had agreed to supply, in total, 24.7 grams ofmethamphetamine to her various associates. Her Honour commented that many ofMs Dunn's previous offences were for drug-related offending. The Judgeacknowledged Ms Dunn's honesty regarding her self-confessed methamphetamineaddiction, which fueled the offending behind the current charges.[6] Her Honour placed Ms Dunn's offending in band 2 of Zhang v R, namelycommercial quantities between five and 250 grams.3 The Judge went on to examineZhang, highlighting that in setting a starting point, the Court of Appeal had found the1 Misuse of Drugs Act 1975 s 6(1)(c). Maximum penalty: life imprisonment.2 Sentencing Act 2002 s 71(1)(a). Maximum penalty: three months' imprisonment or a fine notexceeding $1,000.3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].quantity of drugs relevant but not the sole determinant. Furthermore, the Judgediscussed how addiction could be a personal mitigating feature and that it could be afactor for the Court to consider in Ms Dunn's case.[7] The Judge considered a starting point of 30 months appropriate, although noreasons were provided for this. No uplift was applied, but a 25 per cent global discountwas given for both Ms Dunn's guilty plea and her addiction. This rendered an endpoint of 22.5 months' imprisonment, which the Judge rounded down to 22 months'imprisonment.[8] Ms Dunn was convicted and discharged in respect of community work.Approach on Appeal[9] To allow this appeal I must be satisfied, in accordance with s 250 of theCriminal Procedure Act 2011, that an error occurred in imposing the sentence, and thata different sentence should be imposed.4[10] An appeal can be allowed either because the sentence was manifestly excessiveor wrong in principle.5 In Tutakangahau v R the Court of Appeal stated that the conceptof "manifestly excessive" is a means of examining the significance of the error in asentence, to decide whether a different sentence should be imposed.6 The court's focusshould be on the final sentence imposed rather than its component parts or how thesentence was eventually reached.[11] Neither party contests the starting point of 30 months' imprisonment. It is inaccordance with the appropriate band in Zhang, and hence was well within theavailable range for a starting point in this case.4 Criminal Procedure Act 2011, s 250(2).5 R v Brooks [1950] NZLR 659 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.Counsel's SubmissionsThe Appellant[12] Mr Sayes for Ms Dunn submits that the treating of the guilty plea and theaddiction discount together was inappropriate.7[13] He further submits that the guilty plea discount would have warranted anindependent 25 per cent, and that since the police had not contested that Ms Dunn wasaddicted and was offending to feed her addiction, thus providing the necessary causallink, some discount would be appropriate.The Respondent[14] Mr Taylor, counsel for the respondent, submits that the Clifford approach is notmandatory, and the question is simply whether the final sentence was just.[15] Mr Taylor also submits that the Judge's rounding should be included in thecalculation of the discount percentage, which comes to a shade over 25 per cent. Thisindicates that some independent discount was given for addiction, and the Judge'sinitial assessment ought to be left intact. However, in oral submissions, Mr Taylor didaccept that perhaps a greater discount for addiction would have been warranted.AnalysisZhang on addiction[16] Zhang makes it clear that addiction can stand as an independent discount.8Firstly, it was noted that such considerations can impair the rational choice made tooffend, and thereby diminish moral culpability.9 Secondly, diminished opportunity tomake a rational choice by consequence, diminishes the deterrent aspect of7 In that it deviates from the approach in Clifford v R [2011] NZCA 360, [2012] 1 NZLR 23 at [57]-[63].8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138].9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138].sentencing.10 Thirdly, such impairments can alter the effect of a term of imprisonmenton the individual offender, adding to its severity.11[17] It was said in Zhang that a discount of up to 30 per cent may be appropriate.However, this was not considered to be an absolute upper limit, and rehabilitativeoptions should be considered in sentencing offenders.12[18] It is therefore clear that if addiction is made out and the necessarily causal linkwith the offending is established, potentially quite substantial discounts might bemade, independent of a guilty plea.[19] In Zhang one of the defendants, Ms Crighton received a 30 per cent discountfor both mental health and addiction vulnerabilities.13 Ms Crighton had suffered abuseas a child, experienced abusive and violent intimate relationships, and suffered frompost-traumatic stress disorder and depression. She offended to pay for her own druguse, and a causative link between her methamphetamine use and offending wasevident. These findings were confirmed by a psychologist's report.14 The Courtdeclined to separate the mental health and addiction discounts because they wereclosely intertwined.[20] In Tuuta v R the defendant was charged with several offences, the leadingcharge being possession of methamphetamine for supply. The question of whetheraddiction could warrant a discount was discussed. The issue was the limited evidentialfoundation. The court pointed out that the onus was on the offender to establish theextent and effect of addiction to the civil standard of proof.15 The Court acknowledgedthere was some evidence in the pre-sentence report (which mentioned attendance at adrug course) and Mr Tuuta's criminal history, but was not persuaded it was enough towarrant a larger discrete discount than its general inclusion in a discount given forremorse and rehabilitation prospects.1610 At [138].11 At [138].12 At [149] and [150].13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [199].14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [199].15 Tuuta v R [2019] NZHC 2788 at [32].16 Tuuta v R [2019] NZHC 2788 at [32] and [33].[21] In Govender v R there was no independent evidence before the Court of theoffender's addiction. The Court held that the evidence provided, that is, self-reportedinformation in the pre-sentence report and a letter from the Salvation Army referencingproposed participation in their Bridge Programme (which ultimately never occurred),did not discharge the evidential burden of proof of addiction required.17 The Judgealluded to the fact that a clinical assessment of addiction such as a Community Alcoholand Other Drug Services (CADS) Report might have been more useful.18 A causativelink between the offending and addiction was also not evident.19 No discount foraddiction was given.20Is an addiction discount justified here?[22] For Ms Dunn to receive a discrete discount for her addiction, Zhang requires acausative link between the addiction and the offending, and persuasive evidence ofaddiction to a level that can discharge a civil burden.21[23] It would appear there is no issue with the addiction being causative ofMs Dunn's offending. Mr Sayes submits Ms Dunn only supplies methamphetamineto provide for her own drug usage. That was accepted by the police in their initialopposition to bail form. The District Court Judge appeared to have accepted thatproposition somewhat because she purported to include addiction in a combineddiscount. The Crown does not submit that addiction should not have been included inthe discount given by the District Court Judge at all, rather, at least in writtensubmissions, that the combined discount for the guilty plea and addiction wasadequate.[24] Both parties agree that addiction is present here and is causative of theoffending. As I have noted, the Police conceded the point in their bail opposition,where it is recorded that the appellant was a methamphetamine addict and expressedconcern that she would reoffend to feed her habit. I am satisfied this meets the civilstandard.17 Govender v R [2019] NZHC 3212 at [17] and [23].18 Govender v R [2019] NZHC 3212 at [17].19 Govender v R [2019] NZHC 3212 at [20] and [23].20 Govender v R [2019] NZHC 3212 at [23].21 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].What measure of addiction discount is appropriate?[25] The situation here is not so clear-cut as in Ms Crighton's case in Zhang.22There a 30 per cent discount was given, in very decisive circumstances. Ms Crighton'scase was, in my view, somewhat exceptional and resulted from the concatenation ofaddiction causing the offending with mental health concerns, and even partially adefence of compulsion. However, I accept a substantial discount is still neverthelessappropriate. It is clear on the evidence and accepted by the Judge, that Ms Dunn'slevel of addiction is severe. On the somewhat limited information available to theCourt, I consider that a 20 per cent discount is warranted.[26] That would bring the sentence down to one of 24 months.The Guilty Plea[27] There is no contest that the guilty plea was entered at the earliest reasonableoccasion and hence that a full 25 percent discount is appropriate.[28] The resulting final sentence would therefore be 18 months' imprisonment.Result[29] Adopting the Clifford approach makes a difference of four months'imprisonment. That is sufficient for a determination that the sentence under appealwas manifestly unjust when regard is had to the overall length of the sentence, and thefact that there was effectively no real discount for addiction.[30] The appeal is allowed and a sentence of 18 months' imprisonment issubstituted.___________________________________Gordon J22 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [199]