RUSIA v NEW ZEALAND POLICE [2022] NZHC 2171

RUSIA v NEW ZEALAND POLICE [2022] NZHC 2171 [30 August 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000225[2022] NZHC 2171BETWEEN LIONEL RUSIAAppellantAND NEW ZEALAND POLICERespondentHearing: 29 August 2022Appearances: C Bernhardt for AppellantL Lai for RespondentJudgment: 30 August 2022JUDGMENT OF VENNING JAppeal against sentenceThis judgment was delivered by me on 30 August 2022 at 10.00 am.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandPublic Defence Service, Auckland[1] On 29 June 2022 Judge J M Jelaš sentenced Lionel Rusia to 31 months'imprisonment.1 Mr Rusia appeals against the sentence. Mr Bernhardt submitted theJudge erred by:(a) taking an excessive starting point for the lead offence of possession ofthe Class B drug ephedrine for supply;(b) failing to give a sufficient reduction to reflect totality on the secondshotgun charge; and(c) failing to give sufficient credit for mitigating factors.[2] Overall the appellant's case is that the end sentence should have been less than24 months and the least restrictive sentence was one of home detention rather thanimprisonment. As an alternative, in his submissions in reply, Mr Bernhardt submittedthat even if the Court was not taken to the stage of accepting the sentence should havebeen less than 24 months then the sentence of 31 months was manifestly excessiveand should be reduced.Background[3] On 8 October 2020, Police searched the property where Mr Rusia was living.In the course of the search the Police located:(a) a black starter pistol;(b) 1.3 g of methamphetamine;(c) seven glass pipes commonly used in the consumption ofmethamphetamine;(d) eighty-six rounds of 12 gauge shotgun ammunition;1 NZ Police v Rusia [2022] NZDC 12052.(e) 92 g of ephedrine with a notebook containing information relating tothe price and weight of the product; and(f) 200 g of cannabis plant.[4] That led to charges of unlawful possession of a firearm and ammunition,possession of the class B drug ephedrine for supply, possession of the class C drugcannabis for supply, and possession of methamphetamine and pipe.[5] On 22 March 2022, while Mr Rusia was on bail for the above offending, thePolice executed a warrant issued for Mr Rusia's arrest. A search of the property wherehe was found led to discovery of cannabis leaf, and a shotgun cartridge. Subsequentlythe Police also located a Mossberg 88 shotgun. That led to a charge of unlawfulpossession of a firearm.[6] On 20 April 2022, some 18 months following the initial offending and onemonth following the subsequent offending in relation to the possession of theMossberg firearm, Mr Rusia pleaded guilty to all seven charges.The District Court sentencing[7] Judge Jelaš structured the sentence by taking the possession of the class B drugephedrine for supply as the lead charge. She took a starting point of 20 months forthat charge and then uplifted that by 14 months for the cannabis, firearms andammunition, and the minor methamphetamine all of which related to 8 October 2020.The Judge then reduced that aggregated starting point of 34 months by just over 20per cent for the late guilty plea and to give a small credit for rehabilitative steps takenby Mr Rusia.2[8] The Judge then considered an uplift of 14 months should apply to the March2022 offending, particularly as it was committed whilst on bail for the earlieroffending. Applying the full 25 per cent discount for the already guilty plea wouldlead to an uplift of 10 months, but having regard to totality she considered that an2 That would have taken the sentence to 27 months, although the Judge referred to it as beingadjusted to 28 months.uplift of five months was sufficient. On the Judge's calculation that led to an adjustedend sentence of 32 months.3[9] Ultimately the Judge structured the sentence by imposing a sentence of 26months on the charges of possession of the class B controlled drug ephedrine,possession of ammunition, and possession of the pistol. She imposed concurrentsentences of one month each on the possession of methamphetamine, glass pipe andthe cannabis charge. She then imposed a cumulative sentence of five months'imprisonment for the more recent charge of possession of the shotgun, which resultedin the total end sentence of 31 months' imprisonment.4[10] The Judge then remitted Mr Rusia's fines.The approach to the appeal[11] Section 250(2) of the Criminal Procedure Act 2011 confirms that the Courtmust allow the appeal if satisfied that if for any reason there was an error in thesentence and a different sentence should be imposed. Otherwise the Court mustdismiss the appeal. The focus is on whether the end sentence is within the availablerange rather than the process by which it is reached.Appellant's arguments[12] Mr Bernhardt submitted that, by reference to R v Wallace5 which must now beconsidered in light of the more recent Court of Appeal decision in Zhang v R,6 and thecase of R v Wilson,7 the starting point for class B offending of 20 months was too high.In Wilson the Judge had taken a starting point of 28 months for possession of 180 g ofpseudoephedrine. While Mr Bernhardt acknowledged that in his submissions in theDistrict Court he had suggested a starting point of 18 months he nevertheless submitted3 The discount from 14 months to 10 months was closer to 28 per cent rather than the 25 per centmaximum suggested by the Supreme Court in Hessell v R [2011] 1 NZLR 607.4 Again, on the Judge's earlier calculations, the total sentence would have been 27 plus five monthsor 32 months. The difference is in Mr Rusia's favour.5 R v Wallace [1999] 3 NZLR 159.6 Zhang v R [2019] NZCA 507.7 R v Wilson [2015] NZHC 706.that a starting point of closer to 15 months could have been available to the Judge forthe class B offending in this case.[13] Mr Bernhardt also submitted that Mr Rusia was only holding the ephedrine forothers and referred to the Judge's response to his submission as a fairly obliquesubmission. I do not consider the Judge's reference to the submission to be particularlyrelevant. The appellant had pleaded guilty to the charge of supply of ephedrine. Hewas in possession of in excess of 90 g and the drugs were found with a notebookrecording prices and weights. Even if, as Mr Rusia says, he was holding the drugs forothers he knew it was for the purposes of supply and was participating in and assistingthe others in relation to the supply. Sentencing is not a mathematical exercise. Giventhe quantity of the class B drug ephedrine in this case the starting point of 20 monthswas well open to the Judge.[14] Further, the uplift of 14 months for the remaining charges arising from the firstoccasion was also available. They included the serious charges of possession of apistol and ammunition, possession of cannabis for supply, and the less serious chargesof possession of methamphetamine.[15] Mr Bernhardt's next submission was that the Judge had erred in uplifting theadjusted starting point for the second charge by taking a starting point for it of 14months. I accept that, taken on its own, a starting point of 14 months for possessionof the firearm without more, and absent aggravating factors in relation to the firearm,would have been at the top end of the range for a starting point. However, in this casethere were aggravating features. In particular, the offending occurred whilst Mr Rusiawas on bail for previous offending. Further, that previous offending involved drugoffending which was itself associated with possession of a firearm and ammunition.In those circumstances again the 14 months was well open to the Judge. I also notethat by discounting it to 10 months for a guilty plea on that charge the Judge effectivelygave close to 28 per cent reduction.[16] Having regard to totality, the uplift by way of a cumulative sentence for thatMarch 2022 offending was orthodox and the ultimate uplift of only five months mightbe regarded as somewhat generous. As noted, Mr Bernhardt has had the advantage ofthe Judge's miscalculation in any event when the end sentence might otherwise havebeen 32 months as opposed to the 31 imposed by the Judge.[17] Mr Bernhardt next submitted that the Judge could have taken account ofmitigating factors. The Judge had rejected the submission for Mr Rusia that he shouldbe entitled to reductions for good character, remorse and the s 27 factors. As discussedwith Mr Bernhardt, I do not consider in this case Mr Rusia was entitled to a goodcharacter discount. He has previous offences, including for previous drug offending.Further, the offending in this case was not one-off offending. It involved multipleoffences on the first occasion and also subsequent offending whilst on bail. Mr Rusiais not entitled to a discount for good character.[18] Next, it was open to the Judge to reject the suggestion that Mr Rusiademonstrated true remorse as discussed by the Supreme Court in Hessell.8 Like theJudge I have read Mr Rusia's letter. It shows the possibility of some insight but it fallswell short of remorse that would support a reduction in sentence.[19] Finally, despite the matters raised by Mr Rusia's mother in her affidavit on hisbehalf, I agree with the Judge's assessment that in this case there is no nexus betweenMr Rusia's background and his offending. At the age of 41 Mr Rusia has hadsignificant advantages that others have not had. He has had and maintains the supportof his family, particularly his mother, and has had the advantages of both living withinhis own culture and also attending school in New Zealand in a supportive familybackground.[20] Standing back and looking at the matter overall the end sentence of 31 months'imprisonment for the offences that Mr Rusia committed in 2020 and March 2022, iswell within range.8 Hessell v R, above n 3.Result[21] The appeal is dismissed.__________________________Venning J