IRWIN v R [2020] NZCA 181

IRWIN v R [2020] NZCA 181 [26 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA161/2020[2020] NZCA 181BETWEEN MICHAELA PATRICIA IRWINAppellantAND THE QUEENRespondentHearing: 13 May 2020Court: Collins, Duffy and Edwards JJCounsel: S J Lance for the AppellantJ M Irwin for the RespondentJudgment: 26 May 2020 at 10.00 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal against sentence is allowed.C The sentence of 2 years, 2 months' imprisonment is quashed. A sentenceof 1 year, 10 months' imprisonment is substituted, with a specialpost-release condition requiring the appellant to attend and participate inany departmental programme that her probation officer may direct. Thatcondition shall expire 6 months after the sentence expiry date.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] On 22 November 2019, the appellant was found guilty of three charges ofpossession of methamphetamine for supply. She was sentenced by Judge Cathcart inthe District Court at Gisborne to 2 years, 2 months' imprisonment.1[2] That sentence was reached by adopting a starting point of 2 years, 8 months'imprisonment, uplifted by 1 month for a prior conviction, and discounted by 7 monthsfor time spent on restrictive bail.[3] The appellant appeals from that sentence on the basis that the starting pointwas too high, the discounts for personal mitigating features were too low, and theend-sentence should have been one of home detention.[4] The appeal was filed three days out of time. The delay is short and has beenadequately explained. We grant the necessary extension.The offending[5] The appellant's offending was uncovered as part of a police operation targetingmethamphetamine dealing in Gisborne in 2017 and early 2018. The appellant obtainedmethamphetamine from the principal offender within the targeted network.[6] The three charges on which the appellant was found guilty arose out ofoffending on 23 May 2017, 25 May 2017 and 27 September 2017. The quantities ofmethamphetamine involved were one, 29 and 28 grams respectively, making a total of58 grams.The starting point[7] The appellant challenges the starting point of 2 years, 8 months' imprisonmentadopted by the Judge. Counsel for the appellant submits that the Judge did not give1 R v Campbell [2020] NZDC 3286.adequate weight to the appellant's limited role in the offending, and the starting pointshould have been 2 years, 6 months' imprisonment.[8] We do not see any error in the Judge's approach. The starting point was set byreference to the guideline judgment in Zhang v R.2 The Judge made specific mentionof the need to ensure that sentencing achieved justice in individual cases, and the newemphasis on role in assessing culpability.3[9] The quantity of the methamphetamine placed the offending at the lower end ofband two of Zhang which applies to quantities between five and 250 grams. That bandattracts starting points of between 2 and 9 years' imprisonment.[10] As to the appellant's role, the Judge found:[37] In my view Ms Irwin was nothing more than an intermediary inrelation to these three transactions. And there is no evidence she onsold anyof the methamphetamine herself. Nor is there any evidence from which I caninfer she benefitted financially. She may well have been doing it underdirection of Mr Campbell and even others. I accept that she performed alimited function under direction; with little or no actual financial gain, hadlittle influence on events above the chain of command. However, I do notaccept she had no awareness of the scale of the operation in the context of thethree charges in which the jury returned guilty verdicts. She must have hadsufficient awareness of the scale of the operation particularly given thequantum involved in charges 13 and 37.[11] This also put the appellant's offending towards the lower end of band two. Itwas not at the very bottom given the Judge's finding that the appellant must have hadsome awareness of the scale of the operation given the quantity of methamphetaminethe subject of two of the charges (28 grams and 29 grams respectively). We agree withthe Judge's conclusions in that respect.[12] The starting point also had relativity to the starting points adopted by theappellant's co-offenders. A starting point of 18 years' imprisonment was adopted forthe lead offender, and 5 years, 6 months for the co-offender sentenced at the same timeas the appellant. The Judge was well placed to assess the various roles of each2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.3 R v Campbell, above n 1, at [3]–[4] and [8].defendant and adopt relative starting points accordingly given that he was thepresiding Judge at trial.[13] In addition, we accept the Crown's submission that the starting point wasconsonant with the starting point adopted by this Court for Ms Crighton, one ofthe appellants in Zhang. The quantity involved in that case was 3.75 grams, and therole played by Ms Crighton was even less significant than the role played by theappellant in this case. This Court considered a starting point of 2 years' imprisonmentwas appropriate.4[14] In sum, there is no basis to find that the starting point of 2 years, 8 months'imprisonment was out of range.Adjustments for personal factors[15] The Judge applied an uplift of 1 month's imprisonment for the appellant's onlyprior conviction for supply of methamphetamine from 2016. That offending involvedthe appellant being directed by her father, a patched member of the Mongrel Mob, togo inside their home and fetch a one-gram bag of methamphetamine for delivery toan undercover police officer. The appellant did what she was told. She was sentencedto 6 months' community detention for that offending.[16] Section 9(1)(j) of the Sentencing Act 2002 requires a court to take into accountthe number, seriousness, date, relevance, and nature of any previous convictions insentencing an offender. In Orchard v R, this Court said that previous convictions arerelevant "as an indicator of character and culpability, or because they show the needfor a greater deterrent response, or as an indicator of risk of reoffending".5 The Courtstressed the need for any uplift to be proportionate to the sentence imposed forthe original offence, noting that an uplift is unlikely to be proportionate if it exceedsthe prior sentence.64 Zhang v R, above n 2, at [198].5 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [39].6 At [41].[17] The Judge in this case was alive to the need to ensure that the uplift wasproportionate. On that basis, he rejected the Crown's proposed 3-month uplift, andadopted defence counsel's suggestion of a 1-month uplift.7[18] Nevertheless, we consider that even that modest uplift risks punishing theappellant twice for offending already sentenced and served. The appellant did nothave any other convictions, whether drug-related or at all. The circumstances of theprior offending reduced the relevance of the conviction to the sentencing exercise. Itadded little to what was already known about the character and culpability ofthe appellant, the risk of re-offending or the need for a deterrent response. In that light,we consider the 1-month uplift was disproportionate to the 6 months' communitydetention sentence imposed, and an uplift should not have been applied at all.[19] The appellant also challenges the discounts the Judge applied for personalmitigating factors. She says that the 7-month discount applied by the Judge for timespent on EM bail and bail simpliciter was too low. We disagree. The discount appliedby the Judge was just over half the time spent on bail and represented a fair discountfor the restrictions placed on the appellant at the time.[20] The appellant also says that a discount should have been applied forthe 7 months spent in custody prior to sentence. This appeal ground was not pressedat the hearing. Nor should it have been given that s 82 of the Sentencing Act expresslyprohibits a sentencing court taking into account any period of pre-sentence detention.That section provides a complete answer to this ground of appeal.[21] However, we consider the Judge did fall into error in failing to assess whetherthe appellant's other personal circumstances warranted a further discount. Althoughthe Judge had regard to the matters canvassed in the pre-sentence report, he only didso with respect to whether a sentence of home detention should be imposed.8 He didnot turn his mind to whether those matters, and in particular the appellant'srehabilitative prospects, warranted a further discount.7 R v Campbell, above n 1, at [63].8 At [67].[22] We consider a further discount was warranted. At the time of the offending,the appellant was 21 years old and was the primary caregiver of her sister's twochildren. Although there were negative social influences in the appellant's life, therewas also pro-social influences and wider family support. That included an offer toreconnect the appellant with her home marae and to assist with her rehabilitativeneeds. The appellant had previously been in steady employment and there was noevidence of substance addiction.[23] In addition, the appellant had shown some insight into her offending in thesense that she acknowledged negative influences as contributing to heroffending-related behaviour. She had also expressed a willingness to participate in arehabilitative programme. That was important because the pre-sentence report writerconsidered that her risk of re-offending was likely to reduce if she completed adepartmental programme.[24] All those factors taken together signal good rehabilitative prospects for theappellant. We consider those prospects called for a further discount of approximately3 months' imprisonment from the starting point in this case. That discount, takentogether with removal of the uplift for her prior conviction, reduces the sentence by4 months' imprisonment, and results in an end sentence of 1 year, 10 months'imprisonment. It follows that the sentence of 2 years, 2 months' imprisonment ismanifestly excessive and must be set aside.[25] The sentence we intend to impose is a sentence of short duration. We haveturned our minds to whether the sentence should be commuted to home detention.We have concluded that it should not. That is because the appellant must be releasedon serving half of the sentence imposed on appeal.9 Given the time she has alreadyserved (including time spent on pre-sentence detention), any sentence of homedetention could only be of limited duration.[26] A limited sentence of home detention will give insufficient time to completerehabilitative programmes. Due to the Covid-19 situation, the appellant has not hadan opportunity to complete any departmental programmes whilst in custody. As9 Parole Act 2002, s 86(1).already noted, the completion of these programmes is integral to reducing the risk ofre-offending. Taking all these factors into account, we consider a short sentence ofimprisonment with a special post-release condition requiring the appellant toparticipate in any departmental programme directed by her probation officer isthe sentence which best meets the principles and purposes of sentencing and isthe least restrictive sentence in the circumstances.Result[27] The application for an extension of time is granted.[28] The appeal against sentence is allowed.[29] The sentence of 2 years, 2 months' imprisonment is quashed, and a sentence of1 year, 10 months' imprisonment is substituted with a special post-release conditionrequiring the appellant to attend and participate in any departmental programme thather probation officer may direct. That condition shall expire 6 months after thesentence expiry date.Solicitors:Crown Law Office, Wellington for Respondent