TREGOWETH v R [2021] NZCA 311

TREGOWETH v R [2021] NZCA 311 [25 June 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA231/2021[2021] NZCA 311BETWEEN PETER JAMES TREGOWETHAppellantAND THE QUEENRespondentHearing: 23 June 2021Court: French, Thomas and Muir JJCounsel: O S Winter and G M Stone for Appellant M H Cooke for RespondentJudgment: 25 June 2021 at 11 amReasons: 12 July 2021JUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of two years and three months' imprisonment is quashed and substituted by a sentence of two years' imprisonment.C The following special release conditions are imposed:(i) The appellant is not to possess, consume or use any alcohol or drugs not prescribed to him.(ii) The appellant is to attend an assessment for alcohol and drug counselling, including an assessment for residential alcohol and drug treatment, as directed by his Probation Officer. He is to attend and complete any counselling, treatment or programme as recommendedby the assessment or assessments as directed by and to the satisfaction of his Probation Officer.(iii) The appellant is to undertake and complete any other appropriate assessment, treatment and/or counselling as directed by and to the satisfaction of his Probation Officer.D The standard and special release conditions expire six months after the sentence expiry date.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)Introduction[1] When Peter Tregoweth was stopped, searched, and processed by the police, he was found to be in possession of a total of 5.8 grams of methamphetamine. However, a further 37.3 grams was found on him when he was in his prison cell. The Crown accepted that Mr Tregoweth had not intended to take the methamphetamine into prison, but rather that he had been arrested and had no way to dispose of it. Despite this, when Mr Tregoweth was being sentenced on three charges of possession of methamphetamine for supply, the Judge uplifted the starting point by three months, treating Mr Tregoweth's introduction of methamphetamine into the prison as an aggravating feature.[2] In a results judgment issued on 25 June 2021, we have allowed Mr Tregoweth's appeal against his sentence of two years and three months' imprisonment and substituted a sentence of two years' imprisonment. 1 We now give our reasons.1 Tregoweth v R [2021] NZCA 276.BackgroundFactual background[3] At around 12.15 am on Tuesday 24 December 2019, Mr Tregoweth was stopped by a police patrol after a brief chase, first in his car and then on foot. The police searched Mr Tregoweth and found 2.8 grams of methamphetamine in his pocket. A search of his car revealed a number of weapons, some cannabis, a bong and methamphetamine pipe, four tabs of LSD and $5,680 in cash.[4] After a brief court appearance that morning, Mr Tregoweth was taken to Manawatū prison. A further three grams of methamphetamine was found on him during a strip search. The following day, a Department of Corrections officer noticed a sweet chemical smell coming from Mr Tregoweth's cell. When Corrections officers entered the cell, Mr Tregoweth threw a glass methamphetamine pipe on the floor. Mr Tregoweth was searched again, and found to have 37.3 grams of methamphetamine on his person.[5] Mr Tregoweth was found guilty by a jury of three charges of possession of methamphetamine for supply, one charge for each amount separately discovered by the police. The Crown offered no evidence on a further charge alleging he brought methamphetamine and a glass pipe into a prison intending that they should come into the possession of a prisoner.2 That charge was then dismissed. 3District Court decision[6] In her sentencing decision, Judge Edwards discussed the need to balance denunciation and deterrence against the need to assist Mr Tregoweth's rehabilitation from his long-term addiction to methamphetamine and impose the least restrictive outcome. 42 Corrections Act 2004, s 141(1)(a) (maximum penalty of three months' imprisonment or a fine of $5,000, or both).3 Criminal Procedure Act 2011, s 147.4 R v Tregoweth [2021] NZDC 7568, at [5].[7] Applying Zhang v R, the Judge placed Mr Tregoweth's offending at the lower end of band two (with a starting point range of between two to nine years' imprisonment). 5 The Crown had submitted the appropriate starting point was two and a half years' imprisonment, taking into account Mr Tregoweth's role in supplying methamphetamine and that he was involved in dealing, in part, to fund his own addiction. The defence adopted the same approach. While the Judge accepted Mr Tregoweth's addiction and limited role, she noted that Mr Tregoweth had "introduced a significant amount of methamphetamine into the prison environment".6She acknowledged that Mr Tregoweth had been in a situation where he could not have been expected to make a reasoned decision as to what to do with the methamphetamine when arrested. However, she said: 7 from this position on the bench we frequently hear about the difficulties those addicted to methamphetamine face in battling their addiction, even in prison, because it is so readily available despite the Department of Corrections' efforts to keep it out of the prison. When the methamphetamine was discovered, you had been placed in a part of the prison where you had no contact with other prisoners. Had you not been caught, that placement may not have continued and then you would have been in the position of having that significant amount of methamphetamine inside a prison wing. Despite any wish on your part to keep it all to yourself, that may not have been practical or realistic.[8] The Judge said she had intended to increase the starting point by six months in light of this aggravating factor but was persuaded by defence counsel to limit the uplift to three months. Three months' imprisonment was the maximum custodial penalty for the offence of bringing an unauthorised item into a prison under the Corrections Act 2004. 8 This brought the overall starting point to two years and nine months' imprisonment.9[9] The Judge then turned to mitigating features, and, after discussing the s 27 report, noted that there were two key factors which warranted a significant allowance in sentencing. First, Mr Tregoweth wanted to address his methamphetamine addiction. Secondly, Mr Tregoweth had decided to leave the gang5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].6 R v Tregoweth, above n 4, at [10].7 At [11].8 Section 141(1)(a).9 R v Tregoweth, above n 4, at [12].he was a patched member of in late 2019, despite being involved in it from a young age. The Judge recognised that this would have been a difficult decision, and involved the loss of benefits such as friendship, income, stability and social status.[10] As a result, the Judge applied a discount of 20 per cent, resulting in an end sentence of two years and three months' imprisonment.10Arguments on appealThe appellant[11] In Mr Winter's submission for Mr Tregoweth, the three month uplift for introducing an unlawful item into a prison was unjustified and resulted in the end sentence being manifestly excessive. He distinguished other cases which involved the supply of drugs and/or methamphetamine within prisons on the basis that Mr Tregoweth never intended to take the methamphetamine into a prison and there was no evidence he had attempted to supply it to others in prison.The respondent[12] Ms Cooke, for the Crown, contended that the starting point was in range, taking into account the quantity of methamphetamine and Mr Tregoweth's role. She accepted that Mr Tregoweth was likely selling methamphetamine in part to fund his own habit. She acknowledged that at sentencing the Crown had not characterised Mr Tregoweth's introduction of methamphetamine into prison as an aggravating feature, and had not sought an uplift in this regard. Ms Cooke agreed that, in the circumstances, it was understandable Mr Tregoweth did not hand over the methamphetamine.[13] In Ms Cooke's submission, the three month uplift and resulting sentence was stern but within range. Very fairly, she conceded that there were difficulties with the Judge's approach.10 At [19].Analysis[14] The sole issue is whether there was an error in the Judge's approach with the result that a different sentence should be imposed.[15] We are satisfied that is the case and can state our reasons succinctly.[16] The additional methamphetamine was discovered on Mr Tregoweth when he was in custody on remand. He was not convicted of the charge of bringing an unauthorised item into a prison. The Crown had offered no evidence on that charge and understandably so. It was accepted that Mr Tregoweth had not made a conscious decision to smuggle the methamphetamine into the prison. In those circumstances, it was wrong in principle to impose an uplift for the fact he had the methamphetamine in his possession in prison. While the uplift might be considered relatively minimal and was subject to discounts for mitigating factors, the approach meant that the resulting sentence was manifestly unjust and should be quashed.[17] The agreed starting point for the three charges on which Mr Tregoweth was convicted was two and a half years' imprisonment. From that we deduct the same discount as taken by the Judge, 20 per cent, resulting in a new end sentence of two years' imprisonment. As this is a short sentence of imprisonment, we impose special release conditions to address Mr Tregoweth's addiction issues.Outcome[18] The appeal is allowed. The sentence of two years and three months' imprisonment was quashed and substituted by a sentence of two years' imprisonment.[19] The following special release conditions are imposed:(a) Mr Tregoweth is not to possess, consume or use any alcohol or drugs not prescribed to him.(b) Mr Tregoweth is to attend an assessment for alcohol and drug counselling, including an assessment for residential alcohol and drug treatment, as directed by his Probation Officer. He is to attend and complete any counselling, treatment or programme as recommended by the assessment or assessments as directed by and to the satisfaction of his Probation Officer.(c) Mr Tregoweth is to undertake and complete any other appropriate assessment, treatment and/or counselling as directed by and to the satisfaction of his Probation Officer.[20] The standard and special release conditions are to expire six months after the sentence expiry date.Solicitors:WinterWoods, Palmerston North for AppellantCrown Law Office, Wellington for Respondent