SHAW v R [2016] NZCA 110

SHAW v R [2016] NZCA 110 [11 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA309/2015[2016] NZCA 110BETWEEN PETER MATTHEW SHAWAppellantAND THE QUEENRespondentHearing: 1 March 2016Court: Ellen France P, Keane and Dobson JJCounsel: V C Nisbet and N I Burt for AppellantM L Wong for RespondentJudgment: 11 April 2016 at 2.30 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed in part. The minimum period of imprisonment of five years and nine months is quashed.C The sentence of 11 years and five months' imprisonment remains.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] In December 2014, the appellant (Mr Shaw) pleaded guilty to: one charge of manufacturing methamphetamine; two charges of possession of methamphetamine for supply; one charge of supplying a class B controlled drug, namely ephedrine; one charge of forgery; and one charge of unlawful possession of a firearm.[2] In February 2015, Mr Shaw was sentenced in the High Court at Auckland by Woolford J to 11 years and five months' imprisonment. The Judge also imposed aminimum period of imprisonment (MPI) of 50 per cent of the total sentence.1[3] Mr Shaw has appealed against that sentence as manifestly excessive, and has also appealed against the imposition of the MPI. In oral argument, Mr Nisbet focused on the challenge to the MPI. The appeal was filed out of time so an extension of time to appeal is required. An extension was not opposed and is granted.The offending[4] Following a police surveillance operation, Mr Shaw was charged, in a single count, with manufacturing methamphetamine on three occasions between February and April 2014. The first manufacture produced 830 g of methamphetamine, the second produced an unknown amount and an estimated one kg was produced on the third occasion. Justice Woolford sentenced Mr Shaw on the premise that manufacture of a total of 1.83 kg could reasonably be verified.[5] With co-defendants, Mr Shaw was involved in relatively large-scale and moderately sophisticated manufacturing operations. He purchased key ingredients and tools, transported the items used and rented a number of storage facilities for storing items used in the manufacturing process. Mr Shaw was also the registered owner of a trailer that was used to store manufacturing equipment and cash close to town. The defendants also utilised a second trailer that was described in the summary of facts as a mobile methamphetamine laboratory.1 R v Shaw [2015] NZHC 238.[6] In one of the storage units rented by Mr Shaw's co-defendant Ms ShannonKay Stevens, the police discovered forged driver's licences containing photographsof Mr Shaw and Ms Stevens, which provided them with false identities. The forgery charge to which Mr Shaw pleaded guilty related to those documents.[7] A later search of a storage unit rented by Mr Shaw in Nelson revealed 100 g of methamphetamine and a shotgun.[8] Mr Shaw pleaded guilty at the earliest opportunity to all the charges he faced. At the time of his sentencing, his co-defendants were awaiting trial.[9] Subsequent to Mr Shaw's sentencing, Ms Stevens and another co-defendant pleaded guilty to similar charges. A third co-defendant has been convicted after trial. They have been sentenced to terms ranging from 16 years and five months' imprisonment to 12 years' imprisonment.2 In each case, MPIs of 50 per cent of the sentences were also imposed.[10] A further offender caught in the same police operation, Michael Joseph Cavanagh, was sentenced on lesser charges involving supply of a class B controlleddrug and money laundering. His sentence was five years and 10 months'imprisonment.3 Again, an MPI of 50 per cent was also imposed.Starting point[11] There could be no dispute that a starting point should be set within band four of the guidelines in R v Fatu.4 That provides for starting points between 13 years'and life imprisonment for large-scale commercial manufacture of methamphetamine, namely over 500 g. Justice Woolford acknowledged that where a particular starting point should be set within that band is not merely a mechanical exercise reflecting the quantity, but should in each case take into account the role of the offender and the nature of the manufacturing activity. The Judge adopted a starting point of 14 and a half years.2 R v Stevens [2015] NZHC 2336; R v O'Carroll [2015] NZHC 2404; R v Bowker [2015] NZHC 2903.3 R v Cavanagh [2015] NZHC 2494.4 R v Fatu [2006] 2 NZLR 72 (CA).[12] Counsel appearing for Mr Shaw at his sentencing characterised him as an important part of the operation and not merely a foot soldier, but not the ringleader of the group involved in the manufacture on a serious scale. That description is a fair one.[13] Although the starting point was challenged in written submissions in support of the appeal, Mr Nisbet did not press this aspect of the appeal in oral argument.[14] A starting point of 14 and a half years was certainly well within the range available to the Judge, given the amounts of methamphetamine, the relative sophistication of the manufacturing operation, and Mr Shaw's relatively important,but not leading, role in it.Uplift, discount and end sentence[15] The Judge acknowledged the concern of this Court that the presence of firearms is a serious aggravating feature in drug offending.5 Further, forgery ofdriver's licences and false identification documents were treated as "not insignificant".6 Their presence underscored the seriousness of the ongoing drug manufacturing operation and the level of planning in which Mr Shaw was involved. In addition, the offending included supply of ephedrine, a class B controlled drug that was used in manufacturing methamphetamine.[16] Mr Nisbet did not challenge the uplift of nine months for the other convictions. That uplift was also clearly within the appropriate range given the relative length of the initial starting point and the extent of the additional offending.[17] It was common ground that Mr Shaw's early guilty pleas justified a25 per cent discount as contemplated by the Supreme Court in Hessell v R.7Woolford J did not recognise any personal circumstances of Mr Shaw that would qualify as a mitigating circumstance to reduce the starting point. Consequently, the5 Citing R v Faifua CA287/05, 27 March 2006 at [26].6 R v Shaw, above n 1, at [46].7 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.25 per cent discount was applied to 15 years three months, giving the end sentence of 11 years and five months' imprisonment.Did personal circumstances render an MPI unnecessary?[18] On sentencing, Mr Shaw's counsel had not opposed the imposition of an MPIand acknowledged that an MPI of up to six years would be appropriate. Accordingly, the Judge decided on the MPI of 50 per cent of the end sentence without assessing all of the personal factors weighing against the need for an MPI, as now advanced on the appeal.[19] Mr Nisbet identified a number of significant mitigating circumstances in Mr Shaw's favour. Mr Nisbet's written submissions cited these in support of both alarger discount from the starting point, and in arguing that an MPI was unnecessary. In Mr Nisbet's oral submissions, his emphasis was on the challenge to thejustification for the MPI that had been imposed.[20] The Supreme Court observed in Jarden v R:8 As the Courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.[21] That comment was made in the context of an appeal against a three-year sentence of imprisonment for conspiracy to supply methamphetamine. The sentence was reduced from three years to two years and six months.[22] Factors cited in Mr Shaw's favour included: he had accepted responsibility for his offending by pleading guilty at the earliest possible opportunity, had co-operated with the police and not sought to blame anyone else;8 Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12]. all of Mr Shaw's conduct since he was arrested was consistent with genuine remorse, which should be given more credit than drug offenders who professed remorse after being found guilty at trial; although not free of prior convictions, Mr Shaw had never been imprisoned and had never been convicted for anything nearly as serious as the present convictions; his offending was motivated by his addiction and he had not made any substantial commercial gain from his involvement; at 25 years of age, he had a good work history, having regularly been in work, and has the ability and commitment to return to work; he was assessed at relatively low risk of reoffending, had the benefit of a positive pre-sentence report and the support of his family; he had the care of a mildly disabled child who was not his own, but had been left with him by the child's mother after his relationship with hercame to an end.[23] In emphasising the prospects of Mr Shaw's rehabilitation, Mr Nisbet submitted that he had undertaken a number of courses whilst on remand and shown a commitment to rid himself of his addiction. Those initiatives were curtailed once he became a sentenced prisoner because, he says, the length of time until he became eligible for parole excluded him from those who could be considered for courses to address drug addiction.[24] We accept that the personal features identified comprise a very strong set of mitigating circumstances when the relative seriousness of Mr Shaw's involvement inmethamphetamine manufacture is contrasted against the guideline in band four ofR v Fatu.9 Ordinarily, those involved to the extent Mr Shaw was in class A drug9 R v Fatu, above n 4.offending on this scale reflect a need for a substantially stronger deterrent than is required in this case.[25] The question is whether an MPI is necessary on the basis the prospect of release after one third of the length of his determinate sentence would be insufficient to hold Mr Shaw accountable for the harm caused, to denounce his conduct, to act as a personal or more general deterrent or to protect the community from him.10Mr Shaw's personal circumstances are sufficient to render an MPI unnecessary for the purpose of holding him accountable, or to deter him.[26] Consideration of any need to protect the community from the offender can involve assessment of the personal circumstances of the offender.11 A consideration of the range of circumstances raised by Mr Nisbet, in addition to the assessment that he is at relatively low risk of reoffending, tell against the need for an MPI in his case.[27] The remaining consideration is whether the absence of an MPI for offending as serious as Mr Shaw's would send an inadequate deterrent signal to others.Mr Nisbet emphasised that eligibility for parole provided no assurance of release at that date, and that Mr Shaw would still have to persuade the Parole Board that release was appropriate. He also acknowledged that sentences for such offendingabove nine or 10 years' imprisonment tend to attract an MPI as the norm.12[28] The sentence of 11 years and five months' imprisonment is inarguably withinrange and complies with the requirement for a deterrent signal to be sent to others. The absence of the additional deterrent of imposing an MPI is justified by the unusual combination of personal circumstances that count against any need for an MPI to be imposed.[29] The deterrent signal to others is maintained because the mitigating circumstances we have recognised are unusual for an offender convicted of this level of serious class A drug offending. A balanced assessment of Mr Shaw's personal10 Sentencing Act 2002, s 86(2).11 Fleming v R [2011] NZCA 646 at [22].12 See review of cases in R v Anslow CA182/05, 25 October 2005. MPIs were seldom imposed on sentences of less than nine years' imprisonment, but commonly imposed on longer sentences.circumstances and his entitlement to rehabilitation means the circumstances requiring the imposition of an MPI are not made out.[30] We have had regard to the uniform imposition of MPIs of 50 per cent for each of Mr Shaw's co-defendants. As we understand it, it seems unlikely that any issues of disparity vis-à-vis Mr Shaw will be advanced.Result[31] We accordingly uphold the determinate sentence of 11 years and five months'imprisonment, but allow the appeal against the imposition of an MPI of five years and nine months. That component of the sentence is quashed.[32] We grant the application for an extension of time to appeal.Solicitors:Crown Law Office, Wellington for Respondent