CULLEN v R [2022] NZCA 308

CULLEN v R [2022] NZCA 308 [12 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA673/2021[2022] NZCA 308BETWEEN QUENTIN JEREMIAH CULLENAppellantAND THE QUEENRespondentHearing: 15 February 2022Court: Kós P, Peters and Palmer JJCounsel: M J Taylor-Cyphers for AppellantB D Tantrum and S T L Teppett for RespondentJudgment: 12 July 2022 at 9 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed.C The sentence of eight years' imprisonment is quashed and a sentence of sixyears, six months' imprisonment substituted.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Mr Cullen, appeals against his sentence of eight years'imprisonment imposed by Judge Paul on 17 July 2020.1 The sentence was in respectof two charges of possession of methamphetamine for supply, and one charge each of1 R v Cullen [2020] NZDC 13985.possession of MDMA (or ecstasy) for supply, offering to supply methamphetamine,and conspiracy to supply methamphetamine.Extension of time[2] Mr Cullen's appeal is brought approximately 15 months out of time. It appearsthat Mr Cullen's notice of application for leave to appeal of 22 October 2021 wasprompted by his learning of the much lesser sentence imposed on Ms Renee Grace,his co-offender and partner at the time of the offending.2 There was little to distinguishMs Grace's offending from Mr Cullen's, yet her end sentence was substantially less atfive years, two months' imprisonment.[3] In any event, the Crown does not object to us granting the necessary extensionof time, and we do so.Sentencing[4] Prior to sentencing, Judge Glubb had given Mr Cullen, Ms Grace, and anotherco-offender, Mr McCrae, a sentence indication.[5] Judge Glubb's indication for Mr Cullen was a starting point of nine and a halfyears, plus an uplift of six months for Mr Cullen's prior relevant convictions. Thisbrought Mr Cullen's overall starting point to 10 years' imprisonment. The Judge saidthat any mitigating factors personal to Mr Cullen would have to await sentencing itself,but that he would grant Mr Cullen a 15 per cent reduction for guilty pleas if he acceptedthe indication.[6] At sentencing, Judge Paul retained Judge Glubb's starting point, uplift, and15 per cent reduction for guilty pleas. The Judge also deducted five per cent forMr Cullen's efforts to rehabilitate. This brought the end sentence to eight years'imprisonment.[7] Mr Cullen's counsel at sentence, Ms (now Judge) Pecotic, also soughtreductions for matters raised in two reports provided pursuant to s 27 of the Sentencing2 R v Grace [2021] NZDC 18200.Act 2002, and to reflect that Mr Cullen's offending was the result of his addiction tomethamphetamine.[8] The Judge declined reductions for these matters. On appeal, counsel forMr Cullen, Ms Taylor-Cyphers, submits that the Judge erred in doing so and thatdiscounts of 10 per cent for each should be allowed. Ms Taylor-Cyphers also submitsthat Mr Cullen ought to have received at least a 17 per cent discount for his guiltypleas. She also submits that some account should be taken of the disparity betweenMs Grace's end sentence and Mr Cullen's. The view we take of this appeal makes itunnecessary to address that aspect of Ms Taylor-Cyphers' submissions in any detail.[9] Crown counsel submits that the Judge was correct to decline any reduction inthe sentence for addiction and personal circumstances, and that no increase in thediscount for guilty pleas is warranted.Background[10] The charges against Mr Cullen and Ms Grace followed the execution of asearch warrant at their address in January 2018. In the course of the search policelocated more than 540 grams of methamphetamine, much of which was bagged incommercial quantities, ready for supply.[11] This quantity of methamphetamine placed Mr Cullen, and Ms Grace for thatmatter, in band four of the sentencing bands that this Court identified in Zhang v R,suggesting a starting point of 10 years or more.3 Thus there could be, and there is, nodispute as to the starting point the Judge adopted.[12] In the course of the search, the police also located more than 160 MDMA pills,and a search of Mr Cullen's cellphone yielded evidence of offers, and conspiracy, tosupply methamphetamine. The Crown submits that the nature of the offers suggestthat Mr Cullen and Ms Grace would have disposed of the methamphetamine in theirpossession for more than $100,000.3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [19].Mitigating factors[13] In Zhang, this Court identified considerations which might impair anoffender's otherwise rational choice to offend and thus diminish their moralculpability, this in turn justifying a reduction in sentence.4 Addiction causative ofoffending is one such consideration, and social, cultural, or economic deprivation thathas a demonstrative nexus with the offending is another.[14] Although this Court considered commercial dealing of methamphetamine islikely to be inconsistent with impairment of the ability to exercise rational choice, itdid not exclude that possibility.5 Since then, reductions in sentence have been grantedfor the reasons to which we have just referred, even though the quantities ofmethamphetamine involved have been on a commercial scale.6Reports[15] At sentencing the Judge had reports from Ms S Visser, a clinical psychologist,from Ms A Nielsen, a lawyer, and a PAC report from the Department of Corrections.Ms Visser interviewed Mr Cullen and his mother. The other two reports were basedsolely on interviews with Mr Cullen.[16] The relevant content of the reports may be summarised as follows.[17] Mr Cullen left home when he was 11 or 12 to escape a physically violent father,a matter confirmed by Mr Cullen's mother. He then lived with the family of a frienduntil 15 or 16, but also spent time in boys' homes from which he tended to abscond.[18] Mr Cullen reports that he was introduced to alcohol at about 11 or 12 years ofage, and to drugs at 16 — starting with cannabis, and progressing to MDMA andmethamphetamine. Mr Cullen's mother confirmed Mr Cullen's history of substanceaddiction.4 At [10], [92] and [159].5 At [147].6 To'a v R [2020] NZCA 187; Martin v R [2020] NZCA 318; Clark v R [2020] NZCA 641; andWratt v R [2021] NZCA 128.[19] Mr Cullen left school without formal qualifications, having been expelled forfighting, drinking, and using cannabis. Mr Cullen has, however, been employed forlong periods. These include approximately 10 years as a builder, seven years inanother business, and, prior to this offending, labouring. He had also started his ownproperty maintenance business prior to the relapse referred to in the next paragraph.[20] Mr Cullen, and again this is confirmed by his mother, reports a longstandingaddiction to methamphetamine, although he was drug free for 15 months after hisrelease on a sentence imposed in 2011. Mr Cullen reported that he relapsed aftermeeting Ms Grace and, he says, at her instigation.[21] Mr Cullen has been a regular offender since 1993 when he was aged 16. Hehas convictions for dishonesty and driving offences, possession of firearms andoffensive weapons, and for drug offending, and has served terms of imprisonment forthe supply of methamphetamine and possession of utensils.[22] Mr Cullen was remanded in custody on arrest for the current charges. Sincethen he has attended rehabilitation programmes, not entirely successfully but with anevident degree of commitment. Hence the Judge's five per cent discount.Judge's reasons[23] The Judge declined to give any discount for addiction and matters inMr Cullen's background because he was not satisfied that the necessary causalconnection with the offending was made out. It is clear from the Judge's notes that hewas influenced by the commercial nature of the offending.DiscussionAddiction[24] Zhang anticipates corroborating evidence of the fact of addiction and itseffect.7 In this case, there is sufficient evidence of addiction. Aside from Mr Cullen'sself-report, Mr Cullen's mother has confirmed his addiction; there is furthercorroboration in Mr Cullen's criminal history; in the various pipes and other7 At [148].substances located during the police search; and, as Ms Taylor-Cyphers submits, inMr Cullen's engagement with rehabilitative programmes.[25] As to a causal connection, we agree with the Judge that Mr Cullen andMs Grace would not have had that quantity of methamphetamine in their possessionsolely to pay for their own habits. However, that is not required. It is sufficient ifaddiction was "a" cause.8 We are satisfied that Mr Cullen would have been acting inpart to feed his addiction and in part for financial reward. One matter to whichMr Cullen referred in his discussion with Corrections was his inability ever to earnquite enough to meet his familial expenses as well as the costs of his addiction.[26] We have already referred to other instances in which this Court has allowed adiscount for addiction, despite the offender possessing or importing relativelysubstantial quantities of methamphetamine. To take an example, in Clark v R theDistrict Court had allowed Mr Clark a discount of 15 per cent to reflect the partialinfluence of his addiction on his offending.9 Although this Court declined to increasethe discount, it did not indicate it thought it excessive. In other cases, referred tobelow, this Court has given a combined discount, to reflect addiction and anothermitigating factor or factors.Personal circumstances[27] We are also persuaded that some reduction is required for the effects onMr Cullen of the matters referred to in [17] and [18] above. We accept that thosematters have affected the course of Mr Cullen's life, and in particular his propensityto offend. The only significant periods we have been able to identify in whichMr Cullen ceased to offend are when he has been in custody. That said, Mr Cullen hasnot been overwhelmed by his disadvantages. This is apparent from his maintainingemployment for lengthy periods. Mr Cullen's addiction has been a greater source ofhis offending.[28] Having concluded the necessary causal connections exist, the next issue is whatreduction is required. We have decided on a reduction of 15 per cent to reflect both8 Carr v R [2020] NZCA 357 at [64].9 Clark v R, above n 6, at [22].the contributing effect of Mr Cullen's addiction and the matters which havecontributed to Mr Cullen's longstanding propensity to offend. A combined discountis apposite in this case, as it is difficult to separate the effect of the two factors. Thiswas also the position in Wratt v R, in which the discount of 10.5 per cent reflected bothaddiction and ADHD, and Roulston v R, in which this Court's discount of 10 per centreflected addiction and personal circumstances.10 We note also that Judge Bergsengdid likewise in sentencing Ms Grace, allowing her a reduction of 15 per cent for thecombined effects of addiction, personal circumstances and a health issue.11Guilty pleas[29] Ms Taylor-Cyphers' submissions proceeded on the basis that Ms Gracereceived a discount of 15 per cent for her guilty pleas. This is incorrect. Ms Gracereceived a discount of 10 per cent.12 We decline as unjustified Ms Taylor-Cyphers'invitation to increase the discount for Mr Cullen's guilty pleas from 15 per cent to17 per cent.Parity[30] The additional discounts we have allowed Mr Cullen make it unnecessary toaddress Ms Taylor-Cyphers' further submissions regarding the apparent disparitybetween Ms Grace's end sentence and Mr Cullen's.Result[31] The application for an extension of time to appeal is granted.[32] The appeal against sentence is allowed.[33] We quash the concurrent sentences of eight years' imprisonment imposed onthe offences listed in [1] above, and substitute concurrent sentences of six years,six months' imprisonment.Solicitors:Crown Solicitor, Auckland for Respondent10 Wratt v R, above n 6, at [13]; and Roulston v R [2020] NZCA 255 at [42].11 R v Grace, above n 2, at [29].12 At [31].