WHALE v R [2020] NZHC 3469

WHALE v R [2020] NZHC 3469 [21 December 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-000123[2020] NZHC 3469BETWEEN QUINTIN BRETT WHALEAppellantAND THE QUEENRespondentHearing: 14 December 2020(Heard at Tauranga)Appearances: Craig Tuck and Thomas Harre for the AppellantJustine Sutton for the RespondentJudgment: 21 December 2020JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 21 December 2020 at 12:30 pm.Registrar/ Deputy RegistrarDate:Introduction[1] Mr Whale pleaded guilty to one charge of possessing methamphetamine forsupply.1 Judge P G Mabey in the Tauranga District Court on 16 September 2020sentenced him to seven years' imprisonment.2[2] He now appeals that sentence on the sole ground that the Judge failed to takeinto account Mr Whale's addiction as a mitigating factor.The offending[3] On 27 March 2019, the Police executed a search warrant at Mr Whale'saddress. Located in a locked tool cabinet was approximately 915 grams ofmethamphetamine packaged into 33 self-sealing shrink-wrapped bags. Mr Whale wasthe only person with a key to this cabinet. Stored with the methamphetamine wereelectronic scales, shrink wrap, a shrink-wrap sealing machine and $3,200 in cash.[4] Also found at Mr Whale's home were ingredients connected to manufacture.Mr Whale has been charged with offences relating to this aspect and is defending them.Previous criminal history[5] Mr Whale is 41 years' old. He has nine previous convictions, none of whichrelates to methamphetamine or serious offending. These include possession of anoffensive weapon (x 2), breaching community work, breaching a liquor ban (x 2),receiving stolen property (x 2), theft of a motor vehicle and possession of cannabis.Reports[6] The PAC report, prepared on 25 June 2020, records Mr Whale as saying hestarted using methamphetamine in 2018. This eventually reached the point where hewas using 4 to 5 grams per day. He admitted that he started selling methamphetamineto friends. He said this was only to cover his costs. He was adamant that he was notin possession of the methamphetamine for supply. He claims he was looking after it1 Misuse of Drugs Act 1975, ss 6(1) and (f). Maximum penalty is life imprisonment.2 R v Whale [2020] NZDC 19043.for an associate and believed he was "set up". The report writer described Mr Whaleas a "business minded individual" and given the potential revenue that may be madeselling and distributing methamphetamine, his risk of reoffending in a similar way wasassessed as medium. The report writer discussed his background, noting that he hada difficult childhood. He was adopted into a turbulent family environment. By 2018,both he and his wife were using methamphetamine daily. He regretted the effect thishad on his children. He told the report writer that he was in a new relationship withsomeone he met at the Hamner Clinic. She confirmed to the writer that she offers herfull support.District Court decisionSentence indication[7] On 11 November 2019 Judge I D R Cameron in the Tauranga District Courtgave Mr Whale a sentence indication with a 10 year starting point.3 The Judgeconsidered Mr Whale had played a significant role in the offending and left open thepossibility of discounts being applied for further mitigating factors raised atsentencing.[8] This indication was rejected by Mr Whale. Mr Whale then attempted to seeka further sentence indication from Judge P G Mabey on 18 May 2020. He properlydeclined to give one. He noted that should Mr Whale come before him for plea orsentence, he would adopt the indication given by Judge Cameron. Following thisMr Whale entered a guilty plea in June 2020.Sentencing[9] Judge Mabey referred back to the sentence indication and, as he had promised,set a 10 year starting point.[10] In regard to mitigating factors, the Judge considered Mr Whale's remorse,addiction and cultural background. He examined the s 27 report, a psychologicalreport and a letter written by Mr Whale expressing his remorse which I, too, have read.3 R v Whale DC Tauranga CRI-2019-070-001421, 11 November 2019.[11] The Judge noted that Mr Whale's statements to the PAC report writer,effectively denying his offending, were at odds with his letter of remorse. His letterreferred to attending 11 to12 sessions at the Hamner Clinic for his addiction, but whenthe Crown checked this it was found that Mr Whale had exited the course. The Judgeconsidered that Mr Whale's remorse was not genuine because of his inconsistentstatements. He thus declined to give him credit for this factor.[12] As for addiction, the Judge considered that the supporting evidence wasentirely based on Mr Whale's own reports. The Judge noted the Court of Appeal'sobservations in Zhang v R that discounts for addiction must be based on persuasiveinformation.4 The Judge noted that Mr Whale had worked successfully as a mechanicin Australia for 10 years before returning to New Zealand to have closer contact withhis children. He invested the funds from the sale of his Australian home in a failedventure. He claims he took to drugs, particularly methamphetamine, as a form of self-medication to deal with the trauma of his financial loss and his feelings of inadequacyin not being able to care for his family. The Judge accepted that "once [Mr Whale]got on the methamphetamine train it was hard to get off" and that he may well havedeveloped a dependency. However, linking that to his offending was "a differentmatter".[13] Mr Whale's offending was clearly indicative of commercial trading withoutany suggestion of personal use. The Judge determined that even accepting Mr Whalewas a user at the time, the offending reflected determined and premeditatedcommercial drug activity involving a large quantity of methamphetamine. It waspackaged in such a way it was clearly for market and for commercial gain. The Judgeconsidered Mr Whale was someone who dealt in drugs to make money and, in theparticular circumstances, a lot of money. He did not accept that addiction played asignificant part in the offending.[14] As for the factors outlined in the s 27 report, the Judge accepted that Mr Whalehad experienced a rough upbringing and to his considerable credit was able toovercome those adversities after leaving school. However, the Judge considered that4 Zhang v R [2019] NZCA 507 at [147].had he not lost his money on returning from Australia, Mr Whale would still be doingwell. He concluded that the only real interpretation available was that the offendingwas purely commercial; there was no link between the matters recorded in the s 27report and the offending.[15] A 20 per cent discount was given for the guilty plea and a further 10 per centto acknowledge that Mr Whale "may well be expressing a genuine desire to be drugfree when [he] can be and giving some recognition for the possibility that when [hesays he has] seen the light then [he has]". The end sentence came to seven years'imprisonment.Approach to appeal[16] I must allow the appeal against sentence if I am satisfied that there has been anerror in the sentence imposed for any reason and that a different sentence should beimposed.5 The focus is on the sentence imposed, rather than the process by which itis reached.6 Although the sentence does not need to be "manifestly excessive", this isa helpful concept when considering the seriousness of the error.7SubmissionsAppellant[17] Mr Harre, for Mr Whale, who carried the oral argument before me, submitsthat the Judge incorrectly took the view that because Mr Whale was being sentencedfor commercial scale offending, evidence of his addiction was not relevant. Aninference was available on the evidence that Mr Whale's ability to exercise rationalchoice was materially diminished by his addiction.5 Criminal Procedure Act 2011, s 250.6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 At [35].[18] He referred to the following cases where a discount was given for addiction:(a) In Roberts v R, the appellant had manufactured up to 42 grams ofmethamphetamine.8 Woolford J found that he played a significant rolein the manufacture, but noted that he was paying a debt and had facedviolence and pressure when he sought to leave the operation. WoolfordJ held that the appellant was to be commended for his efforts to tacklehis addiction as demonstrated by the reports provided by his counsel.There was evidence that he took methamphetamine from each batch hemanufactured for his own use. A 15 per cent discount was given for theappellant's causative addition and his ADHD.9(b) In Roulston v R the appellant was a small-time commercialmanufacturer and an addict who manufactured methamphetamine tosupport his habit.10 The quantity was 113 grams. His addiction wasevidenced by his PAC report assessment, and his Police interviewproceeded on the basis that he could not financially support his drughabit without resorting to manufacturing. This was balanced againstthe commercial features of the offending. A 10 per cent discount wasgiven for his addiction.11[19] Mr Harre also refers, in contrast, to cases where the Court has not given adiscount for addiction:(a) In Parkes v R, the offending involved at least 563.8 grams ofmethamphetamine.12 The Court of Appeal accepted that he wasaddicted to methamphetamine and had taken constructive steps towardsaddressing the underlying causes of his addiction. However, it was notaccepted that the commercial drug offending engaged in by Mr Parkeswas caused by his addiction. No discount was given.8 Roberts v R [2019] NZHC 3319.9 At [36].10 Roulston v R [2020] NZCA 255.11 At [42].12 Parkes v R [2020] NZCA 203 at [59].(b) In Whiteford v R, the quantity of methamphetamine was 53 grams.13 Itwas accepted that Mr Whiteford was addicted during the period ofoffending. However, it was held it was a commercial operationmotivated by profit, rather than addiction, and that it was not a case inwhich deterrence could be discounted because treatment would addressthe risk of reoffending.14(c) In Brown v Police (a cannabis case) the Court found that the offendingwas a sophisticated operation pursued by Mr Brown primarily forfinancial gain, and that therefore no discrete discount for addiction wasjustified.15[20] Mr Harre submits that the Judge was wrong to describe the offending as a"determined and premeditated commercial drug dealing activity". He says there wasno evidence (nor allegation) of actual supply by Mr Whale. There was no evidence ofprofit expected by Mr Whale. On the facts, Mr Whale was simply in possession of arelatively large quantity of methamphetamine.[21] Mr Harre notes that what is required to show addiction, varies from case tocase. He notes that in Govender v R, the Court considered that uncorroborated self-reported information in the PAC report and a letter from the Salvation Armyreferencing proposed participation in the Bridge Programme did not discharge therequired evidential burden of proof of addiction.16[22] Mr Harre then submits that the issue of causation and addiction followingZhang is unresolved and asks whether the relationship between addiction andoffending should be assessed in terms of a "but for", or "material contribution" viewof causation. He invites the Court to approach the matter in terms of a "materialcontribution" assessment and submits that there was ample evidence before the Court13 Whiteford v R [2020] NZCA 130.14 At [27].15 Brown v Police [2019] NZHC 3365 at [32].16 Govender v R [2019] NZHC 3212 at [17]. Mr Tuck submissions also refers to the 'contrasting'point in Dunn v Police [2020] NZHC 316 but that case reiterates the same requirement.that Mr Whale's addiction materially diminished his ability to make rational choicesabout his involvement in the wider commercial operation.[23] Mr Harre proposes that a 10 per cent discrete discount should have beenavailable.Respondent[24] Ms Sutton, for the Crown, submits that the correct starting point was adoptedunder Zhang.[25] She also submits that Mr Whale received adequate credits. She points out thatthe 20 per cent guilty plea discount was generous. The Crown assumed responsibilityfor the prosecution in April 2019. In November 2019, Mr Whale rejected a sentenceindication. A guilty plea was entered (to the same charge and summary of facts thathe sought a sentence indication on in November 2019) in June 2020, some sevenmonths later. She submits that no discount should have been given for addictionbecause there was no supporting evidence of his addiction and no material from whichto infer that there was a connection between Mr Whale's addiction and offending. Shealso submits that Mr Whale's personal background did not warrant a discount.Discussion[26] To determine whether the overall sentence is appropriate, it is necessary toconsider the starting point and discounts set by the Judge.Starting point[27] Mr Whale's offending fits well within Zhang's band four: amounts of between501 grams and 2 kilograms attracting a starting point of between eight and 16 years'imprisonment.1717 Zhang v R, above n 4, at [125].[28] I have considered the starting point set in other similar cases:(a) In Miller v R, the quantity was 905 grams.18 Mr Miller had anoperational role in the offending and was substantially motivated byprofit. The starting point of 11 years and six months was held to beappropriate on appeal.(b) In Moses v R, the quantity was 965 grams.19 The appellant was assessedas having a moderate role; more than a retail dealer and her involvementwas motivated by financial gain, rather than her addiction. The startingpoint of 11 and a half years' imprisonment was upheld on appeal.(c) In Martin v R, the offender was running a solo operation for commercialgain.20 The quantity was 600 grams. It was held that he fell into themiddle of band four and the starting point was set at 12 years'imprisonment.[29] On that analysis it can be seen that the 10 year starting point adopted by theJudge was generous. Given Mr Whale's role he fits either in the lower, "leading" levelor the higher, "significant" level. Either way, the starting point could easily have beenup to two years greater than that set.Addiction[30] Addiction may be a mitigating factor where there is a causal link betweenoffending and the offender's addiction.21 The rationale for treating addiction as amitigating factor is that addiction may compromise an offender's rational choice tooffend and this, in turn, reduces the deterrent objectives of sentencing.[31] However, a discount for addiction must be based on persuasive evidence, asopposed to self-reporting. The onus of proof (to the civil standard) lies on the offender18 Miller v R [2020] NZCA 131.19 Moses v R [2020] NZCA 296.20 Martin v R [2020] NZCA 318.21 Zhang v R, above n 4, at [55].to establish the extent and effect of addiction. On the question of addiction andcommercial-level offending, the Court stated:22"We accept that non-causative addiction will be of little mitigatoryrelevance We also accept that commercial dealing is likely to beinconsistent with the impairment of the ability to exercise rational choice,which is what diminishes culpability and justifies discounting the sentence.But we would not exclude the possibility of a case in which that impairmentco-exists with more substantial offending."[32] The quantities of methamphetamine involved in Roulston and Roberts weresignificantly more modest than the present (respectively, 42 and 113 grams). InRoberts, Woolford J was satisfied that the appellant's addiction was causative of theoffending and the power dynamic in relation to the methamphetamine operation wassuch that the appellant was not involved of his own volition anyway. This can clearlybe contrasted with the present case where, as noted by the Judge, Mr Whale was actingwith the sole intention of making money. Mr Whale's operation was on an entirelydifferent scale. The following cases illustrate how the Court of Appeal views the linkbetween addiction and methamphetamine offending:(a) In Miller the Court was satisfied from a Hospital Addictions ServiceReport, a psychological assessment report and the appellant's criminalhistory that he was a chronic methamphetamine addict.23 A 19 per centdiscount was given for the appellant's addiction and rehabilitationprospects. The Court was satisfied that Mr Miller had insight into thedrivers of his offending and the reports showed a clear nexus betweenhis offending and addiction, and his willingness to engage inrehabilitation.(b) In Hall v R, the appellant held a leading role in manufacturing556 grams of methamphetamine.24 There was no available evidence toestablish he had diminished culpability because of his addiction and thequantity of methamphetamine produced was far more than necessary to22 At [147].23 Miller v R, above n 18 at [15].24 Hall v R [2020] NZCA 183.provide for his personal needs.25 Mr Hall had a significant role in theoffending. Text messages disclosed he was a user but there was noevidence he had diminished culpability.(c) In T'oa v R, it was clear that the appellant was genuinely addicted, butthis was overborne by the magnitude of the offending where there was2.2 kilograms of methamphetamine involved.26(d) In Parkes v R the quantity was 563 grams and the appellant performeda leading role.27 It was accepted that he was addicted tomethamphetamine and had taken constructive steps towards addressingthe underlying causes of his addiction. However, his offending wasmotivated by his desire to make a profit.[33] It is not helpful in the present case to set hard and fast principles as to whatconstitutes persuasive evidence of addiction. As the caselaw reveals, the factual andevidential variations from case to case are simply too broad and complex to permitsuch an approach. Addiction may be evident from the offender's criminal history, orfrom the facts of the case, or it may be necessary to have supporting third-partyevidence if the circumstances are more opaque. Here, the PAC report makes referenceto Mr Whale's dependency, but this relies on Mr Whale's self-reporting. Further, evenif he was a methamphetamine addict, there is nothing before me to persuade me thathe had had diminished culpability due to addiction. As noted in the PAC report,Mr Whale is a "business minded" individual. The offending was plainly a commercialenterprise. Mr Whale was found in possession of a significant quantity ofmethamphetamine, packaged as for supply, inside a locked tool cabinet. I agree withMs Sutton that the packaging suggests the supply was intended for wholesale dealersand not retail or street level customers. There is nothing before the Court to suggestthat Mr Whale was not motivated by the significant profits he could make in sellingmethamphetamine. Although he may have been a user, Zhang specifically states thatthose who offend for commercial gain will not get much succour from the judgment.2825 At [38].26 To'a v R [2020] NZCA 187.27 Parkes v R [2020] NZCA 203.28 Zhang v R, above n 4, at [25].Other discounts[34] For completeness, I record that there were no circumstances advanced inreliance on the s 27 report warranting a discrete discount. The adversity experiencedby Mr Whale in his early life does not help to explain his offending. A discount canonly be given for "traceable linkages between that deprivation, the offender and theoffending".29 Here there is no discernible causative link.[35] Further, given the date of the first sentence indication and the much later plea,a 20 per cent guilty plea discount was generous in the circumstances.[36] Similarly, the 10 per cent discount given by the Judge to recognise Mr Whale'spotential for rehabilitation is more than adequate.[37] For these reasons I am satisfied the sentence was not manifestly excessive andthe sentence appeal should be dismissed.Result[38] The appeal is dismissed.Moore JSolicitors:Mr Tuck, TaurangaCrown Solicitor, Tauranga29 Arona v R [2018] NZCA 427 at [59].