BLACKBURN v R [2022] NZHC 2696

BLACKBURN v R [2022] NZHC 2696 [18 October 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2022-485-000046[2022] NZHC 2696BETWEEN RICHARD JAMES BLACKBURNAppellantAND THE KINGRespondentHearing: 18 October 2022Appearances: S J Gill for the AppellantM Paish for the RespondentJudgment: 18 October 2022JUDGMENT OF GENDALL JIntroduction[1] On 11 July 2022, the appellant, Mr Richard Blackburn, was sentenced by JudgeKelly in the Wellington District Court to two years and eight months' imprisonmentin respect of the following Crown and Police charges:1Crown charges(a) offering to supply a Class A controlled drug, namely methamphetamine(representative charge);21 R v Blackburn [2022] NZDC 13313.2 Misuse of Drugs Act 1975, s 6(1)(c) and (2) — maximum penalty life imprisonment.(b) conspiracy to deal a Class A controlled drug, namely methamphetamine(representative charge);3(c) offering to supply a Class B controlled drug, namely GBL;4(d) unlawful possession of a firearm;5(e) possession of a Class A controlled drug, namely methamphetamine, forthe purpose of supply;6(f) possession of a Class B controlled drug;7(g) possession of a Class C controlled drug, namely cannabis;8(h) possession of utensils;9(i) unlawful possession of ammunition;10(j) possession of a Class A controlled drug, namely methamphetamine, forthe purpose of supply (representative charge);11Police charges(k) unlawfully in an enclosed yard;12(l) dangerous driving (x2);133 Section 6(2A)(a) — maximum penalty 14 years' imprisonment.4 Section 6(1)(c) and (2)(b) — 14 years' imprisonment5 Arms Act 1983, s 45(1) — maximum penalty four years' imprisonment.6 Misuse of Drugs Act, s 6(1)(f) and 2(a) a— maximum penalty life imprisonment.7 Section 7(1)(a) and (2) — maximum penalty six months' imprisonment.8 Section 7(1)(a) and (2) — maximum penalty three months' imprisonment.9 Section 13(1)(a) and (3) — maximum penalty one year imprisonment.10 Arms Act, s 45(1) — maximum penalty four years' imprisonment.11 Misuse of Drugs Act, s 6(1)(c) and (2)(a) — maximum penalty life imprisonment.12 Summary Offences Act 1981, s 29(1)(b) — maximum penalty three months' imprisonment.13 Land Transport Act 1998, s 35(1)(b) — maximum penalty three months' imprisonment with amandatory disqualification of six months or more.(m) driving whilst forbidden;14(n) aggravated failing to stop (x2);15(o) driving whilst suspended;16(p) possession of an offensive weapon;17(q) possession of a Class B controlled drug;18(r) receiving property over $1000 (x3);19 and(s) receiving property under $500.20[2] The appellant pleaded guilty to the charges following a sentence indicationgiven on 14 March 2022. The background to the offending is well summarised at [5]–[28] of the sentencing decision.[3] The final sentence imposed differed from the sentence indication given in threematerial ways. First, the discount for addiction issues and rehabilitative efforts wasreduced from 30 per cent to 20 per cent. Secondly, however, the Judge provided afurther 15 per cent discount to those indicated. Thirdly, the reduction for time spenton restrictive EM bail was increased from four months to five months.[4] The appellant now appeals this sentence. He says the final sentence imposedof two years and eight months' imprisonment was manifestly excessive andinappropriate in all the circumstances. Though the appellant pleaded guilty on thebasis of the sentence indication he does not wish to reconsider his guilty plea.14 Section 52(1)(c) — maximum penalty — fine not exceeding $20,000.15 Sections 52A(1)(a)(ii), (3), (6) and 114(2) — maximum penalty six months' disqualification(cumulative on other disqualification ordered by the Court).16 Section 52(1)(c) — maximum penalty fine not exceeding $20,000.17 Crimes Act 1961, s 202A(4)(a) — maximum penalty three years' imprisonment.18 Misuse of Drugs Act, s 7(1)(a) and (2) — maximum penalty six months' imprisonment.19 Crimes Act, ss 246 and 247A — maximum penalty seven years' imprisonment.20 Sections 246 and 247(c) — maximum penalty three months' imprisonment.Sentence indication[5] On 14 March 2022, the Judge in the District Court gave the appellant thesentence indication referred to above in respect of all charges.[6] In that sentence indication, the Judge adopted a starting point of six years'imprisonment for the methamphetamine offending, with an uplift of six months for thefirearms and ammunition charges and an uplift of one year to account for the balanceof the police charges. This lead to a global starting point of seven years and sixmonths' (90 months) imprisonment. She then applied a further two month uplift foroffending while on bail simpliciter and a reduction of four months for time spent onrestrictive electronically monitored bail (EM bail). By way of discounts, the Judgeproposed a further reduction of 30 per cent for addiction issues and rehabilitativeefforts, and a 25 per cent discount if guilty pleas were entered.[7] The end sentence indicated was 37 months' imprisonment, but the Judge notedthis was subject to further reports. The appellant accepted the sentence indication andpleaded guilty to all charges.[8] Following the sentence indication, the appellant instructed Cultural ReportsNZ Ltd to prepare a s 27 cultural report. This report was filed in court prior to thesentencing.Sentencing[9] At sentencing, the Judge retained the starting point and uplifts describedabove. She also provided a 25 per cent discount for guilty pleas as indicated.However, the discount for addiction issues was reduced from 30 per cent to 20per cent. The Judge also provided an additional 15 per cent discount for s 27 reportmatters and increased the reduction for time spent on EM bail from four months tofive months.[10] The end sentence imposed thus amounted to 32 months' imprisonment (twoyears and eight months' imprisonment).SubmissionsAppellant's submissions[11] The appellant appeals this sentence on the ground that the sentence wasmanifestly excessive. The appellant says it was unfair for the Judge in sentencing himto reduce the discount for drug addiction and rehabilitation efforts from 30 per cent to20 per cent, as the appellant had already pleaded guilty to the charges on the basis ofthe sentencing indication given. Accordingly, it is contended that the Judge erred inrestructuring the ultimate sentence in this way.[12] The appellant contends the Judge should have provided the 30 per centdiscount as indicated as well as an additional 15 per cent discount in respect of thes 27 report. This is a total credit of 70 per cent. Therefore the end sentence, theappellant argues, should have been 22 months' imprisonment, which he says shouldthen have been commuted to one of home detention.[13] The appellant also submits the Judge should have informed the appellant thatshe was proposing to restructure the sentence and given him the opportunity toreconsider his guilty plea in light of that.Respondent's submissions[14] The respondent opposes the appeal. Ms Paish for the Crown says that, whilethe Judge took a somewhat unorthodox approach at sentencing, it did not render theend sentence manifestly excessive. The respondent contends the reduction in respectof the credit for addiction and rehabilitative efforts was counterbalanced by theallowance imposed in respect of the s 27 factors.The sentencing indication[15] Under s 61 of the Criminal Procedure Act 2011 (the CPA) the Court may givethe defendant a sentence indication at their request. Section 116 of the CPA providesthat a sentencing indication given under s 61 is binding on the Judge who gave it unlessinformation becomes available to the Court after the sentence indication but before thesentencing, and the Judge is satisfied the information "materially affects the basis onwhich it was given".Approach to appeal[16] Under s 250 of the CPA, an appeal against sentence must only be allowed ifthe Court is satisfied that, for any reason, there was an error in the sentence imposedand a different sentence should have been imposed.21 The Court must dismiss theappeal in any other case.22[17] The focus is on the final sentence and whether that was in the available range,rather than the exact process by which it was reached.23 As the Court of Appealdescribed the test in R v Peters:24[13] As this Court has indicated on many occasions, the issue whether asentence is manifestly excessive or manifestly inadequate or inappropriatemust be examined in terms of the sentence actually passed rather than theprecise process by which it is reached. Thus, if a sentence might be theproduct of a starting point which is itself manifestly excessive but is in theresult ameliorated by allowances made for mitigating factors so as ultimatelyto be brought to a point of acceptability, this Court will be disinclined tointervene through concern over any particular component[18] In Tutakangahau v R, the Court of Appeal held that s 250 was not intended tochange the previous "error principle" approach to appeals against sentence.25 Theerror principle was explained by the Court of Appeal in R v Shipton in the followingway:26The discretion to vary the sentence is not unfettered; this Court does notembark upon the sentencing afresh nor substitute its own opinion for that ofthe original sentencer. There must be an error vitiating the exercise of theoriginal sentencing discretion. In short, this Court must proceed on an "errorprinciple".[19] The Court in Tutakangahau considered it may be helpful to consider the issuein terms of whether the error is material.27 While s 250(2) makes no express reference21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].22 Criminal Procedure Act 2011, s 250(3).23 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 21, at [36].24 R v Peters CA12/03, 14 May 2003.25 At [26]–[31].26 R v Shipton [2007] 2 NZLR 218 (CA) at [138].27 Tutakangahau, above n 21, at [30].to "manifestly excessive", in Tutakangahau v R the Court of Appeal said the conceptof "manifestly excessive" was "simply a means of examining the significance of theerror to decide whether a different sentence should be imposed",28 a claim which "isinevitably premised on the contention of a prior error" such as a starting point whichis too high, incorrect discounts being given, or a lack of parity with co-offenders.29[20] An appellate court must therefore exercise an appropriate degree of restraintand will intervene only where the sentence imposed is manifestly excessive on thebasis of some material error.30 An appellate Court will not intervene unless a sentencewas outside the range available to the sentencing Judge.31[21] Thus, for the appeal to be successful in this case, it must be shown that the endsentence of two years and eight months' imprisonment was "manifestly excessive".[22] If an appeal is allowed, the appeal court must either set aside the sentence andimpose another sentence that it considers appropriate, vary the sentence, or remit thesentence to the court that imposed it, with or without further directions.32Discussion[23] In McMillan v R, the Court of Appeal recently provided some guidance inrespect of s 116, as follows:33[121] However, the terms of s 116(2) free the sentencing judge from thatconstraint in certain circumstances. If the judge is acquainted with freshinformation that comes within s 116(2), then subject to following an adequateprocess that is fair to both sides, a sentence may be imposed that is inconsistentwith the sentence indication.[122] In cases where a judge is minded to increase a sentence in reliance onfurther information becoming available since giving a sentence indication thathas been accepted, there is clearly an obligation to give adequate opportunityto counsel to consider the issue, and the defendant has to be given anopportunity to withdraw the guilty pleas.34 That obligation arises even if the28 At [32].29 At [32].30 Kumar v R [2015] NZCA 460 at [81].31 Tutakangahau, above n 21, at [36].32 Sentencing Act 2002, s 251.33 McMillan v R [2022] NZCA 128.34 Herlund v R [2021] NZCA 71 at [37].end sentence is not increased, but the judge proposes to alter the way thesentence is constructed.35[24] Regarding these stated obligations, where the Judge proposes to alter the waya sentence is constructed to ensure that counsel is given adequate opportunity toconsider the issue, and the defendant given an opportunity to withdraw the guilty pleas,the Court also cited its earlier comments from 2021 made in Williams v R, as follows:[15] The sentence indication was given pursuant to s 61 of the CriminalProcedure Act. It was binding on the Judge unless information becameavailable to her after the sentence indication was given but before sentencing,and she was satisfied that that information materially affected the basis onwhich the sentence indication was given.36[16] No further information became available to the Judge but she departedfrom the sentence indication by restructuring the sentence imposed. Thesentence imposed for the indecency offending was reduced from that indicatedin the sentence indication and the sentence imposed for the charge ofattempting to dissuade a witness from giving evidence was materiallyincreased. Nevertheless, the end sentence remained the same.Notwithstanding this, we consider that the Judge should have advised MrWilliams that she was proposing to restructure the sentence she intended toimpose, and she should have given Mr Williams the opportunity to reconsiderhis plea.[17] Where a Judge fails to sentence in accordance with a sentenceindication, the conviction should generally be quashed to allow the defendantthe opportunity to exercise the right to change his or her plea, albeit that thisis not a statutory requirement.37 Before us, [counsel for the defendant] did notsuggest that his client wished to vacate his plea and, given that the endsentence remained the same, we have treated the appeal as a sentence appealrather than appeal against conviction.[25] In that case, the Court of Appeal considered the sentence imposed by the Judgeto be manifestly excessive and reduced the sentence of two years and 10 months'imprisonment to one year and nine months' imprisonment, with leave to apply tocommute the sentence to one of home detention.38The reason the sentence was reducedby the Court of Appeal, however, was not because of the failure by the Judge to advisethe defendant that she was proposing to restructure the sentence, but because thesentence was out of line with the authorities.35 Williams v R [2021] NZCA 54, (2021) 29 CRNZ 783 at [15]–[17].36 Criminal Procedure Act, s 116(2).37 See for example Te Namu v Police [2013] NZHC 3443; and Te Tau v Police [2015] NZHC 1716.See generally R v Gemmell [2000] 1 NZLR 695 (CA).38 At [30].[26] In Williams v R, however, there was no new information to justify therestructuring at sentencing. And I note that the end sentence imposed did notultimately differ from that indicated, arguably rendering such a restructureunnecessary. Here, in contrast, it is accepted there was further information filed in theDistrict Court between the sentence indication and the sentencing, being theappellant's s 27 report. Thus, the first requirement for departing from a sentenceindication was fulfilled. The Judge, having received new information after providingthe sentence indication, it seems decided on the basis of that information that it wasappropriate to restructure the sentence to provide Mr Blackburn more by way ofoverall discount.[27] However, here Mr Gill for the appellant maintains there was no indication thatJudge Kelly was satisfied the information "materially affected the basis on which [thesentence indication] was given", in terms of the second requirement justifyingdeparture from the earlier sentence indication. Admittedly, the Judge did not makethis explicit, nor does it seem she provided the appellant or his counsel with theopportunity to reconsider the guilty pleas. The Judge ought to have done so.[28] I do note at this point that the appellant does not wish to treat this appeal asone against his conviction. The appellant does not wish to vacate his plea. Rather, thepresent appeal is sought to be treated solely as an appeal against sentence. Therefore,the question for me is simply whether the final sentence imposed was manifestlyexcessive in all the circumstances. And I remind myself that my task in assessing thepresent sentence, sentencing being by its nature an exercise of discretion, is not amatter of ensuring that a particular process was followed but rather that the endsentence reached was one that was reasonably open to the Judge.[29] Having received the additional information in the form of the s 27 report,Judge Kelly clearly considered it appropriate to grant a 15 per cent discount torecognise and acknowledge the matters contained in the report, and their causativeeffect on the appellant's offending.39 There is no challenge from any quarter about thesize of this discount with respect to this information. I do accept the Crown's39 R v Blackburn, above n 1, at [51].submission that such a discount was generous, given the significant overlap with thefactors identified in the drug report as causative of the offending, which itself resultedin the 30 per cent discount with respect to those matters in the sentence indication.[30] I accept there is significant overlap between the addiction issues andrehabilitative efforts (for which a discount had been indicated) and the factorsidentified in the s 27 report (which was not before the Judge at the time of the sentenceindication). The Judge it seems looked to account for this overlap by reducing the firstdiscount when she received the additional information and she provided an additionaldiscount in respect of it. I accept the Crown's submission that, given this overlap, thereduction in respect of the credit for addiction and rehabilitative efforts was effectively— and adequately — counterbalanced by the allowance imposed in respect of thelargely similar s 27 factors.[31] The effect of this restructure, as noted, was also to increase the overalldiscounts by some five per cent, resulting in a lower overall sentence than wouldotherwise have been imposed. I consider that while this might be seen as anunorthodox approach, it was nevertheless one that was reasonably open to the Judge,having received new information subsequent to the sentence indication which sheseemed to consider materially affected the situation.[32] I am reinforced in my conclusion that the end sentence imposed was reasonablyopen to Judge Kelly when I consider what the Judge might alternatively have chosento do. In this respect, I note particularly the Judge could have reached the same endsentence she ultimately imposed had she simply opted to provide an additional fiveper cent discount for the factors identified in the s 27 report. It is clear the Judgepreferred a different approach, namely reducing the discount for addiction issues andrehabilitative efforts and providing a larger discount for the s 27 report than under thealternative approach suggested above. Nevertheless, while the approach the Judgetook after receiving the s 27 report was not necessary, neither was it somehowprohibited.[33] As a final matter, I confirm that I see no issue in the increased reduction fortime spent on restrictive EM bail, particularly in light of the time that had passedbetween the sentence indication and sentencing.[34] The appellant submits that the appropriate sentence would have been homedetention. Even if I were inclined to agree, which I am not necessarily, be that as itmay the sentence the Judge gave being ultimately a relatively short period ofimprisonment was one that was available to the Judge in all the circumstances here. Inote too in this respect the numerous and disparate charges on which the appellant wassentenced, and also the fact that the methamphetamine charges alone carried a startingpoint adopted by the Judge of six years' imprisonment, uplifted by several additionaldiscrete amounts then applied to the starting point as well. While I acknowledge theappellant's efforts in rehabilitation and his attempts to remain drug-free during hisremand period on EM bail, nevertheless a sentence of imprisonment was clearly asentence that was open to the Judge to impose.Conclusion[35] The question in this case is whether the Judge's departure at sentencing fromthe sentence indication she had given resulted in a final sentence that was manifestlyexcessive in the circumstances. The answer to that question is no.[36] I am satisfied that final sentence imposed in this case of two years and eightmonths' imprisonment was reasonably open to the Judge and it was not manifestlyexcessive here. In this respect I note the final sentence was in fact lower than thatindicated in the sentence indication, given in relation to similar factors. It seems theJudge, upon receiving new information in the form of the s 27 report, saw fit torestructure the sentence accordingly to account for the additional report. Arguably,Judge Kelly should have informed counsel and the appellant she was proposing torestructure the sentence in the way proposed, and she should have allowed theappellant the opportunity to reconsider his pleas. However, I am satisfied in this casethe additional discount provided effectively and adequately counterbalanced thereduction in the discount for addiction issues and rehabilitative efforts. In my viewthe final sentence imposed was not manifestly excessive in all the circumstancesprevailing here.Result[37] This appeal is dismissed.Gendall JSolicitors:Steve Gill Law for the AppellantLuke Cunningham & Clere for the Respondent