PRYOR v NEW ZEALAND POLICE [2022] NZHC 1011

PRYOR v NEW ZEALAND POLICE [2022] NZHC 1011 [12 May 2022]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2022-463-42[2022] NZHC 1011BETWEEN TARRYN CECILLY PRYORAppellantAND NEW ZEALAND POLICERespondentHearing: 11 May 2022Appearances: A de Villiers for AppellantP F Lee for RespondentJudgment: 12 May 2022JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 12 May 2022 at 2 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Tauranga[1] Ms Pryor entered guilty pleas to several drug-related charges in the DistrictCourt. These comprised offering to supply methamphetamine (x 3), being inpossession of methamphetamine and cannabis for supply and supplyingmethamphetamine. In addition, Ms Pryor pleaded guilty to charges of being inunlawful possession of a pistol and ammunition and failing to provide the police withthe PIN number needed to gain access to her cellphone. On 2 February 2022Judge L M Bidois sentenced Ms Pryor to an effective term of three yearsimprisonment on all charges.1[2] Ms Pryor appeals against sentence on the basis that the Judge erred inprinciple in constructing the sentence and failed to apply adequate discounts formitigating factors. She contends these errors led to an end sentence that wasmanifestly excessive.The charges[3] The charges related to two incidents, one of which occurred in May 2021 andthe other in November 2021.The offending in May 2021[4] At about 1.30 am on 12 May 2021 the police stopped a vehicle in whichMs Pryor was travelling as a passenger. She provided them with false details of heridentity to disguise the fact that she was in breach of the curfew conditions of her bail.The police searched a handbag in her possession and found a small set of scales,together with methamphetamine utensils. When the police requested the PIN numberfor her cellphone she refused to provide it.[5] The police subsequently obtained a production order to enable them to searchthe data stored on Ms Pryor's cellphone. This disclosed that she had supplied oroffered to supply methamphetamine to unknown persons on numerous occasionsbetween 25 April and 12 May 2021. The police were able to establish that between1 New Zealand Police v Pryor [2022] NZDC 3404.3 and 11 May 2021 Ms Pryor had offered to supply a total of 5.75 grams ofmethamphetamine to unknown persons.The offending in November 2021[6] On 11 November 2021 the police executed a search warrant at Ms Pryor'saddress. She and her partner were both present when the police executed the warrant.At that time they were living in a sleepout at the address. Ms Pryor was onelectronically monitored bail whilst awaiting sentencing on the charges relating to theoffending in May 2021.[7] The police found a small jewellery box beside a double bed in the sleepout.Inside the box they found six small plastic zip lock bags, each of which containedbetween .03 and .5 of a gram of methamphetamine. The total combined weight ofmethamphetamine in the bags was 3.1 grams. The police also found amethamphetamine pipe and a cannabis bong in the sleepout.[8] Inside a wardrobe in the sleepout the police found a plastic container thatcontained several items indicating involvement in drug-related activity. Theseincluded small plastic bags of varying sizes, digital scales, a container bearingmethamphetamine residue, scooping devices and approximately 66 grams of qualitycannabis head material.[9] The police also found a .22 calibre revolver loaded with eight live rounds ofammunition inside a handbag in a locked cupboard within the same wardrobe.[10] The police subsequently obtained a production order in relation to a SIM cardfound in a cellphone in the bedroom. This confirmed that between 13 October 2021and 9 November 2021 Ms Pryor had sold methamphetamine totalling 1.75 grams onthree occasions. A fourth sale of methamphetamine was also confirmed, but the policewere unable to identify the quantity sold. On two further occasions Ms Pryor hadoffered to sell methamphetamine totalling two grams and on a further occasion sheoffered to supply methamphetamine of an undetermined amount.The sentence[11] The Judge took the lead charges as being those relating to the search ofMs Pryor's property in November 2021. He took a starting point of 18 monthsimprisonment on the charges of supplying methamphetamine. He increased this by12 months to reflect the cannabis found at Ms Pryor's address and the three grams ofmethamphetamine she had in her possession. He further increased the sentence byeight months to reflect the fact that the police had also found the pistol andammunition. This led to a starting point of 38 months imprisonment for the offendingin November 2021.[12] The Judge then observed that a starting point of around two years four monthsimprisonment would have been appropriate on a stand alone basis for the chargesrelating to the offending in May 2021. However, he reduced this to 16 months toreflect totality principles. This led to an end starting point of 54 months imprisonmenton all charges before taking into account aggravating and mitigating factors personalto Ms Pryor.[13] The Judge increased the sentence by six months to reflect Ms Pryor's previousconvictions for similar offending and the fact that the offending in November 2021had occurred whilst Ms Pryor was on electronically monitored bail. This produced asentence of five years imprisonment before taking into account mitigating factors.[14] The Judge applied a discount of 25 per cent to reflect guilty pleas and ten percent to reflect the fact that Ms Pryor's offending had been driven by her addiction tomethamphetamine. He then applied a further discount of five per cent to reflectmitigating factors identified in a report tendered under s 27 of the Sentencing Act2002. The resulting discount of 40 per cent reduced the sentence by two years to oneof three years imprisonment. The Judge imposed concurrent sentences of three yearsimprisonment on the charges of supplying methamphetamine. He imposed lesserconcurrent sentences on the remaining charges.The appeal[15] Mr de Villiers advances two grounds in support of his overall submission thatthe end sentence was manifestly excessive. First, he contends that the Judge erred bytreating the two sets of charges as separate offending, each of which required its ownstarting point in terms of sentence. He says this ignored the reality that the two setsof offences comprised Ms Pryor's ongoing activity as a low level dealer in bothmethamphetamine and cannabis. He submits this resulted in an end starting point thatwas too high.[16] Mr de Villiers also submits the Judge ought to have applied a greater discountto reflect the mitigating factors identified in the s 27 report.DecisionThe structure of the sentence[17] I accept Mr de Villiers' submission that the approach the Judge adopted inrelation to the drug-related offending was potentially problematic. The offending inboth incidents was similar in kind even though it occurred on two separate occasions.Global starting points will generally be appropriate where offences are of a similarkind and occur within a short space of time. This reflects the fact that, althoughcharges may relate to separate incidents, they nevertheless reflect ongoing offendingof the same type. The selection of a separate starting point for each set of charges runsthe risk that the final starting point may be too high having regard to the overallculpability of the offending.[18] As a cross-check on the outcome in the present case I therefore propose toreconstruct the sentence by selecting a global starting point for the methamphetamineoffending and then increasing the sentence to reflect the cannabis charge and thecharges relating to the pistol and ammunition.[19] The starting point for the methamphetamine offending needs to reflect the factthat it involved the possession and supply of a total of 12.6 grams of methamphetamineover a six month period. This means the offending falls towards the lower end of Band2 identified by the Court of Appeal in Zhang v R.2 The starting point for sentencesimposed for offending in this band will be between two and nine years imprisonment.3[20] Ms Pryor's role was that of a street level dealer selling methamphetamine bothfor commercial gain and to support her own use of the drug. I accept Mr de Villiers'submission that on a stand alone basis the methamphetamine offending justified aglobal starting point of around two years six months imprisonment.[21] Any uplift to reflect the cannabis offending needed to recognise that theoffending related only to the possession of 66 grams of cannabis found in November2021. Ms Pryor's role as a retailer of cannabis was therefore similar to that which sheplayed in relation to methamphetamine. It therefore fell within category 2 identifiedby the Court of Appeal in R v Terewi, which generally calls for a starting point ofbetween two and four years imprisonment.4[22] However, the Court in Terewi recognised that offending within this band mayrequire a lesser starting point where sales are infrequent and of limited extent.5 Iconsider Ms Pryor's cannabis offending fell within this category. A starting point onthe cannabis charges of no more than 12 months imprisonment could be justified on astand alone basis. I accept Mr de Villiers' submission that an uplift of no more thansix months was required having regard to totality principles. This results in a finalstarting point on the drug-related charges of three years imprisonment. Thisadequately reflects Ms Pryor's role as a low level retailer of both cannabis andmethamphetamine.[23] A further uplift needs to be applied to reflect the firearms charges. On theirown they would attract a starting point of at least 18 months imprisonment to reflectthe fact that the pistol was loaded and the offending occurred in a drug dealing context.Mr de Villiers takes no issue with the uplift of eight months the Judge applied to reflectthese charges and I consider it reflects a correct application of totality principles.2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.3 At [125].4 R v Terewi [1999] 3 NZLR 62 (CA) at 65.5 At 65.[24] The uplift of six months the Judge applied to reflect aggravating factorspersonal to Ms Pryor was also within the available range. A sentence of four yearsfour months imprisonment was therefore appropriate before taking into accountmitigating factors. This is to be contrasted with the sentence of five yearsimprisonment the Judge selected after taking into account the same factors. It followsthat the sentencing method the Judge adopted resulted in a sentence that wasmanifestly excessive having regard to Ms Pryor's overall culpability.The level of discount applied to reflect the mitigating factors identified in the s 27report[25] Mr de Villiers does not take issue with the discounts the Judge applied toreflect guilty pleas (25 per cent) and Ms Pryor's addiction issues (ten per cent). Hecontends, however, that the Judge ought to have provided a discount greater than fiveper cent to reflect mitigating factors identified in the s 27 report.[26] The Judge dealt with this issue as follows:6[21] As to cultural factors, I give you a five per cent reduction. I do thaton this basis. You were using drugs before your father's death. You got acultivation from 2018, for social use then it increased. You were 30 years ofage when you started making your own choice as to who you were associatingwith, who you were living with, which was a gang member and you did nothave a dysfunctional upbringing where you were beaten and assaulted andexposed to violence and started using drugs at an early age. Of course thereis a reference to some sexual trauma but when you were confronted about thatyou denied it and of course that did not lead you to go on to use substances inany way. You started socially and that increased from that. So you had a goodupbringing. Your relationship issues were your choice. You picked them andtherefore you live with the consequences of those.[22] As to the grief [from the death of your father], I understand theimplications there and you might have increased your methamphetamine, butas a 30-year-old you should have done something about that and so I put youin a different category than many of the other offenders that I see.[27] The level of discount to be provided for factors identified in a s 27 report isvery much a matter of discretion for the sentencing Judge. In the present case theJudge clearly considered some reduction was required to reflect this factor. He was6 New Zealand Police v Pryor, above n 1.plainly concerned, however, that there was little in the way of causative nexus betweenthe offending and the factors identified in the report.[28] I do not consider any additional discount was required to reflect this factor, andlargely for the reasons given by the Judge. Furthermore, I consider an overall discountof 40 per cent, or 21 months, was sufficient to reflect mitigating factors overall. Whenthis is applied to the adjusted starting point of four years four months imprisonment itresults in an end sentence of two years seven months imprisonment. It follows thatthe sentence of three years imprisonment that the Judge imposed was manifestlyexcessive.Result[29] The appeal against sentence is allowed. The sentences of three yearsimprisonment imposed on the charges of supplying methamphetamine are quashed.In their place I impose concurrent sentences of two years seven months imprisonment.The sentences imposed on the other charges remain intact.Lang J