ADAMS v NEW ZELAND POLICE [2023] NZHC 2389

ADAMS v NEW ZELAND POLICE [2023] NZHC 2389 [30 August 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2023-412-47[2023] NZHC 2389BETWEEN TE-MAIPI ADAMSAppellantAND NEW ZELAND POLICERespondentHearing: 23 August 2023Appearances: S A Saunderson-Warner for AppellantC E R Power for RespondentJudgment: 30 August 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 30 August 2023 at 10.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Te-Maipi Adams pleaded guilty to three charges of supplying a class Ccontrolled drug to a person under 18,1 and two charges of supplying a class A drug.2[2] He was sentenced in the District Court to two years and three monthsimprisonment.3 He appeals this sentence on the ground the starting point was too high,and so the end sentence was manifestly excessive.Facts[3] The victims in this matter did not know the appellant. Victim 'R' was 14 yearsold at the time of the offending and victim 'C' was 12 years old.[4] At around 11am on Thursday 15 September 2022, victim R went to theappellant's place, looking to use cannabis. Inside the property, the appellant placed asmall amount of cannabis on spotting knives which he heated with a blowtorch. Hethen covered the knives with a home-made plastic funnel and both the defendant andR inhaled the smoke.[5] Later on the same day, both victims went to the appellant's property. Theywent with the appellant into his bedroom where he gave them a can of Woodstockalcohol to share. C had told the appellant she was 12 and the appellant replied that itwas okay as long as she did not tell anyone. The appellant then prepared cannabis asbefore and gave each victim around three turns inhaling.[6] The appellant then went to a liquor store and obtained alcohol. Once hereturned, he encouraged both victims to drink straight vodka and held the bottle upwhile they were drinking.[7] The appellant then offered to supply the victims methamphetamine. Using astraw, he placed a small quantity of the powder into a glass pipe. He then demonstratedto the victims how to smoke the methamphetamine. He held the pipe to the victims'1 Misuse of Drugs Act 1975, s 6(1)(d) and (2) – maximum penalty: eight years' imprisonment.2 Section 6(1)(c) and (2) – maximum penalty: life imprisonment.3 New Zealand Police v Adams [2023] NZDC 12689.mouths and applied the flame, causing them to inhale the smoke. He did this for bothvictims a number of times. R was holding C's hand while she inhaled themethamphetamine. When they were done, the appellant placed the end of the strawinto the bag and into victim C's mouth, telling her to suck out the powder. The victimswere then given more alcohol.[8] At around 5pm, the victims made an excuse to leave the appellant's home. Theyoungest victim could not walk and had to be assisted.[9] Around 7pm, the police were contacted, and they found the two victims in asignificantly intoxicated state. They were taken to hospital in a highly agitated state.They were both sedated and kept in hospital overnight.District Court decision[10] Mr Adams was sentenced by Judge Robinson on 21 June 2023.[11] When assessing the starting point, he said the factors that stood out about theoffending were, first, the age and vulnerability of the victims, second, that there wasat least a degree of coercion in relation to the younger complainant and, third, the harmthat resulted.[12] The Judge had regard to the authorities cited by defence counsel, in particularR v Arthur.4 In that case, the supply of between 0.4 and 0.7 of a gram ofmethamphetamine to four teenagers resulted in a starting point of three years. He alsoconsidered the decision of R v Woolridge, saying there was a parallel to this case asthere was at least a degree of pressure being applied where a 16-year-old was suppliedmethamphetamine.5 In that case it was said the starting point would have beentwo years, but was uplifted to two and a half to reflect the fact the defendant was anauthority figure and the minor was vulnerable.[13] In the Judge's view, the supply of methamphetamine was the lead charge, withWoolridge being the best comparator case. The Judge took into account counsel's4 R v Arthur [2005] 3 NZLR 739 (CA).5 R v Woolridge CA41/06, 6 July 2006.submission that Woolridge needs to be reinterpreted in light of the decision in Zhangv R where this offending would fall into the bottom band.6 However, he believed thatZhang would not detract from the fundamental principle that supply to young,vulnerable persons, needs to be met by way of a moderate term of imprisonment. Forthat reason, the Judge considered there should be a starting point of two and a halfyears for the methamphetamine offending alone. When taking into account thecannabis offending, and adjusting for totality, the starting point was three years'imprisonment.[14] There was then an uplift of five per cent for prior convictions for previous drugrelated offending.[15] Mr Adams was then held to be entitled to credit of 20 per cent for his guiltyplea and 10 per cent for cultural and background factors.[16] When the five per cent uplift was set off against the discounts, the end sentencewas 27 months' imprisonment.Principles on appeal[17] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.7 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".8 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.96 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.7 Criminal Procedure Act 2011, ss 250(2) and 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant's submissions[18] Ms Saunderson-Warner for the appellant submitted that the starting point ofthree years' imprisonment was excessive, saying both the two and a half year startingpoint for the charges of suppling methamphetamine and the six-month uplift for thecharges of supplying cannabis were too high.[19] Counsel advised she was unable to find any recent authorities for supplyingmethamphetamine which shared similar characteristics to the present case, noting thetwo decisions of Arthur and Woolridge are significantly dated. While Judge Robinsonidentified Woolridge as being the best comparator, counsel submits that the startingpoint adopted in Woolridge was directly influenced by the view that, ordinarily, therewould have been a starting point of two years' imprisonment and Mr Woolridge'soffending was aggravated due to the fact the minor was vulnerable and he had abusedhis position as a figure of authority. At the time of this case, the relevant band fromArthur was two to four years' imprisonment for low level supply. Since then, therehave been developments in sentencing for methamphetamine offending and in Zhang,it was determined that band one no longer has a lower end of two years' imprisonment.[20] Ms Saunderson-Warner submits that as this was a one-off supply involvingvery small quantities of methamphetamine with no commercial element, this was avery low end of band one case. Counsel accepts that the victims were particularlyyoung and vulnerable and harm was caused. However, Mr Adams had never met thecomplainants and had not assumed any responsibility in relation to them and there wasno breach of trust. As established in the cultural report, Mr Adams had a prolongedaddiction to substances and had a traumatic upbringing. Further, Mr Adams was notattempting to stupefy the victims or offend against them in other ways, it was just anentirely wrong-headed decision by an addicted user.[21] Counsel submits that had the supply been to adult users, the outcome wouldlikely have been a fine or community work. Given the supply was to young peopleand harm was caused, counsel submits that a starting point of around 15-18 months'imprisonment would be appropriate for the methamphetamine charges. With regardsto whether an uplift should be applied for the cannabis charges, counsel submits thatan uplift is not necessarily required and the starting point of 15-18 months might beconsidered sufficient to reflect the totality of the offending. If an uplift is thoughtnecessary however, counsel submits that the overall starting point should not exceed20 months' imprisonment and therefore the global starting point was clearly excessive.[22] Further, counsel submits the end sentence was also excessive. Thefive per cent uplift was for previous convictions that were different in nature beingcommercial supply of methamphetamine. Only a 20 per cent credit for guilty pleaswas allowed despite the fact that other charges had been withdrawn and there was a10 per cent credit for background factors which was not, in counsel's submission,generous given the links between his background and this offending.[23] Applying this same uplift and credits however, the end sentence counsel saysshould have been imposed is between 11 and 15 months' imprisonment.Respondent's submissions[24] Mr Power, for the respondent, first discussed the decision R v Ward.10 In thatcase, the appellant pleaded guilty to supplying cannabis to a 14-year-old girl. In thatdecision the Court of Appeal referred to R v Rameka which observed that the supplyof cannabis to minors added significantly to the gravity of the charge.11 The court alsonoted that penalties short of imprisonment had been insufficient to achieve deterrenceand said the supply of cannabis to a person under 18 required a deterrent sentence.Mr Power submits that the Court of Appeal decision of R v Ward has not beenoverruled and is still relevant for sentencing purposes.[25] The respondent rejects the appellant's submission that there should be no upliftfor the supply of cannabis, or if there was, it should be a nominal uplift of two months,saying that this approach appears to ignore the decision in Ward.[26] The respondent submits the appellant is wrong to describe the offending as a"one-off" supply of cannabis. The offending involved the appellant supplying10 R v Ward CA378/96, 8 November 1996.11 R v Rameka CA240/96, 25 July 1996.cannabis to the 14 year old at around 11:00am and then four and a half hours later,supplying cannabis to both victims. He not only supplied the cannabis but took anactive part in preparing the cannabis and assisting them to consume it.[27] In Arthur, the Court of Appeal rejected the appellant's submission the startingpoint of three years was too high where a teacher supplied small quantities ofmethamphetamine at his home at a party.12 Further in Woolridge, where the appellantsupplied methamphetamine to a 16-year-old relative while at a motel on a businesstrip, a starting point of two and a half years was held to be appropriate reflecting thefact the supply to a minor as well as the appellant's position of authority. Therespondent submits that this case involves a much younger child (12 years) and ayounger one (14 years), than in Woolridge and could be seen as more serious.[28] While the appellant references Zhang and submits that this would be at the verylow end of band one,13 the respondent submits this is inappropriate as there were otheraggravating features, primarily including the supply to two vulnerable teenagers andalso the purchase and supply of alcohol. The three year starting point could not, inthese circumstances, be said to be manifestly excessive.[29] Finally, in respect of the guilty plea credit, the respondent submits the caseagainst the appellant was very strong, if not overwhelming, the appellant did not pleadguilty at the first opportunity and Judge Robinson was correct to award a 20 per centcredit.Analysis[30] The key issue for determination in this appeal is whether the starting point ofthree years' imprisonment was excessive. This three-year starting point includes thetwo and a half year starting point for the methamphetamine charges as well as thesix-month uplift for the cannabis supply charges.[31] There was no dispute that the supply of methamphetamine charges were thelead charges. The starting point for that offending has to be set by reference to the12 R v Arthur, above n 4.13 Zhang v R, above n 6.guidelines established by the Court of Appeal in Zhang.14 The quantity ofmethamphetamine is an important measure of culpability or blameworthiness.15 Thisis because the quantity of methamphetamine involved can indicate commercial dealingand it is also a measure of harm done to the community. In this case, the amount ofmethamphetamine would place Mr Adams within band one, being a quantity of lessthan five grams. However, as this was not a commercial operation, Zhang does notprovide much more guidance.[32] Counsel have submitted the decisions of Arthur and Woolridge are nowsomewhat dated. I accept that is correct. However, I do not accept the principle thatthe supply of methamphetamine to minors is a seriously aggravating feature haschanged. In Arthur, supplies of between 0.4 and 0.7 of a gram of methamphetamineto four teenagers resulted in a starting point of three years. In Woolridge, which wasconsidered to be the most analogous by the District Court, the supply to a 16-year-oldso she could try methamphetamine attracted a starting point of two years and a half.[33] Another relevant case, although again dated, is R v Mark where Chambers Jtook a starting point of 18 months for the supply of 0.04 g of methamphetamine andthen uplifted it by six months for three charges of supplying cannabis, where one ofthose charges involved supply to his 13 year old son. In doing so, he observed that"Parliament and the Courts have looked with special concern at those who supplycannabis to young people".16[34] There is no dispute this case falls within band one in Zhang which allowssentences of zero to four years' imprisonment. This provides the sentencing Judgegreater flexibility than was available with the starting points provided in Arthur andin R v Fatu,17 where the lower end of band one was two years. In adjusting the breadthof sentence available in band one, the Court in Zhang observed that "judges must bemore willing to set a starting point below the range specified in Fatu for a band whereculpability (other than in terms of quantity) is low".18 They went on to say "Access to14 Zhang v R, above n 6.15 At [104].16 R v Mark HC Whangarei, T0200037 14 January 2003 at [23].17 R v Fatu [2006] 2 NZLR 72 (CA).18 Zhang v R, above n 6, at [123].the lower sentencing starting points may be expected only by those whose role is foundto be lesser in degree, and where quantities are at the lower end of the availablerange".19[35] While there is no doubt that in the present case the quantity involved was verysmall, the culpability was significant. Both the victims were young, and in the case ofthe supply to the 12 year old, Mr Adams knew she was 12, but this did not dissuadehim. I consider this is a seriously aggravating factor. While there is no significantbreach of trust here as Mr Adams was not, for example, a teacher or family member,there is a modest element of breach of trust whenever an adult has unsupervisedchildren in their presence and offends against them as here. A starting point of two totwo and a half years was clearly warranted to reflect the youth of the two victims, theaggravating feature of supplying alcohol to them both at the same time as supplyingmethamphetamine, and the harm done to the victims as set out in the victim impactstatement and the counsellor's report for the youngest victim.[36] The next issue is whether the six month uplift for the cannabis-relatedoffending was warranted. In my view, this was a high uplift when considering thecannabis offending was inextricably linked to the methamphetamine offending andessentially duplicated the same aggravating factors. An uplift of three months wouldhave been adequate to reflect this and the principle of totality. However, that is not tosay the Judge was wrong or that the end sentence was manifestly excessive.[37] Ms Saunderson-Warner suggests a five per cent uplift was not warranted forprior history saying other offences were for commercial supply of methamphetaminewhich was different to the present offending. However, it is clearly related offendingand reflects a pattern of selling, supplying and using cannabis and methamphetaminein recent times. The uplift was relatively modest and was available to the Judge.[38] In terms of the discount of 20 per cent for guilty plea, again this was within therange available to the sentencing Judge. While Mr Adams pleaded guilty once somecharges were removed, there is no suggestion that he was prepared to plead guilty tothe remaining charges at an earlier point. As was said in R v Hessell, "first reasonable19 At [123].opportunity means what it says. The maximum discount is appropriate only for thosewho are prepared to acknowledge their guilt at the outset."20[39] While counsel does not actively challenge the 10 per cent credit forpersonal/background matters, I am readily satisfied it was appropriate, particularlynoting the limited causative contribution between the matters identified in that reportand the current offending.[40] In summary, the only area where I would have departed from the Judge'ssentencing decision is in the size of the uplift for the cannabis offending having regardto the principle of totality. However, that would only alter the end sentence by justover two months. This is insufficient for me to reach the view that the end sentencewas manifestly excessive. It was not.Conclusion[41] For the above reasons, the appeal is dismissed.Solicitors:Crown Solicitor, DunedinCopy to:S A Saunderson-Warner, Barrister, Dunedin20 R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298, at [32].