STANDING v NEW ZEALAND POLICE [2020] NZHC 2111

STANDING v NEW ZEALAND POLICE [2020] NZHC 2111 [20 August 2020]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2020-443-17CRI-2020-443-18[2020] NZHC 2111BETWEEN TERRENCE LEWIS STANDINGAppellantAND NEW ZEALAND POLICERespondentHearing: 18 August 2020Counsel: P J Mooney for appellantJ E Bourke for respondentJudgment: 20 August 2020RESERVED JUDGMENT OF DOBSON J[1] The appellant (Mr Standing) was sentenced by Judge Greig in theNew Plymouth District Court on 25 May 2020 to terms of imprisonment totalling17 months.1 The sentencing was for two convictions for offering to supply a class Adrug, two convictions for failing to appear in court and two convictions for breach ofsupervision. The sentencing also included a re-sentencing on two convictions fortheft.[2] Mr Standing seeks to appeal the sentences imposed on the ground that theywere manifestly excessive.[3] Mr Standing also seeks leave to bring his appeal out of time. It appears that hesigned the appropriate notice of appeal sufficiently promptly for it to have been filed1 Police v Standing [2020] NZDC 9344.in a timely way, but receipt in his lawyer's office was delayed for some period andthen filing was not attended to by his lawyer as a result of an oversight within thatoffice.[4] In those circumstances, and given the absence of objection by, or claim of anyprejudice to, the respondent, leave is granted for the appeal to be brought out of time.Factual background and Mr Standing's personal circumstances[5] In January 2019, Mr Standing resided in hostel-type accommodation inNew Plymouth and paid for the accommodation by helping with cleaning and othertasks at the property. His work responsibilities at the hostel gave him access to alocked shed where mountain bikes were stored for hiring to guests at the hostel.During January 2019, Mr Standing took two mountain bikes from the locked shed andsold them to a used goods dealer. On 21 March 2019, Mr Standing was sentenced toa year's supervision on those two theft charges.[6] Between 6 June and 4 July 2019, Mr Standing breached the supervisionsentence by failing to report to his Probation officer, and he faced the same charge forthe period between 4 July 2019 and 23 January 2020. Given the Probation officer'sdifficulties in locating Mr Standing during this period, a warrant was issued for hisarrest in July 2019, and after he was arrested on that warrant he was released on bailbut failed to appear in court in October 2019.[7] On 12 December 2019, Mr Standing attempted to flee from Police when theyarrived at an address on a matter unrelated to him, and when bailed on that occasionhe again failed to appear in court. Enquiries revealed that Mr Standing had madeoffers to supply methamphetamine on two occasions. The first was for a quarter of agram, to the occupier of the property where he was apprehended, and the second offerinvolved bartering a gram of methamphetamine for a vehicle and cannabis.[8] The pre-sentence report on Mr Standing commented:A sentence of imprisonment is recommended. A sentence of imprisonmentwill serve largely as a punitive response to Mr Standing's total disregard forprevious community-based sentences while affording him the opportunity todry out and seek the drug and alcohol support he needs.[9] The report-writer stated that Mr Standing blamed anti-social peers for leadinghim down the wrong path, and that he accepted little or no responsibility for hisactions.The sentencing analysis[10] The Judge started with the two charges of offering to supplymethamphetamine. The first is in respect of a quarter of a gram, which Mr Standinghad offered for sale at $150, and the second was for a gram of methamphetamine,which he proposed to exchange for a motor vehicle and some cannabis. The Judgeadopted a starting point of 12 months each for those two convictions, to be served ona concurrent basis.[11] Mr Standing had previously been sentenced on two convictions for theft and,because of a breach of the community sentence imposed, was to be re-sentenced. TheJudge adopted a four month cumulative starting point on the re-sentencing for thosetwo convictions.[12] Mr Standing had also been charged with breaches of supervision, first from6 June 2019 to 4 July 2019, and secondly from 4 July 2019 to 23 January 2020. TheJudge adopted a starting point of one month's cumulative imprisonment for the firstperiod of breach of supervision, and a cumulative starting point of six weeks for thesecond period. There were also two convictions for breach of bail – the first on2 October 2019 to which the Judge attributed a cumulative starting point of onemonth's imprisonment, and secondly on 21 January 2020, which attracted a furthercumulative starting point of one month's imprisonment.[13] The Judge uplifted this sentence by six weeks to reflect Mr Standing's previousconvictions for breach of court orders, leading to a total sentence of 23 months'imprisonment. He adopted a 25 per cent discount for guilty pleas, which the Judgerounded up to a six month discount, leading to the end sentence of 17 months'imprisonment.Grounds for the appeal[14] Mr Mooney criticised the starting points adopted for each component of theoverall sentences as being excessive and that the Judge had failed adequately toconsider the need for a discount for totality, after imposing sentences on a cumulativebasis. Mr Mooney submitted that the Judge's omission to record any totality analysisat the least entitled Mr Standing to have the sentencing analysis undertaken afresh.Mr Mooney's written submissions also contended there was an arithmetic error in theJudge's calculations, but he resiled from that criticism at the hearing of the appeal.[15] The Crown response was, in essence, that each of the component starting pointswas within the range open to the Judge, and that the end sentence was also withinrange, so that Mr Standing could not make out a sentencing outcome that wasmanifestly excessive. In particular, the sentence for the class A drug offending wascharacterised as "light", introducing the prospect of "unders and overs" that meant thecombined cumulative sentences remained within the range that was available.Offers to supply class A drugs[16] The Judge treated these as the lead offences and agreed with both counsel thatthey fell within band one of the Court of Appeal's recent guideline decision inZhang v R.2 The Judge was concerned that Mr Standing appeared not to give anyconsideration to the harmful, long-lasting effects of class A drugs. He found there wasno evidence of an addiction driving the offers to sell methamphetamine, so was notinclined to be lenient in setting the sentence on that account. The Judge indicated thathe had been intending to set a starting point of two years' imprisonment, but had halvedthat to 12 months' imprisonment, which was to be imposed concurrently for bothcharges.[17] Mr Mooney submitted that this was minor offending clearly within band oneas defined in Zhang, where sentences range from four years' imprisonment down tocommunity sentences for dealing in less than five grams. On the basis that the quartergram was offered at $150, Mr Mooney submitted that the barter deal for a gram should2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.not be valued at any more than $600, so in totality was at the most modest end of bandone. Certainly, the lack of any pattern in the attempted dealing and lack of financialcommitment to it by Mr Standing justified its lesser ranking of culpability on the levelsin Zhang. Mr Mooney submitted that had this offending stood on its own, a startingpoint for both convictions of approximately six months' imprisonment would havebeen appropriate.[18] For the respondent, Mr Bourke submitted that the starting point could havebeen 18 months' imprisonment, citing the pre-Zhang High Court decision in R vHarrison.3 That case involved the same quantity of 1.2 grams. However, theoffending in that case was measurably more serious and its adherence to the previousguideline judgment in R v Fatu lessens its current relevance.4[19] I note the Police submissions on sentencing in the District Court contended fora starting point on the drug charges of eight months' imprisonment. Mr Bourkesubmitted that the Police prosecutor was wrong to rank the offending at that level, butI consider that proposed starting point to have been appropriate. The offers to supplywere of modest amounts,5 with no evidence of an on-going pattern of dealing, such aswould be suggested by the presence of electronic scales or a supply of bags (whichwas the case in Harrison). There was no suggestion that Mr Standing had any materialextent of cash which might reflect dealing, or anything in the nature of a tick list. Heis appropriately ranked in the lesser category of participants in band one.[20] Mr Standing is not entitled to leniency on the ground that the dealing activitywas driven by his own addiction, when Zhang requires more than self-reporting onthat aspect.6 Further, the fact that he was proposing to trade a gram ofmethamphetamine for a motor vehicle and cannabis is inconsistent with the need tomaximise cash from such a deal to pay for his own class A drugs. The starting pointfor this component of the sentencing is appropriately reduced from 12 to eight months'imprisonment.3 R v Harrison HC Hamilton CRI-2007-019-8494, 14 November 2008.4 R v Fatu [2006] 2 NZLR 72 (CA).5 The only evidence was the terms of written communications reconstructed from Mr Standing'scell phone. He was not found in possession of any drugs.6 Zhang v R, above n 2, at [148].Breach of sentences of supervision[21] The Judge treated each period during which Mr Standing was charged withbreaching his earlier sentence of supervision separately. This reflected the terms ofthe charges as they were laid. The Judge imposed sentences of one month and sixweeks, in each case cumulatively, in respect of the period up to 4 July 2019 and fromthat date until 23 January 2020.[22] Mr Mooney submitted that a single sentence ought to have been imposed,given that the breach of supervision was one on-going course of conduct. Mr Standinghad explained to the Probation officer that it was caused by his electing to leave townto avoid associates who might encourage further offending.[23] If seen as one course of conduct, Mr Mooney submitted that one month'simprisonment would have been sufficient, particularly having regard to the impositionof special conditions which would follow from his release from prison, and be akin tothe sentence of supervision. Mr Mooney invited analogy with the decision of Kanutav R,7 in which the District Court had imposed an uplift of four months for a breach ofsupervision and breach of community work sentences. On appeal, Brewer J treatedthis as excessive and reduced the uplift to one month. Mr Mooney submitted that ifindeed the breach of supervision was seen as one on-going offence for the total of thetwo periods from late June 2019 to January 2020, then the Judge's sentence of twoand a half months relative to the maximum sentence of three months for such offendingwas not warranted given the circumstances.[24] Mr Bourke submitted that the Judge's approach in imposing cumulativesentences was correct, and that their extent was within the range available. Mr Bourkeinvited analogy with the judgment of Lang J in Dick v Police where the Court wasdealing with an appeal from sentencing for serious driving charges plus breaches of asentence of community work and a sentence of supervision, as well as failing to answerbail.8 Having dealt with the appeal from the sentence imposed on the driving charges,Lang J continued:7 Kanuta v R [2016] NZHC 436.8 Dick v Police [2014] NZHC 434.[21] This would leave an end sentence of two years imprisonment beforetaking into account the remaining charges. I consider that these require adiscrete uplift, because each represents a separate instance of Mr Dickdeliberately flouting orders imposed by the Court, or requirements made ofhim by the probation authorities. I consider that the most egregious of theseis Mr Dick's failure to attend community work on nine separate occasions. Iconsider that this warrants a cumulative sentence of two monthsimprisonment. I consider that cumulative sentences of one month'simprisonment each are warranted on the remaining two charges.[25] Mr Bourke was unable to clarify why those responsible for supervisingMr Standing's sentence of supervision had elected to bring two charges for whatamounted to one relatively lengthy period of non-compliance.[26] Possible rationales for imposing a longer cumulative sentence for the secondperiod of breach include the fact that the period to which the second charge relatedwas substantially longer or that, having committed a first breach for the period to4 July 2019, Mr Standing then re-offended so that any leniency justified for the firstoccasion could not be repeated.[27] However, whatever justification is offered, I am satisfied that a total of two andhalf months by way of cumulative sentences is more than was warranted. The twocharges might have been dealt with by way of concurrent sentences, with a total periodof one and a half months being 50 per cent of the maximum sentence for a singleoffence being sufficient.Re-sentencing on theft convictions[28] In R v Morgan, the Court of Appeal has provided guidance on re-sentencingwhere a community-based sentence has been breached:9[14] Where imprisonment is imposed in substitution for a community-based sentence, there will inevitably be a greater degree of hardship for theoffender. That is legitimate. In such a case, the offender will have had thebenefit of a less restrictive alternative than imprisonment but will have failedto take advantage of it. The re-sentencing Judge is likely to weigh the variouspurposes and principles of sentencing in a way that is different to that whichoccurred on the first sentencing. For example, where the community basedsentence was imposed because the sentencing Judge placed particular weighton the offender's rehabilitation, that factor may assume less weight on9 R v Morgan [2008] NZCA 232.re-sentencing given the offender's failure to comply with the community-based sentence.[15] Accordingly, while we accept that there must be some proportionalitybetween the sentence originally imposed and the substituted sentence, we donot consider that there can be any strict correlation between them, much lesssome mathematical formula. The essential point is that the substitutedsentence must be one that could properly have been imposed initially; and itmust be imposed against the background that a sentence of community workwas thought initially to be appropriate. [29] Mr Standing's theft of the two mountain bikes involved circumstancessomewhat akin to a breach of trust because he had access to a locked shed. In otherrespects, the thefts were unsophisticated and appear to have been relatively promptlydiscovered. The maximum sentence for theft of items valued between $500 and$1,000 is one year's imprisonment.10 I find concurrent sentences of four months'imprisonment for the theft offences (to be served cumulatively upon other sentences)were within the range available to the Judge. I am not concerned that the outcome onre-sentencing lacks proportionality with the original sentence.Uplift for previous convictions[30] The Judge uplifted the specific sentences by six weeks to take account ofMr Standing's previous convictions for breaching court orders, which he described as"quite extensive".[31] Mr Standing does have a relatively extensive record of previous offendingincluding dishonesty and property-based offences and breaches of court orders, whichoccurred most recently in 2005 and before that in 2001 and 1998-1999.[32] In Reedy v Police, this Court summarised the approach to imposing uplifts forprevious offending on sentencing:11[19] The principles in relation to uplifting the previous offending cantherefore be stated as follows:(a) there will be no uplift for the bare existence of previous convictions –to do so would be to punish offending more than once;10 The summary of facts indicates that a second-hand dealer paid $135 and $90 for the two mountainbikes.11 Reedy v Police [2015] NZHC 1069 (citations omitted).(b) The permissible lines of reasoning, justifying an uplift, fall into threebroad categories:(i) previous convictions bearing upon character and culpability;(ii) indication of predilection to offend in a specific way (anindicator of reoffending);(iii) the need to protect society by the imposition of a deterrentsentence.This necessarily requires the uplift to be firmly tied to specific aspectsof the offender's criminal history.(c) the uplift must remain proportionate to the starting point fixed by thesentencing Judge.(d) there is no fixed figure beyond which an uplift will be held to bedisproportionate. This is a matter to be determined, at first instance,by the sentencing judge having regard to all relevant factors(i.e. number, seriousness and nature of previous convictions, previoussentences imposed, time elapsed since the last conviction etc).[33] Generally, the longer the period of time that has elapsed since any relevantprevious offending, the less weight the Court is likely to give to previous convictionsas requiring an uplift.12 Here, the Judge may well have been troubled by all the currentoffending, suggesting a pattern of disregard by Mr Standing for the consequences ofsentences imposed on him. That is a legitimate concern. However, the previousconvictions for breaches of court orders are now between 15 and 21 years ago, for aman now aged 41. Given all the other considerations applying on the imposition of asequence of cumulative sentences, I am not persuaded that an uplift was warranted inthis case.Failing to appear[34] The Judge nominated starting points of a further cumulative one month'simprisonment for failing to appear on 2 October 2019, and two months' imprisonmentfor the failure to appear on 21 January 2020.[35] Apart from the general criticism that all starting points were excessive,Mr Mooney did not advance a separate ground for criticising this component of thesentencing.12 Cashmore v Police [2017] NZCA 508 at [11].[36] Given their part in the overall offending being considered at sentencing, and inlight of the adjustments I have accepted should be made to other components, I see nojustification for altering this component. A starting point on both convictions of acumulative period of three months' imprisonment remains appropriate.Need to consider totality[37] Section 85(2) of the Sentencing Act 2002 requires the Court to ensure, whenimposing cumulative sentences, that they do not result in a total period ofimprisonment wholly out of proportion to the gravity of the overall offending. In thiscase, the Judge did not acknowledge having considered totality at the end of hisanalysis on each of the component parts of the final sentence. In responding to theappeal, Mr Bourke submitted that the Judge may have had a totality adjustment inmind when, in the first component of the sentencing analysis, he reduced the startingpoint for the class A drug offending from two years to 12 months' imprisonment.However, there is no acknowledgement in the sentencing notes that that was theJudge's thinking. Given that the observation was at the beginning rather than the endof the sequence of sentencing considerations, I reject the suggestion that it constituteda totality adjustment.[38] In criticising the absence of a totality assessment, Mr Mooney submitted thatthe Judge should have made reference to the totality consideration. Mr Standing wasentitled to know the reasons for the Judge either making an adjustment to ensure thetotal period of imprisonment was not out of all proportion with the gravity of theoverall offending, or for not making such an adjustment. At the very least, onMr Mooney's argument, the absence of consideration of totality meant that the Courton appeal had to undertake that exercise for itself.[39] Given the merits of various aspects of the appeal, I have undertaken theanalysis of the constituent parts afresh, and that exercise is also necessary to undertakea totality analysis. On my re-evaluation, I consider the appropriate starting points areas follows:Convictions Starting pointsOffering to supply methamphetamine (x 2) 8 monthsRe-sentencing on theft convictions 4 monthsBreach of sentences of supervision 1.5 monthsFailing to appear (x 2) 3 monthsTotal 16.5 months[40] From that point, there is no issue that Mr Standing was entitled to a 25 per centdiscount for his early guilty pleas, resulting in an end sentence of 12.3 months, whichcan now be rounded down to 12 months.[41] I do not consider that the imposition of cumulative sentences to that extent,when allocated as I have proposed, results in an end sentence that is wholly out ofproportion to the gravity of the overall offending. The pre-sentence report presents aworrying picture of an offender who, in recent years, has reverted to a pattern of muchearlier behaviour where he is cavalier about compliance with community sentencesand court orders. The end sentence is accordingly warranted.[42] I allow the appeal and substitute for each of the sentences imposed in theDistrict Court the following cumulative sentences of imprisonment:Convictions Period of imprisonmentOffering to supply methamphetamine (x 2) 6 monthsRe-sentencing on theft convictions 3 monthsBreach of sentences of supervision 1 monthFailing to appear (x 2) 2 monthsTotal 12 monthsDobson JSolicitors:Mooney & Webb, New Plymouth for appellantCrown Solicitor, New Plymouth for respondent