STILES v POLICE [2016] NZHC 2098

STILES v POLICE [2016] NZHC 2098 [5 September 2016]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2016-488-21[2016] NZHC 2098BETWEEN THOMAS ERIC TAMAHA STILESAppellantAND NEW ZEALAND POLICERespondentHearing: 5 September 2016Appearances: M P Hislop for the AppellantJ W Wall for the RespondentJudgment: 5 September 2016ORAL JUDGMENT OF MUIR J (Sentence Appeal)Counsel/Solicitors:M P Hislop, Barrister, AucklandJ W Wall, Crown Solicitor, WhangareiIntroduction[1] The appellant Mr Thomas Stiles was convicted of four charges before Judge Hunt on 6 May 2016 including two charges of possession of cannabis, one of dangerous driving and one charge of possession of methamphetamine for supply. He was sentenced to three years one months' imprisonment on the lead charge of methamphetamine for supply, and concurrent sentences of two months'imprisonment in relation to the cannabis and one month imprisonment with a 12 month disqualification on the driving charge.[2] He appeals on grounds which in Mr Hislop's written submissions included achallenge to the starting point as manifestly excessive and on the further grounds that there should not have been an uplift for his prior drug related offending and that insufficient weight was given to his remorse and rehabilitation efforts.Factual background[3] Mr Stiles' property was searched at around 10 am on 20 February 2016 pursuant to a warrant obtained by the police in relation to suspected manufacture of methamphetamine. The police found large amounts of cash in Mr Stiles' possession and in his car which have subsequently been forfeited. In the car they found $30,000 in $5,000 bundles hidden and on his person $2,457. The police also found 8.4 grams of methamphetamine, 20 cell phones, 90.18 grams of vacuum packed cannabis, two knives, scales, and various snap-lock bags.[4] In respect of the dangerous driving charge the relevant facts were Mr Stiles was stopped on an earlier date travelling at 120 kms/hr in a 70 km/hr permanent speed zone in Kaikohe. His explanation was that his speedometer was broken.History of offending[5] Mr Stiles has a history of methamphetamine dependence and related offending. In total he has 63 prior convictions, 15 of which relate to drug offending. Among those are convictions for possession of methamphetamine in 2005, 2008, 2010 and 2011.[6] He also has a number of serious driving convictions including driving while impaired in 2011, dangerous driving in 2010, reckless driving in 2011, sustained loss of traction 2008, and dangerous speeding in 2003, to highlight only some of these offences.[7] In 2011 he was sentenced to 11 months home detention for a combination of charges relating to methamphetamine, including possession of equipment and materials, receiving and firearms charges. That sentence concluded in February 2015 and he was subject to probation for much of that year.District Court Decision[8] In a very thorough and, in my assessment, humane consideration of Mr Stiles'history, psychological issues and drug dependence, the learned District Court Judge adopted a starting point of three years and 10 months on the methamphetamine offending, taking into account the quantity of methamphetamine and the indicia of commerciality including the large amount of cash and other dealing paraphernalia, including snap lock bags and scales. He reviewed thoroughly Mr Stiles' history ofprior methamphetamine offending. He observed a pattern of escalating sentences. He noted the number of opportunities which had been extended to the defendant by way of sentences of short imprisonment, including intensive supervision and MrStiles' failure adequately to engage in the services available. He said that "youshould have and could have sought out help before you got to the point where youengaged further in this offending", and noted that at 41 years of age the defendantdid not have available to him the excuses in terms of immaturity often advanced on behalf of young offenders".1 He imposed an uplift of four months for Mr Stiles'prior offending.[9] He declined to give a discrete discount for remorse and rehabilitation, because, as he observed, although Mr Stiles did demonstrate some remorse in correspondence with the Court and had taken some steps towards addressing his addiction and underlying psychological problems, they did not, in the context of1 R v Stiles [2016] NZDC 9736, at [10].particularly of his offence history and the rapid re-offending within a short period of the cessation of probation, warrant an additional discount.[10] Mr Stiles was, however, given a 25 per cent discount for his early guilty plea, despite an overwhelming case against him and in circumstances where, in my view, other judges may, on account of that case, have allowed somewhat less. He imposed concurrent sentences for the other charges faced by Mr Stiles and did not adopt a totality uplift on account of them.Approach on appeal[11] Section 250(2) of the Criminal Procedure Act 2011 (the Act) states that the Court must allow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[12] In any other case, the Court must dismiss the appeal.2[13] Significantly, the High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. The overriding consideration is whether the sentence is manifestly excessive and that is to be examined in terms of the sentence given, rather than the process by which the sentence was reached.3Submissions[14] As he did before the District Court, Mr Hislop has ably made every responsible argument that could be advanced the defendant's behalf. In his written submissions he submitted that a starting point of three years only was appropriate and in line with authorities on possession of methamphetamine for supply. He cited2 Criminal Procedure Act 2011, s 250(3).3 Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].a number of cases for that submission, highlighting that, where higher starting points had been adopted, there is often evidence of actual supply to others, involving text records and the like. In his oral submissions today, however, Mr Hislop responsibly concedes that Judge Hunt's starting point of three years and 10 months'imprisonment was within range. I agree with that concession for reasons which I will briefly outline later in my judgment.[15] In his written submissions he further submits that no uplift for prior offending was necessary, given that it was all relatively low-level and the Court should guard against imposing a sentence which amounts to double punishment.[16] In his oral submissions today, however, Mr Hislop focuses predominantly on the issues of remorse and rehabilitation, and particularly on the fact that in respect of rehabilitation Mr Stiles has sought private assistance from clinical and consulting psychologist Mr Gary McFarlane-Nathan. He emphasises that although Mr McFarlane-Nathan was consulted prior to the relevant offending and saw Mr Stiles on three occasions in November and December 2015 and January 2016, he has continued with psychological assistance while Mr Stiles has been on remand despite very significant difficulties in so doing.[17] Mr Hislop also emphasises Mr Stiles' remorse as identified in his undatedcorrespondence to the District Court.[18] For the Crown Mr Wall submits:(a) That in relation to the starting point the authorities relied on by the appellant are distinguishable in that they relate to offenders who have played a lesser role in a joint enterprise,4 involved lesser quantities of methamphetamine,5 or have exhibited "unusual circumstances".64 See, for example: R v Jackson [2013] NZHC 2194; R v Strachan [2013] NZHC 1711; R v Waddell [2013] NZHC 3339.5 R v Wilson HC Auckland CRI-2010-057-001676, 13 September 2011, Venning J.6 R v Ike Kingi [2013] NZHC 2051.(b) That the sentencing judge was correct to consider not only the quantity of methamphetamine found but also the surrounding circumstances, including the large amounts of cash identified and the numerous cell phones and associated paraphernalia of dealing to conclude that this was a commercial operation of relatively moderate size.(c) That in accordance with the lower end Fatu7 Band 2 authorities summarised by Wylie J in R v Tuana Kingi8 the starting point was within the available range.(d) That an uplift was appropriate on account of previous offending (as was indeed conceded by the defendant in the District Court) on the principles distilled by Dunningham J in Reedy v Police.9(e) That there was no error in not allowing a discrete discount for childhood abuse because there was no nexus adequately establishedbetween that and the appellant's offending nor meaningful guidanceas to how a discount (which Mr Wall says would nevertheless be modest at best) might be calculated.(f) That the District Court Judge was entitled to take a sceptical view ofthe appellant's efforts towards rehabilitation given the multiple squandered opportunities in the past.Discussion[19] My analysis inevitably starts with the Court of Appeal's tariff decision in R v Fatu which relevantly established that for offending within Band 2 involving"supplying commercial quantities" of between five and 250 grams the starting point ranges between three and nine years' imprisonment.10 Mr Hislop's written7 R v Fatu [2006] 2 NZLR 76 (CA).8 R v Tuaru Kingi HC Whangarei CRI-2010-088-002612, 27 July 2011,Wylie J.9 Reedy v Police [2015] NZHC 1069.10 R v Fatu, above n 7 at [34].submissions would have had this case placed at the very lowest point in that range inviting a starting point of three years' imprisonment.[20] As the Court of Appeal noted in that case, however, where an offender sits in the band depends not just on the quantity of methamphetamine in the defendant'spossession but also the role played by the offender.11[21] That seems to me to be a particularly apposite observation in the present case, which in my view has many similarities with the decision in Vesey v R12 relied on by Judge Hunt in the decision under appeal. In that case Moore J on appeal specifically eschewed a formulaic approach focused exclusively on the quantity of methamphetamine identified (in that case 4.3 grams). In upholding the DistrictCourt's starting point of four years' imprisonment His Honour said:[30] The starting point adopted by the Judge was within the range available to him. Even based on the most conservative estimate of 4.3 grams the amount of the drug involved places the offending towards the top of Band 1. However, a broader and more practical evaluation of totality makes it plain in my view that Mr Vesey supplied a considerably greater amount. Certainly, such a conclusion was open to the sentencing Judge.[22] Likewise in this case, the District Court was in my view correct to focus on the very substantial sums of cash, the scales, snap lock bags and the multiple cellphones in a "broader and practical evaluation of totality". In that sense it wascertainly open to the Judge to infer an element of fortuitousness in the comparatively small quantity of methamphetamine actually identified.[23] Against that background I consider that Mr Hislop's concession today that thestarting point was not manifestly excessive is a responsible and appropriate one. I consider that the starting point of three years and 10 months was in range and I identify no relevant error in that respect.[24] Indeed, I consider a small uplift could have been factored into that starting point to reflect the totality of Mr Stiles' offending having regard particularly to the dangerous driving charge. That uplift could have been in the range of one to two11 At [31].12 Vesey v R [2016] NZHC 557.months. That reinforces me in my conclusion that the Judge's starting point cannot be considered manifestly excessive.[25] I also consider the uplift of four months for his prior offending was within range. I do not accept that his prior convictions for methamphetamine offending can be as readily dismissed as Mr Hislop suggests in his written submissions. In fact they show a long term pattern of involvement that is escalating in seriousness. In my view therefore each of the permissible lines of reasoning identified by Duningham J in Reedy v Police are engaged. Further, I agree with Judge Hunt that Mr Stiles hashad multiple opportunities to, in the Judge's words to, "[step] back from [your] drug related offending and that [you] have not taken advantage of those" and further that"with knowledge of all the assistance you have been provided" you have resorted to drug related offending "within a short time of coming off post release conditions". The need to protect society clearly featured in his Honour's decision and in my viewjustified the uplift he imposed.[26] I come then to what really is the essence of this sentence appeal and that relates to whether the Judge should have allowed a discount for any or all of remorse, rehabilitation or personal circumstances.[27] Mr Stiles' personal circumstances are unfortunate. I do not intend to recountthem in the context of this judgment. But as Mr Wall says in his submissions there is no reliable basis upon which a Judge could conclude that these circumstances contributed to his offending. Nor is there any meaningful guidance available to what would inevitably be a very modest discount in respect of them.[28] Although in a case of offending such as this it cannot be said that personal circumstances are never relevant, the Supreme Court has emphasised in Jarden v R13that in all sentencing involving commercial dealing in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence.[29] In relation to remorse, the learned District Court Judge acknowledge theremorse identified in the defendant's correspondence but he did not consider it13 Jarden v R [2008] NZSC 69.warranted an additional credit beyond that implicit in his guilty plea for which a full discount of 25 per cent was allowed.[30] The Supreme Court has held that if a defendant demonstrates genuine remorse on a robust evaluation of all of the circumstances a separate credit can be given to it in addition to a guilty plea.14 Such discount is often in the order of five per cent.[31] I do not identify any error within the terms recognised by s 252 of the Act in not allowing a discrete discount for remorse.[32] The discount for guilty plea was, as I have indicated, possibly generous given what can only be described as an overwhelming case against Mr Stiles. Moreover, although his correspondence is suggestive of some remorse, such cannot be considered in isolation from his continued offending so very soon after release from parole conditions and indeed, as I will come to shortly, continued offending despite psychological interventions.[33] In relation to rehabilitation I accept Mr Hislop's submissions from the Barthat in addition to the two interventions while Mr Hislop has been in custody there have been additional meetings with Mr McFarlane-Nathan since that time. What isespecially concerning, however, about Mr Hislop's rehabilitative efforts is the factthat he continued offending at a time when he was in fact undertaking counselling. As I have said, that issue informs my assessment of the robustness of the demonstrations of remorse.[34] Ultimately each of these factors, remorse, rehabilitation and personal circumstances, must be considered in the context of whether the end sentence of three years and one month were within range. Other judges may have allowed a discount in respect of remorse or rehabilitation. It would have necessarily been modest. Such Judges may have likewise allowed a lesser discount than 25 per cent or they may have imposed a totality uplift for the other offending or indeed have imposed a cumulative sentence at least in respect of the dangerous driving charge.14 Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63] – [64].[35] I am mindful of the numerous authorities which caution me against"tinkering" with sentences on appeal and which emphasise that error in the sense identified in the Act must be identified.[36] In my view, the very modest further concessions sought and which another sentencing Judge may have allowed fall firmly into the category of tinkering. In myview the overall end sentence of three years and one month's imprisonment properly reflects the totality of Mr Stiles' offending, the composite of the mitigating circumstances which were available to him and the overall commerciality of his enterprise. I am satisfied that it fulfilled the deterrent purpose which must always be at the forefront of sentencing for those who deal commercially in methamphetamine given, as has often been remarked by this Court, the seemingly limitless capacity of that particular drug to destroy lives. I am particularly mindful of the SupremeCourt's observations in Jarden referred to in [28] above.Result[37] I therefore dismiss the appeal.[38] In reading the materials before me I do, however, identify some hope for Mr Stiles and I wish him every success in addressing his addiction and rehabilitation.__________________________Muir J