[1] The manner in which the appellant was driving on 22 June 2008 led to his vehicle being stopped and then searched by the police. As a result of the search, the police found a bag containing 7.4 grams of methamphetamine divided into snaplock plastic bags, $6,714 in cash, a double-bladed knife, empty snaplock bags and digital scales. The appellant was charged and ultimately pleaded guilty to selling methamphetamine, possession of methamphetamine, possession of an offensive weapon and driving whilst forbidden. He was sentenced on 20 August 2009 by Judge David Harvey to a term of imprisonment of three years.[1]
[2] He appeals against sentence on the basis the sentence was manifestly excessive. The appeal focuses primarily on the starting point adopted by Judge Harvey and on the discount given for mitigating circumstances.

Sentencing remarks

[3] Judge Harvey treated the charge of selling methamphetamine as the lead offence. The Judge adopted a starting point of three and a half years imprisonment because of the quantity of methamphetamine and the associated paraphernalia. The starting point was uplifted by a further six months because there was a weapon associated with the offending.
[4] In terms of mitigating features, the Judge gave credit for the appellant’s early guilty plea and for the fact the appellant’s health problems would make imprisonment harder. From the starting point of four years imprisonment, a discount of 12 months was adopted giving an end sentence of three years. A concurrent term of six months imprisonment was imposed for possession of the knife. On the counts of possession of methamphetamine and driving whilst forbidden, the appellant was convicted and discharged.

Issues on appeal

[5] We deal with the appeal by considering the following issues in turn:

(a) The appropriateness of the four year starting point. Associated issues are how the Judge treated the fact the appellant had drug paraphernalia in his car and the uplift for possession of the knife; and

(b) The appropriateness of the discount for mitigating factors.

Was the starting point appropriate?

[6] The appellant submits that, particularly given the amount of methamphetamine involved, a lower starting point should have been adopted.
[7] Ms Dyhrberg on behalf of the appellant developed this submission, first, by reference to a number of High Court sentencings which she argued involved lesser terms of imprisonment for more serious offending. Second, Ms Dyhrberg submits it was incorrect to treat the quantity involved as 7.4 grams. The appellant was initially charged with possession for supply in relation to the 7.4 grams but that count was ultimately reduced to one of simple possession. Therefore, Ms Dyhrberg says, the appellant should have been sentenced on the basis that the selling charge reflected the appellant’s possession of the cash sum of approximately $6,700. Assuming sales at $100 per gram, the appellant should have been treated as having sold some 6.7 grams of methamphetamine.
[8] Third, the appellant challenges the appropriateness of the Judge’s reference to drug paraphernalia. Ms Dyhrberg suggests this has been treated, wrongly, as an aggravating factor when setting the starting point. Finally, the appellant says the uplift for the presence of the knife was excessive given this was not the worst sort of weapon.
[9] As the respondent submits, the quantity of methamphetamine involved was such that the Judge correctly placed the offending within band two of R v Fatu.[2] That is the guiding authority and reference to other, individual, cases in the High Court does not assist.
[10] Band two of Fatu is appropriate for sale or supply of commercial quantities of methamphetamine (5 to 250 grams). Starting points within that band range from three to nine years imprisonment. There can be no real challenge to the placement within that band adopted by the Judge, whether the correct amount of methamphetamine was 6.7 or 7.4 grams. The presence of drug paraphernalia was properly treated as a matter to be considered in evaluating the totality of the offending and we see no error in the Judge’s approach to that factor. Finally, some uplift was appropriate to recognise the additional seriousness of this sort of offending when weapons are involved. The uplift adopted was within the available range.
[11] We add that Ms Dyhrberg suggested that the 6.7 gram figure could be further reduced because the purity of the drug was unknown and so should be treated as being in the region of 70 per cent. However, the sentencing bands in R v Fatu apply by reference to the weight of the drug that the market would treat as “P”, that is, “a form of the drug in which the purity is of the order of, or exceeds, 60 per cent”.[3] This point does not advance the appellant’s case.

Discount for the mitigating features

[12] Ms Dyhrberg submits that, on the basis of R v Hessell,[4] the appellant was entitled to a 33 per cent discount for his early guilty plea. Essentially, she says the appellant pleaded guilty at the first available opportunity. In addition, the appellant argues he was entitled to a further discount for his health difficulties. Ms Dyhrberg notes the Judge acknowledged the health concerns but says the discount given was insufficient to reflect this further factor.
[13] As to other mitigating factors, Ms Dyhrberg says that while the appellant did not discuss his drug use and addiction with the pre-sentence report writer because of his “current charges” he did acknowledge his addiction and willingness to undergo treatment in the submissions filed on his behalf at sentencing. The Judge’s reliance on the appellant’s approach to the report writer has meant, Ms Dyhrberg says, that no consideration was given to the appropriateness of a rehabilitative sentence which ought to have further reduced the final term of imprisonment.
[14] The respondent submits that, even on the basis of Hessell, the appellant was only entitled to a discount of approximately 20 per cent. That is because the guilty pleas were entered on the morning of depositions. On that analysis, Mr Raftery submits there was a discount of just over two months for the appellant’s medical condition. The respondent says that was within the available range given the nature of that condition. Finally, Mr Raftery submits that although the appellant’s position had changed somewhat at sentencing, it is not apparent that he expressed a willingness to undergo rehabilitative treatment.
[15] The appellant was sentenced prior to this Court’s decision in Hessell which therefore does not apply.[5] That probably explains why the Judge dealt with the discount on a global basis although Hessell confirms that a discount is to be seen as a discrete mitigating factor and as the final step in the sentencing process.[6]
[16] In terms of the mitigating factors other than the guilty plea, we note that the appellant is 48 years old. He suffers from chronic psoriasis and arthritis. The medical reports provided on sentencing suggest the psoriasis has been difficult to treat and that prior to sentencing he was attending hospital as an outpatient three times a week for treatment. The pre-sentence report writer notes the appellant’s advice that he was in receipt of the invalids benefit because of his psoriasis and arthritis.
[17] The nature of the appellant’s medical condition is not such as to necessitate a more generous discount than that given by the Judge. A discount of 50 per cent was given in R v Verschaffelt[7] for the appellant’s guilty plea and serious medical condition. But the appellant’s medical condition in that case was such that it could not be managed within the prison environment. In the present case, the appellant’s condition while no doubt painful, is in a different category.
[18] An issue was raised about the impact of the appellant’s move to a different prison and about his ability to obtain the medication he needs for his skin condition. Counsel agreed we should receive information from the prison authorities about these matters. The advice we have from the Acting National Manager of Prison Services is that the appellant can have access to a doctor and to hospital treatment if required and that his medication is available to him in prison. We need take that matter no further.
[19] As to a commitment to rehabilitation, the Judge was entitled to give less or little weight to the appellant’s indications at sentencing. The appellant did not point to any treatment programme or similar measure being undertaken. Further, what was said at sentencing could fairly be balanced against the appellant’s unwillingness even to discuss the offending with the pre-sentence report writer.
[20] We turn then to the discount for the guilty plea. The appellant was charged with these offences on 23 June 2008. He pleaded guilty to the three main charges on the day depositions were to take place, on 2 December 2008. He pleaded guilty on 16 December 2008 to the driving whilst forbidden charge.
[21] The overall discount for mitigating factors was 25 per cent. Assuming a small discount for the appellant’s medical condition, on the authorities applicable at the time, for example, R v Fonotia,[8] and R v Walker,[9] the discount for the guilty plea was at the lower end of the available range but was one open to the Judge.

Disposition

[22] For these reasons the appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] DC Auckland CRI-2008-004-014148.
[2] R v Fatu [2006] 2 NZLR 72 (CA).
[3] At [30].
[4] R v Hessell [2009] NZCA 450.
[5] Hessell at [76].
[6] At [21]-[22].
[7] R v Verschaffelt [2002] 3 NZLR 772 (CA).
[8] R v Fonotia [2007] 3 NZLR 338 (CA) at [50]–[51].
[9] R v Walker [2009] NZCA 56 at [19].

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/109.html