Paul v R [2013] NZCA 45 (7 March 2013)

Last Updated: 13 March 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA332/2012 [2013] NZCA 45

BETWEEN WILLIAM GORDON PAUL Appellant

AND THE QUEEN Respondent

Hearing: 14 February 2013

Court: White, Simon France and Asher JJ

Counsel: A J S Snell for Appellant M J Lillico for Respondent

Judgment: 7 March 2013 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

2. The sentence is quashed and a sentence of seven years six months’ imprisonment is substituted.

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REASONS OF THE COURT

(Given by White J)

[1] Mr Paul appeals against his sentence of eight years four months’ imprisonment on charges of supplying methamphetamine, conspiring to supply methamphetamine and supplying cannabis.[1]
[2] Mr Paul was involved with a group of people supplying methamphetamine and selling cannabis over a six month period in 2010. Mr Paul pleaded guilty to these charges in October 2011, following committal and two trial call-overs in mid-2011.
[3] In sentencing Mr Paul in the High Court, Ronald Young J adopted a starting point of nine years for the methamphetamine offending and a cumulative sentence of eighteen months’ imprisonment for the cannabis offending. The combined starting point was therefore ten and a half years’ imprisonment.[2]
[4] The Judge then deducted a 20 per cent discount for early guilty pleas, but declined to make any other discount.[3]
[5] In support of Mr Paul’s appeal, Mr Snell accepted that the starting point was appropriate, but submitted that the sentence was manifestly excessive on two grounds:

(a) Mr Paul ought to have been given a further discount to reflect his remorse and rehabilitation efforts; and

(b) he ought to have been given the full discount of 25 per cent for his guilty pleas.

[6] We consider each ground in turn.

Discount for remorse and rehabilitation

[7] On this issue Ronald Young J said:

[51] I accept that you have made efforts to rid yourself of your addiction. And I express the hope that this will be successful. If it is it will be hugely advantageous to you on your release from prison and of course if you have made progress and continue to do so, it will be advantageous to you in prison and relevant to parole. But it does not convince me that you should have a discount from your start sentence.

[52] You have a history of crime and drug offending. You cannot claim to come to Court as a first offender. Whether you stay crime free is yet to be proven. I also express, however, my view that you should be provided by Corrections with the earliest opportunity for your drug rehabilitation in prison.

[8] Mr Snell submitted that the Judge had erred in failing to recognise that, as recorded in Mr Paul’s pre-sentence reports and other information before the Judge, Mr Paul was clearly remorseful and had not only attended individual alcohol and drug counselling sessions in Napier in 2011 but had also successfully completed a four month residential Salvation Army Bridge programme in Wellington before he was sentenced in May 2012. Mr Snell emphasised that Mr Paul had left his family and job in Napier to attend the programme in Wellington, which was in fact paid for by his employer. Mr Snell also pointed out that Mr Paul’s Salvation Army counsellor had provided a particularly positive report on his completion of the Bridge programme which included references to Mr Paul’s changed attitude and acceptance of responsibility for his offending. Mr Paul’s employer provided a supportive work reference confirming the decision to take the “unusual step” of agreeing to pay for the Bridge programme and indicating an intention to continue to support Mr Paul after his release from prison. The employer also mentioned Mr Paul’s deep remorse for his offending.
[9] With the benefit of perhaps more detailed submissions than the sentencing Judge had, we agree with Mr Snell that in the circumstances of this case Mr Paul, who appeared genuinely remorseful and undertook a meaningful rehabilitative programme in the face of a lengthy term of imprisonment, deserves appropriate recognition for doing so. The positive steps taken by Mr Paul take his case out of the category of a person paying merely lip service to the concepts of remorse and rehabilitation. In this case Mr Paul, who accepted that a lengthy term of imprisonment was inevitable, nonetheless took the unusual step of leaving his family and job to attend the programme in Wellington. Recognition of such steps provides an appropriate incentive and is consistent with the purposes and principles of sentencing.
[10] We acknowledge, as Mr Lillico submitted for the Crown, that the personal circumstances of the offender, for those convicted of dealing commercially in controlled drugs, must be subordinated to the importance of deterrence.[4] But at the same time, as Mr Lillico also recognised, the importance of deterrence cannot of itself preclude any consideration of personal factors.[5] Here in our view, in addition to the need for deterrence, Mr Paul’s personal circumstances did warrant further consideration.
[11] We consider that Mr Paul was entitled to some recognition for his remorse and rehabilitation efforts by way of an appropriate discount. We assess the discount at six months which would reduce the sentence from the starting point of ten and a half years to ten years’ imprisonment.

Discount for guilty pleas

[12] There is no dispute on the basis of the Supreme Court decision in Hessell v R[6] that Mr Paul is entitled to a credit for his guilty pleas reflecting all the circumstances in which the pleas were entered, including whether they might truly be regarded as early or late and the strength of the prosecution case, and should not exceed twenty-five per cent.
[13] In Mr Paul’s case the relevant sequence of events is that following his offending between July and December 2010 his committal was on 5 May 2011 with a first call-over on 5 July 2011. The second call-over occurred on 16 August 2011 and in early September 2011 counsel for Mr Paul raised with the Crown his willingness to plead guilty to the charges to which he eventually did. His formal pleas of guilty were then entered on 26 October 2011.
[14] At the second call-over on 16 August 2011 Miller J recorded in a minute of that date that:[7]

[3] There are no other interlocutory applications at this stage. Mr Snell [for Mr Paul] signalled that there are some residual issues about disclosure, which he expects to resolve with the Crown.

...

[5] At this stage there have not been discussions among counsel about pleas, except to Mr Jeffares. It is likely that his position will be resolved by agreement. The accused have not yet been arraigned, a number of them not having been present today, but I record that the point at which they can be assured of a full discount for pleading guilty has now passed.

[15] In deciding to give Mr Paul a 20 per cent discount for his guilty pleas, Ronald Young J said:

[55] For the reasons given, therefore, I think the appropriate start point for you is ten and a half years’ imprisonment. You pleaded guilty on 26 October 2011 and it was signalled in September of that year. It was the earliest plea of a guilty and therefore you are entitled to the greatest discount. You are though not entitled to the fullest discount. As Miller J noted, this passed in August 2011. You pleaded guilty several months after the maximum 25 per cent discount could be given.

[16] Mr Snell submitted that the Judge erred in three principal respects in failing to recognise that:

(a) Mr Paul’s plea had been indicated at the first opportunity after the prosecution had completed its disclosure of the relevant code to enable counsel to be able properly to access the content of the prosecution computer discs previously supplied and to assess the strength of the Crown case before advising Mr Snell;

(b) Mr Paul was the first of six offenders to plead; and

(c) Miller J’s reference to being “assured” that the point at which there would be a full discount for pleading guilty had passed did not necessarily preclude a full discount in appropriate circumstances.

[17] Again, having had the benefit of further submissions on the issue than Ronald Young J had, we agree with Mr Snell that his client was entitled in the circumstances of this case to a discount of 25 per cent for his guilty pleas. An accused, particularly one facing a term of imprisonment,[8] is entitled to the benefit of informed legal advice, including an assessment of the strength of the prosecution case, before entering a plea. In this case, as Miller J appears to have recognised in his minute, Mr Snell was unable to give that advice until there had been full disclosure by the prosecution and he had access to the information on the prosecution computer discs. Once he had that access and was able to give Mr Paul appropriately informed advice, the indication of his proposed guilty pleas was given at the first available opportunity.
[18] Mr Paul was also the first of the offenders to plead and this justified a higher discount than the 20 per cent given to two of his co-offenders, who pleaded guilty significantly later, in March the following year.[9]
[19] We do not read Miller J’s reference to being “assured” that the time for a full discount for pleading guilty had passed meant that he was intending to preclude a discount of 25 per cent being considered for Mr Paul if the circumstances of his case in fact justified a discount at that level. Nor would Ronald Young J have read it in that way or felt constrained by it if circumstances justified a departure.

Result

[20] Accordingly, in our view when the need to adjust the sentence for both discounts is taken into account the end sentence imposed on Mr Paul in the High Court was manifestly excessive. The sentence based on a starting point of ten and a half years’ imprisonment should have been reduced by six months for Mr Paul’s genuine remorse and positive steps towards rehabilitation to ten years’ imprisonment and then by a further 25 per cent for Mr Paul’s guilty pleas to produce an end sentence of seven years six months’ imprisonment.
[21] The appeal against sentence is therefore allowed, the sentence imposed in the High Court is quashed and a sentence of seven years six months’ imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Singh HC Napier CRI-2010-041-3793, 10 May 2012.
[2] At [53]–[55].
[3] At [56].
[4] R v Jarden [2008] NZCA 69, [2008] 3 NZLR 612 at [12].
[5] McMillan v R [2011] NZCA 442 at [16].
[6] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74]–[77].
[7] R v Ngaronoa HC Napier CRI-2010-041-3793, 16 August 2011.
[8] Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [23].
[9] R v Singh, above n 1, at [62] and [78].