Reid v R [2013] NZCA 89 (27 March 2013)

Last Updated: 3 April 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA697/2012 [2013] NZCA 89

BETWEEN CRAIG STEWART REID Appellant

AND THE QUEEN Respondent

Hearing: 7 March 2013

Court: Ellen France, Keane and Miller JJ

Counsel: D G A Reece for Appellant J M Jelas for Respondent

Judgment: 27 March 2013 at 1 pm

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed.
2. The sentence of four years, nine months imprisonment is quashed and a sentence of four years imprisonment substituted. The concurrent six month sentences will stand.
   

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REASONS OF THE COURT

(Given by Keane J)

[1] On 5 October 2012 Craig Reid was sentenced in the District Court, Auckland, to imprisonment for four years, nine months, for possessing for supply 27.67 grams of methamphetamine on 17 February 2011 and 15 grams on 20 April 2011.[1] He was sentenced to six months imprisonment concurrently for possessing pipes.
[2] On this appeal Mr Reid contends that his sentence is manifestly excessive because the sentencing Judge, Judge Wade, took too high a starting point, five years, and increased that excessively by 18 months to six years, six months, because he had offended while on post home detention conditions and bail. Conversely, he contends, the Judge gave him too slight a discount for remorse and an insufficient credit for the effort he had made to rid himself of his addiction.
[3] The Crown contends that the Judge’s starting point and the uplift he made are not manifestly excessive but that the credit he allowed Mr Reid for rehabilitating himself was at the lowest end of the range.

Offences

[4] On 17 February 2011, according to the statement of facts on sentence, which differs from that we received on the appeal, Mr Reid drove a truck to a North Shore address just as the police were completing a search without warrant under the Misuse of Drugs Act 1975. He threw a fabric glasses case and a bottle of pepper spray out the passenger side window. Inside the glasses case was methamphetamine in three snap lock bags, pocket scales and two glass pipes.
[5] Mr Reid and his truck were then searched without warrant and he was found to have on him, or in various parts of the truck, 27.67 grams of methamphetamine, said to be worth on the street $16,800–$27,000. In his wallet was $5,410 cash, mostly in $20 and $50 notes. In a black bag was $600 cash. Mr Reid was charged with the related offences and remanded on bail.
[6] On 20 April 2011, according to the related statement of facts we also received on the appeal, as to which there is no issue, the police executed a search warrant at Mr Reid’s bail address, and found him asleep. Next to him in a shoulder bag were digital scales and a metal tin containing a large number of empty snap lock bags. In 15 separate snap lock bags they found some 15 grams of methamphetamine. Elsewhere they found a small amount of cash and a number of glass pipes.

Pre-sentence report

[7] According to Mr Reid’s pre-sentence report he was at medium risk of re-offending. He had offended while on post home detention conditions, having not long before completed a 12 month sentence, imposed on 10 March 2009, for methamphetamine manufacture in 2006–2007, and for possessing equipment and materials to manufacture.
[8] Mr Reid’s report also said that, on his own account, he had relapsed into methamphetamine use while working as a digger operator, to cope with increasing work. He had hoped to control his use but it had escalated. After his arrest he had entered the Higher Ground program and at the date of his report was attending between two and four Narcotics Anonymous meetings each week. (He attended Higher Ground as a term of bail imposed by the High Court and on sentence his Narcotics Anonymous sponsor, who had managed the house in which he had lived after leaving the program, confirmed he had remained compliant.)[2]
[9] Mr Reid’s report nevertheless recommended, having regard to the seriousness of his offences, which had been aggravated by breaches of his home detention release conditions and his bail, that he be sentenced to imprisonment. It also noted that he was capable of serving a further sentence of home detention.

Starting point

[10] On sentence the Judge said that, because Mr Reid had offended twice identically, and in the second instance while on bail, he ought to be sentenced to cumulative terms of imprisonment. However, the Judge accepted both the Crown and defence submissions that he should impose concurrent sentences increased to take account of the breaches of bail and of post home detention conditions.
[11] The quantity of methamphetamine in issue, 42.67 grams, the Judge said, placed Mr Reid in band two R v Fatu,[3] which for possession for supply of 5–250 grams of methamphetamine sets starting points in the range three–nine years. The Judge took a five year starting point; as he described it, “a low starting point if anything”.[4]
[12] On sentence the Crown relied on R v Shelton,[5] where a five and a half year starting point was taken for possession for supply of 23.76 grams of methamphetamine, and for supply reflecting cash proceeds totalling some $20,000 and assumed total supply of 44 grams. To contend for a four year starting point Mr Reid’s counsel relied on a series of cases, two of which were decisions of this Court.[6] On this appeal he relied on one other.
[13] In deciding where in band two Mr Reid’s offending lay, the Judge was alert to the need to align his starting point with that taken in analogous cases to which he was referred and we have reviewed those cases ourselves. Most involved starting points in the four year vicinity but, as Shelton illustrates, starting points for this level of offending can range higher.
[14] We conclude that when Mr Reid’s offending is contrasted with that in those cases, the starting point the Judge adopted was within his discretion. It was not, however, as he said, “low ... if anything”.[7] The contrary is the case. It was at the upper extremity of his discretion.

18 month uplift

[15] On sentence, we understand, both counsel submitted that the breaches aggravating Mr Reid’s offending might warrant a 12 month uplift at most. The Judge was not bound by that and he concluded that those breaches were “very serious aggravating features”,[8] requiring an 18 month uplift to six and a half years imprisonment.
[16] On this appeal Mr Reece contends that this uplift was excessive given the high starting point the Judge had adopted and the fact that Mr Reid’s breaches are explained, if not excused, by the fact that in the month during which he offended twice he remained in the grip of his addiction. It is not unknown in such circumstances, he submitted, for no uplift to be made. In effect, Mr Reece submits, the Judge did sentence Mr Reid cumulatively and as a matter of totality no more than a five and a half year sentence before mitigating factors would have been proportionate.
[17] Counsel for the Crown, Ms Jelas, contends that this increase was proportionate but we are unable to agree. By the uplift he made from an already high starting point the Judge increased Mr Reid’s sentence, before mitigating factors, by 30 per cent. We consider a 12 month uplift was appropriate.

Discounts for remorse, rehabilitation and plea

[18] The Judge declined to allow Mr Reid any discount for remorse precisely because of the breaches that aggravated his offences to which we have just referred and in that we consider he was correct, even if Mr Reid did show remorse later.
[19] The Judge did accept that Mr Reid was entitled to credit for “genuine efforts” to rid himself of his addiction and to recognise the “rigours” of the Higher Ground program to which he had been subject.[9] But that, the Judge held, could only be a “small deduction”.[10] He allowed Mr Reid six months.
[20] That deduction, Mr Reece submits, relying on two cases to which the Judge was not referred,[11] failed to reflect the concerted effort Mr Reid had made to wean himself from his addiction. The High Court had allowed him the opportunity on bail to enter a residential program.[12] He had entered Higher Ground, a residential program, and had lived in supervised housing afterwards. In this, and in attending Narcotics Anonymous assiduously, as his sponsor’s letter confirmed, he had taken full advantage of the opportunity allowed him.
[21] For the Crown Ms Jelas contends that the 10 per cent deduction the Judge allowed Mr Reid on this account involved no error of principle and was within his discretion. She does accept that this deduction was at the lowest level and that there have been instances where this Court has endorsed higher discounts.[13]
[22] For the reasons Mr Reece has given we consider Mr Reid was entitled to a larger deduction. Where an offender responds as well as Mr Reid did to an opportunity afforded him on bail, we consider that should be marked in a real way on sentence. Mr Reid, we consider, deserved a discount of 12 months.
[23] There is no challenge on this appeal to the 20 per cent discount the Judge allowed Mr Reid for his plea and in this too, we consider, the Judge was correct. In contrast to the Judge, however, we make that discount last in order. The upshot is that Mr Reid’s sentence will reduce to one of four years.

Concluding warning

[24] After the Judge sentenced Mr Reid he told him that if he continued to commit methamphetamine supply offences he was at risk of a sentence of life imprisonment; a sentence the Judge had imposed in the past and would not hesitate to impose again. That warning is soon to become academic.[14] But, that apart, it was unnecessary and involved two errors.
[25] It was unnecessary because the severity of the sentence the Judge had just imposed on Mr Reid spoke for itself. It was a declaration that the Judge had already decided what sentence he would impose on Mr Reid, if Mr Reid appeared before him for such offending again. It was excessive because Mr Reid’s offending, though serious, still lay well below that narrow category of drug offending at the extreme for which life imprisonment is the only proper response.

Result

[26] Mr Reid’s appeal against the sentence imposed on him for his principal offences, the possession of methamphetamine for supply offences, is allowed. His sentence of four years, nine months, is quashed. He will be sentenced for those offences to imprisonment for four years. His concurrent six month sentences for the possession of pipes will stand.

Solicitors:
Crown Solicitor, Auckland for Respondent

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[1] R v Reid DC Auckland CRI-2011-004-7301, 5 October 2012.
[2] See Reid v New Zealand Police HC Auckland CRI-2011-044-1023, 8 July 2011.
[3] R v Fatu [2006] 2 NZLR 72 (CA).
[4] R v Reid, above n 1, at [19].
[5] R v Shelton HC Wellington CRI-2007-085-7699, 29 February 2008.

[6] R v Crawford HC Rotorua CRI-2006-070-5847, 27 June 2008; R v McPherson [2009] NZCA 487; R v Howard HC Invercargill CRI-2010-059-1155, 14 December 2010; R v Haira HC Rotorua CRI-2009-063-5871, 24 November 2011; R v Turner [2012] NZHC 855; Yuen v R [2010] NZCA 521.
[7] R v Reid, above n 1, at [19].
[8] R v Reid, above n 1, at [20].
[9] At [24].
[10] At [24].

[11] R v Al Hachache HC Auckland CRI-2003-004-27928, 24 November 2006; R v De Serville HC Auckland CRI-2006-004-18441, 29 August 2008.
[12] Reid v New Zealand Police, above n 2.
[13] Hastings v R [2011] NZCA 105.
[14] Sentencing Amendment (No 2) Act 2011, s 5.