Whare v R [2014] NZCA 354 (30 July 2014)

Last Updated: 6 August 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA759/2013 [2014] NZCA 354
BETWEEN	RORY HENARE WHARE Appellant
AND	THE QUEEN Respondent

Hearing:	21 July 2014
Court:	Stevens, Lang and Clifford JJ
Counsel:	C D Bean for Appellant P D Marshall for Respondent
Judgment:	30 July 2014 at 3.00 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] The appellant, Mr Whare, pleaded guilty to four representative counts of offering to supply methamphetamine, four representative counts of supplying methamphetamine, one representative count of offering to sell cannabis, one count of possessing methamphetamine for the purposes of supply and one count of possessing a precursor substance. He was discharged on two further charges in relation to possession of a different precursor substance and possession of an airgun.^[1] Mr Whare was sentenced to eight years’ imprisonment by Judge Macdonald in the District Court at Hamilton.^[2] He appeals this sentence.
[2] Mr Whare challenges his sentence in two respects. First, an uplift for the air pistol was wrong in principle. Second, the Judge gave an inadequate discount for remorse and his prospects of rehabilitation.

Background

[3] On 1 August 2012, Mr Whare and a companion were stopped in Mr Whare’s car. A subsequent search revealed methamphetamine and associated items involved in its manufacture and dealing. Mr Whare’s mobile phone was then analysed, revealing 292 offers or sales of methamphetamine between 1 July 2012 and 1 August 2012. Where a quantity was identifiable in 163 of these communications, this totalled 201.8 grams, with an ascribed value of $84,000 specified in respect of 122.3 grams.
[4] The police also found a .177 calibre air pistol under the driver’s seat; a tyre iron placed between the driver’s seat and middle console; a broom handle modified into a weapon in the boot; and a Stanley knife inside a bag. Mr Whare admitted he owned the air pistol, and the vehicle he was driving. He then pleaded guilty to various charges laid against him.

Sentencing

[5] Judge Macdonald assessed the methamphetamine offending as falling within the top of band 2 or bottom of band 3 in R v Fatu.^[3] He accepted the Crown’s proposed starting point of eight years’ imprisonment.^[4] In considering an uplift in respect of the pistol, the Judge then noted the charge in relation to it had been removed but correctly observed the presence of the pistol was able to be treated as an aggravating factor. He therefore applied an uplift of three months’ imprisonment, half the uplift the Crown was seeking. A further uplift of nine months was applied on account of the additional offending and three months for prior convictions. This resulted in a starting point of nine years and three months’ imprisonment.
[6] The Judge allowed a global discount of 15 months’ imprisonment (around 14 per cent). This included a discount for the guilty pleas and “slight adjustments” for the other factors raised by defence counsel.^[5] This resulted in a final sentence of eight years in relation to the class A charges. Lesser concurrent sentences were imposed on the remaining offences.

Submissions on appeal

[7] Mr Bean first submits, because the Crown elected not to proceed with a separate charge relating to the air pistol found under the seat of the vehicle, this factor did not warrant a discrete uplift. While the presence of the pistol was mentioned in the summary, there is no indication whether it was loaded or not.
[8] Secondly, counsel submits Mr Whare has shown significant insight into his offending and clear acceptance of his responsibility. Further, the birth of his child after the offending has provided a new motivating factor in his life. He has been engaged in counselling for gambling and expressed a desire to engage in drug rehabilitation. Counsel acknowledges Judge Macdonald referred to these issues in his decision.^[6] However, family members have observed positive progress and greater recognition ought to have been given to these factors.

Analysis

Uplift

[9] We do not consider Judge Macdonald was wrong to impose an uplift for the presence of the pistol as an aggravating factor. There was no dispute the air pistol belonged to the appellant. It was found in his possession along with the other three weapons referred to above at [4]. The presence of firearms in a drug dealing context is a circumstance properly to be taken into account at sentencing, even where firearms charges are [7]ot pursued.⁷ Given the seriousness with which firearms are viewed as aggravating factors, the modest uplift of three months was clearly available to the Judge.
[10] In any event, the starting point adopted must take into account the overall criminality involved. This was serious drug offending involving significant dealing in both class A and class C drugs. The appellant was also in possession of materials used in the manufacture of methamphetamine, as well as the weapons already mentioned. A total starting point of nine years and three months’ imprisonment was clearly available to the Judge.

Remorse and rehabilitation

[11] Judge Macdonald expressly referred to positive comments made by the probation officer. He acknowledged Mr Whare regretted his offending, accepted responsibility for it and was actively pursuing rehabilitation. The Judge accepted these personal factors were relevant to his determination of sentencing and correctly noted the need to consider them.^[8] The discount applied (of around 14 per cent) was one year and three months’ for the guilty plea and Mr Whare’s personal factors. The slight allowance made for remorse and rehabilitation was understandable as Mr Whare had, only a few weeks before the offending, been released following a sentence on methamphetamine dealing charges.
[12] Personal circumstances are of course relevant to sentencing for commercial drug related offending. But this Court has emphasised they are “relegated in importance” to the need for deterrence.^[9] Moreover the Supreme Court has confirmed the importance of deterrence in this class of drug offending.^[10] This Court in R v Bryant noted “mitigation for personal factors is usually reserved for those situations where the combination of factors takes the case out of the usual range which one sees repeatedly in this area”.^[11]
[13] The appellant’s personal circumstances do not take him out of the usual range of cases. In light of the circumstances of his offending, we consider the limited discount granted by Judge Macdonald was well within the available range. Moreover the final sentence imposed could not be said to be manifestly excessive.

Result

[14] The appeal was filed out of time. The Crown did not object to an extension of time and we grant an extension accordingly. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Pursuant to s 347 of the Crimes Act 1961. This was expressly on the basis that the presence of the air pistol would “remain in the summary of facts utilised for the purpose of sentence”.

^[2] R v Whare DC Hamilton CRI-2012-019-6891, 2 October 2013.

^[3] At [9]; R v Fatu [2006] 2 NZLR 72 (CA).

^[4] At [12].

^[5] At [13].

^[6] At [7].

^[7] R v Egan [2008] NZCA 102 at [10(d)]; see also R v Teague [2008] NZCA 114 at [4].

^[8] At [7] and again at [13].

^[9] R v Wallace [1999] 3 NZLR 159 (CA) at [25(c)]; see also R v Terewi [1999] 3 NZLR 62 (CA) at [13].

^[10] Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

^[11] R v Bryant [2009] NZCA 287 at [28].