Irwin v R [2020] NZCA 181 (26 May 2020)

Last Updated: 3 June 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA161/2020 [2020] NZCA 181

	BETWEEN	MICHAELA PATRICIA IRWIN Appellant
	AND	THE QUEEN Respondent

Hearing:	13 May 2020
Court:	Collins, Duffy and Edwards JJ
Counsel:	S J Lance for the Appellant J M Irwin for the Respondent
Judgment:	26 May 2020 at 10.00 am

JUDGMENT OF THE COURT

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

100. The sentence of 2 years, 2 months’ imprisonment is quashed. A sentence of 1 year, 10 months’ imprisonment is substituted, with a special post‑release condition requiring the appellant to attend and participate in any departmental programme that her probation officer may direct. That condition shall expire 6 months after the sentence expiry date.

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REASONS OF THE COURT

(Given by Edwards J)

[1] On 22 November 2019, the appellant was found guilty of three charges of possession of methamphetamine for supply. She was sentenced by Judge Cathcart in the District Court at Gisborne to 2 years, 2 months’ imprisonment.^[1]
[2] That sentence was reached by adopting a starting point of 2 years, 8 months’ imprisonment, uplifted by 1 month for a prior conviction, and discounted by 7 months for time spent on restrictive bail.
[3] The appellant appeals from that sentence on the basis that the starting point was too high, the discounts for personal mitigating features were too low, and the end‑sentence should have been one of home detention.
[4] The appeal was filed three days out of time. The delay is short and has been adequately explained. We grant the necessary extension.

The offending

[5] The appellant’s offending was uncovered as part of a police operation targeting methamphetamine dealing in Gisborne in 2017 and early 2018. The appellant obtained methamphetamine from the principal offender within the targeted network.
[6] The three charges on which the appellant was found guilty arose out of offending on 23 May 2017, 25 May 2017 and 27 September 2017. The quantities of methamphetamine involved were one, 29 and 28 grams respectively, making a total of 58 grams.

The starting point

[7] The appellant challenges the starting point of 2 years, 8 months’ imprisonment adopted by the Judge. Counsel for the appellant submits that the Judge did not give adequate weight to the appellant’s limited role in the offending, and the starting point should have been 2 years, 6 months’ imprisonment.
[8] We do not see any error in the Judge’s approach. The starting point was set by reference to the guideline judgment in Zhang v R.^[2] The Judge made specific mention of the need to ensure that sentencing achieved justice in individual cases, and the new emphasis on role in assessing culpability.^[3]
[9] The quantity of the methamphetamine placed the offending at the lower end of band two of Zhang which applies to quantities between five and 250 grams. That band attracts starting points of between 2 and 9 years’ imprisonment.
[10] As to the appellant’s role, the Judge found:

[37] In my view Ms Irwin was nothing more than an intermediary in relation to these three transactions. And there is no evidence she onsold any of the methamphetamine herself. Nor is there any evidence from which I can infer she benefitted financially. She may well have been doing it under direction of Mr Campbell and even others. I accept that she performed a limited function under direction; with little or no actual financial gain, had little influence on events above the chain of command. However, I do not accept she had no awareness of the scale of the operation in the context of the three charges in which the jury returned guilty verdicts. She must have had sufficient awareness of the scale of the operation particularly given the quantum involved in charges 13 and 37.

[11] This also put the appellant’s offending towards the lower end of band two. It was not at the very bottom given the Judge’s finding that the appellant must have had some awareness of the scale of the operation given the quantity of methamphetamine the subject of two of the charges (28 grams and 29 grams respectively). We agree with the Judge’s conclusions in that respect.
[12] The starting point also had relativity to the starting points adopted by the appellant’s co-offenders. A starting point of 18 years’ imprisonment was adopted for the lead offender, and 5 years, 6 months for the co-offender sentenced at the same time as the appellant. The Judge was well placed to assess the various roles of each defendant and adopt relative starting points accordingly given that he was the presiding Judge at trial.
[13] In addition, we accept the Crown’s submission that the starting point was consonant with the starting point adopted by this Court for Ms Crighton, one of the appellants in Zhang. The quantity involved in that case was 3.75 grams, and the role played by Ms Crighton was even less significant than the role played by the appellant in this case. This Court considered a starting point of 2 years’ imprisonment was appropriate.^[4]
[14] In sum, there is no basis to find that the starting point of 2 years, 8 months’ imprisonment was out of range.

Adjustments for personal factors

[15] The Judge applied an uplift of 1 month’s imprisonment for the appellant’s only prior conviction for supply of methamphetamine from 2016. That offending involved the appellant being directed by her father, a patched member of the Mongrel Mob, to go inside their home and fetch a one-gram bag of methamphetamine for delivery to an undercover police officer. The appellant did what she was told. She was sentenced to 6 months’ community detention for that offending.
[16] Section 9(1)(j) of the Sentencing Act 2002 requires a court to take into account the number, seriousness, date, relevance, and nature of any previous convictions in sentencing an offender. In Orchard v R, this Court said that previous convictions are relevant “as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending”.^[5] The Court stressed the need for any uplift to be proportionate to the sentence imposed for the original offence, noting that an uplift is unlikely to be proportionate if it exceeds the prior sentence.^[6]
[17] The Judge in this case was alive to the need to ensure that the uplift was proportionate. On that basis, he rejected the Crown’s proposed 3-month uplift, and adopted defence counsel’s suggestion of a 1-month uplift.^[7]
[18] Nevertheless, we consider that even that modest uplift risks punishing the appellant twice for offending already sentenced and served. The appellant did not have any other convictions, whether drug-related or at all. The circumstances of the prior offending reduced the relevance of the conviction to the sentencing exercise. It added little to what was already known about the character and culpability of the appellant, the risk of re-offending or the need for a deterrent response. In that light, we consider the 1-month uplift was disproportionate to the 6 months’ community detention sentence imposed, and an uplift should not have been applied at all.
[19] The appellant also challenges the discounts the Judge applied for personal mitigating factors. She says that the 7-month discount applied by the Judge for time spent on EM bail and bail simpliciter was too low. We disagree. The discount applied by the Judge was just over half the time spent on bail and represented a fair discount for the restrictions placed on the appellant at the time.
[20] The appellant also says that a discount should have been applied for the 7 months spent in custody prior to sentence. This appeal ground was not pressed at the hearing. Nor should it have been given that s 82 of the Sentencing Act expressly prohibits a sentencing court taking into account any period of pre-sentence detention. That section provides a complete answer to this ground of appeal.
[21] However, we consider the Judge did fall into error in failing to assess whether the appellant’s other personal circumstances warranted a further discount. Although the Judge had regard to the matters canvassed in the pre-sentence report, he only did so with respect to whether a sentence of home detention should be imposed.^[8] He did not turn his mind to whether those matters, and in particular the appellant’s rehabilitative prospects, warranted a further discount.
[22] We consider a further discount was warranted. At the time of the offending, the appellant was 21 years old and was the primary caregiver of her sister’s two children. Although there were negative social influences in the appellant’s life, there was also pro-social influences and wider family support. That included an offer to reconnect the appellant with her home marae and to assist with her rehabilitative needs. The appellant had previously been in steady employment and there was no evidence of substance addiction.
[23] In addition, the appellant had shown some insight into her offending in the sense that she acknowledged negative influences as contributing to her offending‑related behaviour. She had also expressed a willingness to participate in a rehabilitative programme. That was important because the pre-sentence report writer considered that her risk of re-offending was likely to reduce if she completed a departmental programme.
[24] All those factors taken together signal good rehabilitative prospects for the appellant. We consider those prospects called for a further discount of approximately 3 months’ imprisonment from the starting point in this case. That discount, taken together with removal of the uplift for her prior conviction, reduces the sentence by 4 months’ imprisonment, and results in an end sentence of 1 year, 10 months’ imprisonment. It follows that the sentence of 2 years, 2 months’ imprisonment is manifestly excessive and must be set aside.
[25] The sentence we intend to impose is a sentence of short duration. We have turned our minds to whether the sentence should be commuted to home detention. We have concluded that it should not. That is because the appellant must be released on serving half of the sentence imposed on appeal.^[9] Given the time she has already served (including time spent on pre-sentence detention), any sentence of home detention could only be of limited duration.
[26] A limited sentence of home detention will give insufficient time to complete rehabilitative programmes. Due to the Covid-19 situation, the appellant has not had an opportunity to complete any departmental programmes whilst in custody. As already noted, the completion of these programmes is integral to reducing the risk of re-offending. Taking all these factors into account, we consider a short sentence of imprisonment with a special post-release condition requiring the appellant to participate in any departmental programme directed by her probation officer is the sentence which best meets the principles and purposes of sentencing and is the least restrictive sentence in the circumstances.

Result

[27] The application for an extension of time is granted.
[28] The appeal against sentence is allowed.
[29] The sentence of 2 years, 2 months’ imprisonment is quashed, and a sentence of 1 year, 10 months’ imprisonment is substituted with a special post-release condition requiring the appellant to attend and participate in any departmental programme that her probation officer may direct. That condition shall expire 6 months after the sentence expiry date.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Campbell [2020] NZDC 3286.

^[2] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

^[3] R v Campbell, above n 1, at [3]–[4] and [8].

^[4] Zhang v R, above n 2, at [198].

^[5] Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [39].

^[6] At [41].

^[7] R v Campbell, above n 1, at [63].

^[8] At [67].

^[9] Parole Act 2002, s 86(1).