Smith v R [2020] NZCA 586 (24 November 2020)

Last Updated: 1 December 2020

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

CA118/2020 [2020] NZCA 586

	BETWEEN	ANDREW MICHAEL SMITH Appellant
	AND	THE QUEEN Respondent

Hearing:	27 August 2020
Court:	Courtney, Wylie and Muir JJ
Counsel:	P J Kaye for Appellant M Davie for Respondent
Judgment:	24 November 2020 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

• [1] The appellant, Andrew Smith, appeals an end sentence of six years’ imprisonment imposed by Judge Neave in the District Court at Christchurch on 19 February 2020 in relation to the following offending:^[1]

(a) two representative charges of supplying methamphetamine;^[2]

(b) one charge of conspiracy to possess methamphetamine for supply;^[3]

(c) one charge of possession of methamphetamine for supply;^[4] and

(d) one charge of causing grievous bodily harm with intent to injure.^[5]

• [2] The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011 and falls to be determined in accordance with s 250 of that Act. An appeal against sentence can only be allowed if the Court is satisfied both that there has been an error in the sentence imposed, and that a different sentence should be imposed.^[6]
• [3] It is common ground that the Judge made an error when applying discounts for mitigating factors that led to the end sentence of six years’ imprisonment rather than the five years that the Judge clearly intended. Mr Smith asserts not only that this error should be corrected, but that even a sentence of five years would have been manifestly excessive as a result of the Judge taking too high a starting point and allowing too little by way of discount for his personal circumstances.
• [4] The Crown accepts that the Judge’s error should be corrected and says that it would be appropriate for the Court to reduce the end sentence to five years. However, it says that a sentence of five years would be lenient and ought not to be reduced further.

Factual background

Methamphetamine-related offending

• [5] In September 2017, the police initiated an investigation into methamphetamine dealing activities involving Mr Smith, Connie Ross (his mother) and various other co‑defendants who worked for Mr Smith, in particular Mark Powhiro. All of the co‑defendants were associated with the Tribesmen motorcycle gang.
• [6] In October 2017, the police obtained a surveillance device warrant and started intercepting Mr Smith’s private communications. Those communications established that Mr Smith was heavily involved in the sale and distribution of methamphetamine. He was regularly supplying methamphetamine to a number of people. Customers would either visit Mr Smith directly, or alternatively they would meet him at various arranged locations. On some occasions Mr Smith would use his associates to facilitate the drug dealing. Many of his customers on-sold the methamphetamine at a higher price, making a profit for themselves. Mr Smith would often extend credit to his customers so they could pay him after they had on-sold the methamphetamine. There were considerable sums of money owing to Mr Smith at various times. At one stage, he appears to have been owed over $372,000 by his customers.
• [7] On 2 October 2017, Mr Powhiro called Mr Smith. They discussed an associate who was selling methamphetamine for them and queried how they could increase the quantities they were supplying to the associate from grams to a “quarter” (seven grams) and then to a “half” (14 grams). During the call Mr Powhiro told Mr Smith that he needed more methamphetamine to sell. Mr Smith replied that he did not have a lot but that he would give Mr Powhiro everything he had. Mr Powhiro then advised that he would let Mr Smith know when he needed to obtain more methamphetamine. Later that night, Mr Powhiro called Mr Smith again, wanting more methamphetamine. He advised that he had $4,300 and that he required an ounce of methamphetamine. Mr Smith supplied the drug to Mr Powhiro’s partner at a location chosen by Mr Smith. Later that night, Mr Smith called Mr Powhiro again. They discussed their methamphetamine distribution lines and contacts who would be able to sell methamphetamine for them in the Timaru area.
• [8] On 4 October 2017, Mr Smith called Mr Powhiro and asked him “Who’s got all the P?”. Mr Powhiro replied that he did not know. They joked about their status as drug dealers without a current supply of methamphetamine. Mr Smith asked Mr Powhiro to try and get some methamphetamine that night. Conversations over the following days indicated that Mr Powhiro was trying to source methamphetamine for Mr Smith.
• [9] On 6 October 2017, Mr Smith told Mr Powhiro he was waiting on “20 [grams] of [his] own”.
• [10] Also on 6 October 2017, Mr Smith told another associate that he was working to find a supplier of methamphetamine and that he had already given “120” ($120,000) for a quantity of methamphetamine ($120,000 at the time represented between 10 and 12 ounces of methamphetamine (283 to 340 grams), on the basis of the price being between $10,000 and $12,000 per ounce).
• [11] On 8 October 2017, Mr Smith told Mr Powhiro that he had $40,000 at his home and $4,000 on him. Mr Smith told Mr Powhiro to obtain “three”, which was a reference to three ounces of methamphetamine. They agreed to complete the methamphetamine deal later that day. Late in the afternoon on the same day, Mr Smith and Mr Powhiro spoke again. They arranged to meet a supplier. Mr Smith then called his mother and asked her how much money was at their home. He instructed her to count out $30,600 and to put $600 aside. Mr Smith arranged for the money to be picked up by other associates. A meeting with the supplier was then arranged. Mr Smith did not attend; rather he sent an associate with the money.
• [12] On 20 November 2017, the police searched a house at Woolston in Christchurch. Mr Smith was present at the time, along with other gang associates. Mr Smith gave his cell phone number to the police when asked to do so. The police then rang the number to locate the phone. It was found in a bedroom alongside a handwritten tick list. The tick list recorded that over $372,000 was either owed or had been paid to Mr Smith. The police also found 6.13 grams of methamphetamine in a container, 1.31 grams of methamphetamine in a point bag and approximately $10,000 in cash. The $372,000 recorded on the tick list equated to approximately 31 to 37 ounces of methamphetamine (868 to 1,049 grams). An electronic tick list was also found in Mr Smith’s cell phone with similar names and numbers to those recorded in the handwritten tick list found in the bedroom. Facebook messages also found on his cell phone discussed the supply of methamphetamine and recorded arrangements for cash payments and for suppliers to meet with Mr Smith.
• [13] Mr Smith, in conjunction with his mother, endeavoured to electronically wipe data from his cell phone and to change his cell phone number and passwords. He managed to remotely remove all data on the phone, notwithstanding that it was being held by the police.

Prison assault

• [14] On 17 August 2018, Mr Smith was in custody in Christchurch Men’s Prison. At about 10.40 am, he and five co-offenders attacked a fellow prisoner in the exercise yard. The attack lasted for just over 40 seconds. Mr Smith kicked and then kneed the victim three times to the thigh and body. As a result of the attack, the victim suffered a fractured left cheekbone, three broken ribs, a ruptured spleen and lacerated liver. He spent six days in hospital.
• [15] Mr Smith was charged with causing grievous bodily harm with intent to injure.

Sentencing in the District Court

• [16] Mr Smith requested a sentence indication, which was given on 20 February 2019.^[7] The Judge indicated that, if Mr Smith pleaded guilty, he would adopt a starting point of nine years’ imprisonment for the methamphetamine related offending, based on this Court’s then guideline decision for such offending — R v Fatu.^[8] The Judge assessed the quantity as “something probably approaching 500 grams”.^[9] He considered that the offending fell at the very least in the middle of band three attracting a starting point of between eight to 11 years’ imprisonment.^[10] The Judge also discussed personal aggravating circumstances. He indicated that he would adopt a three-month uplift for the fact that the methamphetamine offending occurred whilst Mr Smith was subject to another sentence. He also indicated that he would give Mr Smith a 22.5 per cent discount if guilty pleas were entered.
• [17] Mr Smith accepted the sentence indication and pleaded guilty to the methamphetamine offending. He later pleaded guilty to the prison assault.
• [18] Sentencing was delayed pending the decision of this Court in Zhang v R.^[11] It did not occur until 19 February 2020.
• [19] In sentencing the Judge referred to Zhang, but recorded that he did not think that there was a need for “too radical a departure” from the approach he had taken when he gave the sentence indication.^[12] He noted that it had not been possible to quantify how much methamphetamine was involved in Mr Smith’s offending; instead he focused on Mr Smith’s role and culpability.^[13] He referred to Zhang and commented that, on any analysis, Mr Smith had the lead role: he was involved in directing the buying and selling of methamphetamine on a commercial scale, he had substantial links to and influence over others in the chain, he had close links to the suppliers and he had an expectation of substantial financial gain.^[14] The Judge did however observe that Mr Smith is a drug addict and that he had a significantly deprived background. He considered that this was a factor which served to reduce his culpability. Against this, he noted that Mr Smith was involved in a gang and that the drug dealing had a gang context.^[15]
• [20] The Judge adopted a starting point of nine years’ imprisonment for Mr Smith’s drug related offending and he uplifted this starting point by three months to recognise that the offending was committed while Mr Smith was subject to an earlier sentence.^[16] He also stated that he needed to take into account a “12 months’ additional sentence” for the prison assault, and said that there would be a further 12 months’ imprisonment for that assault.^[17] It is, however, apparent that this offending was not actually recognised.
• [21] From the adjusted starting point of 111 months the Judge then turned to consider mitigating factors and gave the following discounts, keeping a running total as he went:^[18]

(a) nine months for addiction and cultural report type features (bringing the sentence to 102 months);

(b) three months for handing in weapons (down to 99 months);

(c) six months for efforts towards rehabilitation (down to 93 months);

(d) three months for remorse (down to 90 months); and

(e) 20 months for guilty pleas (down to 70 months).

• [22] At that point the Judge made the error that is the subject of the appeal. In dealing with the discount for time in solitary confinement he made it clear that he intended to allow six months credit, which would have brought the sentence to 64 months, but in error he added six months, which meant that he proceeded on the basis of 76 months, which he reduced by four months for totality.^[19]
• [23] The effect was the Judge’s error was that discounts totalling ten months were not recognised as the Judge intended. As a result, the end sentence, which would otherwise have been 60 months (or five years) became six years.
• [24] In his addendum to the sentencing notes the Judge said:

In reviewing my sentencing remarks I note that I have made a clear error at paragraph [20] by adding six months to Mr Smith’s sentence when I clearly intended to deduct that amount. No-one, particularly me, picked that up at the time. Unfortunately, I have no power to correct this sentence – unless there is a power to recall the judgement as part of the Court’s inherent powers. I must therefore leave it to an appellate Court to determine whether the end sentence is excessive.

The appeal

Arithmetical error

• [25] This Court has previously made clear that where a Judge makes an arithmetical error that results in a higher sentence than was clearly intended, the error ought to be corrected. In Ferris-Bromley v R the Court said:^[20]

A mathematical error resulting in a sentence more severe than the Judge patently intended must be corrected, even if the sentence imposed was still within the available range. In such a case of plain error, it would be unjust for that error to be left uncorrected.

• [26] As already noted, the Crown accepts that the sentencing Judge clearly intended to impose a sentence of five years’ imprisonment. However, the Judge also clearly intended to uplift the starting point by 12 months to reflect the prison assault but failed to do so. Mr Davie described this error as a “windfall” for Mr Smith. We do not think that it should be so regarded. It is not appropriate to leave such serious offending unrecognised by simply correcting the error in relation to the discounts. Therefore, in the unique circumstances of this case, we do not consider that the arithmetical error should be corrected. It would only be appropriate to allow the appeal if, taking into account the grievous bodily harm offending, the end sentence of six years was manifestly excessive.

Starting point

• [27] Mr Kaye, for Mr Smith, argued that the starting point of nine years (self‑evidently for the drugs charges) was too high. Mr Kaye did not take issue with the Judge’s categorisation of Mr Smith’s leading role. While he expressly accepted that Mr Smith was a significant player in the offending which occurred, he argued that the starting point of nine years’ imprisonment was excessive. He submitted that the precise quantity of methamphetamine involved in Mr Smith’s offending was unclear, although accepted that it was at a commercial level. Nevertheless, he submitted that the quantity did not justify a starting point of nine years’ imprisonment, nor placing Mr Smith within band three discussed in Zhang. He also argued that some of the methamphetamine that Mr Smith obtained was of poor quality and that it could not be consumed or on-sold. He noted that the quantity computations in the Zhang bands apply only to methamphetamine with a purity level in the order of 60 per cent or more.
• [28] Mr Davie, for the Crown, noted that the Judge was conservative in assessing the methamphetamine involved as being in the vicinity of 500 grams. He did not accept that the fact that some of the methamphetamine purchased by Mr Smith was of poor quality diminished Mr Smith’s culpability.
• [29] In sentencing for methamphetamine-related offending, quantity remains a reasonable proxy both for the social harm done by the drug and the illicit gains made from making, importing and selling it.^[21] It is an important consideration in fixing culpability and is part of the first step in considering the appropriate starting point. The summary of facts on which Mr Smith entered his guilty pleas does not record the quantity of the drugs involved. The Judge considered that the amount of drugs involved was probably somewhere approaching 500 grams. We suspect that figure was conservative and by quite some margin.
• [30] A sentencing court must also consider the role played by the offender. This enables the court to properly assess the seriousness of the conduct and the criminality involved.^[22] Role can be divided into three categories.^[23] First, there is the leading role, which inter alia applies where the offender is directing or organising buying and selling on a commercial scale. The second is the significant role, where the offender has an operational or management function within the chain, has subordinates who he or she invokes or directs, is motivated solely by financial or other advantage, makes or expects to make a commercial profit, and has some awareness of the scale of the operation. The third tier is the lesser role, where the offender has performed a limited function under direction. Here, the Judge considered that Mr Smith had a leading role.^[24] This was not challenged and we accept that that categorisation is appropriate.
• [31] In our judgment, taking into account the likely quantity of methamphetamine involved and Mr Smith’s leading role, the nine-year starting point was not too high. If anything, it was lenient. As discussed, 12 months should have been added to take into account the assault, which was serious offending and deserved a significant condign sentence in its own right. Moreover, both the drug-related offending and the assault occurred while Mr Smith was subject to another sentence, which would have justified a further uplift.

Personal mitigating factors

• [32] Mr Kaye also argued that insufficient allowance was given for the mitigating circumstances personal to Mr Smith. As already noted, the Judge identified a number of factors that he considered warranted discrete discounts. Mr Kaye, submitted, first, that the Judge failed to properly recognise the role that addiction and mental health problems played in Mr Smith’s offending. The Judge allowed nine months for these factors. Mr Kaye submitted that a discount of 12 to 15 months should have been allowed.
• [33] Although addiction can attract a discount, non-causative addiction is of little mitigatory relevance, and commercial dealing is also likely to be inconsistent with any drug related impairment of the ability to exercise rational choice, which would diminish culpability and justify discounting the sentence.^[25] This Court has held in a number of post-Zhang decisions that a discount for addiction is not readily available for serious commercial offending of the type in issue in this case.^[26]
• [34] Here, there is nothing to suggest that Mr Smith’s addiction was causative of his offending. The Judge had the benefit of two Provision of Advice to Courts (PAC) reports, and by a full report prepared under s 27 of the Sentencing Act 2002. All discuss Mr Smith’s methamphetamine addiction and the violence and abuse he was subjected to as a child. However, as Mr Davie pointed out, there was no evidential basis on which to have allowed a discount for Mr Smith’s methamphetamine addiction, given that his drug dealing was on a substantial commercial scale, that he had other drug dealers working for him and that he had large sums of cash on hand. Indeed, Mr Smith initially told the PAC report writer that, while he was not coerced by the gang to offend, he felt a certain amount of pressure to perform. He later changed his position, to indicate that much of this pressure was internal, driven by his own personal need to appear successful and useful.
• [35] We see no error in the Judge’s approach to the allowance for this factor. Coupled with the six months allowed for efforts towards rehabilitation, the Judge took a very lenient attitude.
• [36] Mr Kaye also argued that the three-month discount for handing in the guns was “too miserly”, noting that the guns were taken off the streets. We do not consider that the surrender of the firearms required a discrete discount and certainly do not consider it the allowance given to be too low.

Guilty plea

• [37] Finally, Mr Kaye argued that Judge should have applied the discount for the guilty pleas in accordance with this Court’s decision in Moses v R rather than after the reduction for other mitigating factors.^[27] However, even if that approach had been taken, and even allowing a discount of 25 per cent rather than the 22.5 per cent actually allowed, the end sentence would still have been (slightly) more than six years.

Conclusion

• [38] We do not consider that the end sentence of six years’ imprisonment was manifestly excessive. Notwithstanding the Judge’s error in adding rather than subtracting one of the discounts, it is not appropriate to interfere with that sentence in the circumstances of this case.

Result

• [39] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Smith [2020] NZDC 3140 [Sentencing notes]. Although the summary of facts and notice of appeal also referred to a charge of perverting the course of justice and false representation with a New Zealand Passport, it appears that the sentencing that is the subject of the appeal related only to the drug-related offending, and we proceed on that basis.

^[2] Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a).

^[3] Section 6(1)(f) and (2A)(a).

^[4] Section 6(1)(f) and (2)(a).

^[5] Crimes Act 1961, s 188(2).

^[6] Criminal Procedure Act 2011, s 250(2) and (3).

^[7] R v Smith DC Christchurch CRI-2017-009-10812, 20 February 2019 [Sentence indication].

^[8] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

^[9] Sentence indication, above n 7, at [4].

^[10] R v Fatu, above n 8, at [34].

^[11] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

^[12] Sentencing notes, above n 1, at [4].

^[13] At [6].

^[14] At [8].

^[15] At [11]–[12].

^[16] At [16].

^[17] At [17].

^[18] At [18]–[19].

^[19] At [20].

^[20] Ferris-Bromley v R [2017] NZCA 115 at [15(a)] (footnotes omitted).

^[21] Zhang v R, above n 11, at [103].

^[22] At [118].

^[23] At [126].

^[24] Sentencing notes, above n 1, at [7].

^[25] Zhang v R, above n 11, at [147].

^[26] See, for example, Smith v R [2020] NZCA 221 at [21]; Whiteford v R [2020] NZCA 130 at [27]; Berkland v R [2020] NZCA 150 at [77]; and Mohebbi v R [2020] NZCA 343 at [29].

^[27] Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [45]–[46].