Wratt v R [2021] NZCA 128 (22 April 2021)

Last Updated: 28 April 2021

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

CA657/2019 [2021] NZCA 128

	BETWEEN	DAVID WAYNE WRATT Appellant
	AND	THE QUEEN Respondent

Hearing:	17 February 2021
Court:	Gilbert, Mallon and Edwards JJ
Counsel:	E J Forster for Appellant M L Wong and F E S F Girgis for Respondent
Judgment:	22 April 2021 at 3 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 Mallon J)

Introduction

• [1] Mr Wratt was charged with importing methamphetamine.^[1] The representative charge related to four packages of methamphetamine which Mr Wratt had arranged through the “Dark Web” to be sent under false names to his address or nearby addresses. The total quantity of methamphetamine imported in this way was 452 g over a five-month period. All four packages were intercepted by the New Zealand Customs Service (Customs) and linked to Mr Wratt.
• [2] Mr Wratt pleaded guilty and was sentenced on 11 November 2019 to six years and nine months’ imprisonment.^[2] He appeals his sentence as manifestly excessive. He says that the starting point for his offending was too high because his role was wrongly characterised as “leading” in terms of the indicia set out in Zhang v R.^[3] He also says his attention deficit hyperactivity disorder (ADHD) warranted a higher discount.
• [3] The notice of appeal was filed a few days out of time. Mr Wratt has explained that he gave instructions to his lawyer to appeal promptly but there were delays in the mail system. The Crown does not oppose an extension of time. We consider an extension is appropriate in the circumstances and grant the application accordingly.

Background

• [4] The first importation concerned a package sent from the United States. Mr Wratt used a false name for the addressee and gave his home address in Napier for delivery. The package was intercepted by Customs on 8 September 2017. It was found to contain approximately 236 g of methamphetamine. In collaboration with police, Customs replaced all but 10 g of methamphetamine with a substitute material.
• [5] The package was then delivered on 18 September 2017 by courier to Mr Wratt’s home address. An associate answered the door and signed for the package. Shortly after this, Mr Wratt and his associate drove away in Mr Wratt’s car with the package. Mr Wratt, who was driving the car, told his associate to open the package. A tamper alarm inside the package alerted the police and they attempted to stop the car. Mr Wratt and his associate were apprehended after a short pursuit.
• [6] Mr Wratt was bailed to a Dunedin address on 20 October 2017. He arranged for the importation of three further packages while on bail:

(a) A package arrived in New Zealand on 24 November 2017. The package was addressed to the house neighbouring Mr Wratt’s bail address. A false name was used for the addressee. Mr Wratt attempted to intercept the package on delivery but he was unsuccessful. The courier left a calling card. The occupant of the neighbouring address called the courier service and told them that nobody with the name of the addressee lived at the address. The package was examined by Customs and was found to contain 90 g of methamphetamine.

(b) A package arrived in New Zealand around 23 January 2018. It was addressed to another property in the same street as Mr Wratt’s bail address and again a false name was used for the addressee. Once again, the occupants advised the courier company that they did not know the addressee and the package was uplifted and examined by Customs. It contained 36 g of methamphetamine.

(c) A fourth package arrived in New Zealand around 2 March 2018. The package was for delivery to a Hastings address to an addressee who did not live there. The package was never delivered. It was examined at the border and found to contain 90 g of methamphetamine.

• [7] The purity of the methamphetamine was at issue prior to sentencing. Mr Wratt claimed he had purchased it cheaply and its purity was below 60 per cent. The methamphetamine was destroyed after Mr Wratt entered his guilty plea but before the disputed facts hearing. The Crown conceded that Mr Wratt should be entitled to some benefit of the doubt regarding the purity.

Personal circumstances

• [8] Mr Wratt was aged 45 years at the time of the first importation. He has a lengthy list of prior convictions, largely involving dishonesty offences. He has no previous convictions for methamphetamine offending.
• [9] Mr Wratt told the pre-sentence report writers that he had a longstanding addiction to methamphetamine. He said he imported the drugs as a cheap way to fund his addiction (the more he brought in, the cheaper it was) and because it would be safer than obtaining drugs from gang members or other drug dealers. He said he had been drug-free for one and a half years while on remand awaiting sentencing. Mr Wratt also said that he was diagnosed with ADHD when he was young and methamphetamine would calm him like the medication he used to be prescribed for that disorder.
• [10] Mr Wratt was seen prior to sentencing by Dr Gil Newburn in prison on 31 January 2019. Dr Newburn confirmed that Mr Wratt has ADHD. This was a lifelong pervasive disorder characterised by the typical range of symptoms. His significant history of criminal offending appeared to have involved “impulsive and ... silly” acts consistent with ADHD. Dr Newburn also considered Mr Wratt to have a stimulant use disorder (using significant amounts of methamphetamine over a long period) and Mr Wratt’s ADHD was a factor in the development of that disorder.
• [11] Mr Wratt was also seen by Dr Greg Young, a consultant psychiatrist at the prison. Dr Young’s notes are mainly about the appropriate medication for Mr Wratt in light of his methamphetamine addiction. His notes also record his impression that Mr Wratt was using his ADHD medication as a substitute for methamphetamine and that Dr Young was not happy with Mr Wratt’s lack of openness to addiction treatment. The PAC report provided to the Court prior to sentencing also noted Mr Wratt’s claim that “methamphetamine would calm him like the medication” doctors would prescribe for his ADHD.

District Court sentencing

• [12] Mr Wratt came before Judge Rea in the District Court at Napier for sentencing on 11 November 2019. The Judge said that, if there were no issue about the purity of the methamphetamine, the starting point would have been around 11 years’ imprisonment. In taking that view, the Judge referred to the nearly 500 g of methamphetamine that would have been available for distribution had the packages not been intercepted.^[4]
• [13] The Judge was, however, prepared to accept the Crown’s submission that the starting point be reduced to nine years’ imprisonment because of the purity issue, which he described as “very generous”.^[5] This was uplifted by six months (5.5 per cent) to reflect that three of the importations occurred when Mr Wratt was on bail. One year (10.5 per cent) was deducted for his ADHD diagnosis and addiction issues and a discount of 21 months (20 per cent) was made for his guilty plea.^[6] This meant an end sentence of six years and nine months’ imprisonment (rounded down). There was no minimum period of imprisonment imposed.^[7]

Starting point

• [14] The quantity of drugs imported puts the offending at the top of band three in the guideline judgment of Zhang v R.^[8] That band applies to quantities between 250 and 500 g with at least a 60 per cent purity. A starting point in the range of six and 12 years’ imprisonment is the guideline for that band.^[9]
• [15] Methamphetamine with less purity “corresponds to reduced harm” and may require a reduction in the calculated quantity.^[10] The Crown was unable to prove that the purity of the drugs was at least 60 per cent. The Judge was correct to reduce the starting point accordingly. A reduction to the mid-point of the band three range (nine years’ imprisonment) was fair in the circumstances and Mr Wratt does not contend otherwise.
• [16] The challenge is to the Judge’s assessment of Mr Wratt’s role in the offending. The Judge discussed Mr Wratt’s role in the following terms:^[11]

[5] There has been some debate between Ms Graham on your behalf and the Crown as to where you fit in. You are a leading figure in this simply because you were the one who did it. However, it is leading only in that sense and Ms Graham has isolated that in her submissions. It is not the same as if you were in charge of [a] major importation ring and you were calling the shots from the head of it. However, you were calling the shots on your operation because you were the operation and you brought it all in.

• [17] Mr Wratt submits that, if the Judge had assessed Mr Wratt’s role in terms of the indicia that are set out in Zhang, Mr Wratt would fit more of the “lesser” and “significant” indicia than he does “leading”.^[12] He submits that, in the present case, the “leading” role applies to those involved in the running of the distribution network on the “Dark Web”. That was not him. He was an unsophisticated buyer who hoped, if he was successful in receiving the packages, to obtain cheap methamphetamine for his own addiction. His motivation for ordering large quantities was because it was cheaper to do so. The fact that he used addresses close to where he lived and that he was largely unsuccessful emphasises his lack of sophistication. Mr Wratt submits an eight-year starting point would more accurately fit his role.
• [18] We do not accept that the “lesser” indicia are present in any realistic way. We agree that there is some overlap in the “significant” and “lesser” indicia and that some of the indicia under each of those categories do not apply. It is to be remembered that the indicia are not a rigid checklist but intended as a potentially helpful guide for judges when assessing the culpability of the overall offending.^[13]
• [19] We consider the Judge’s comments about Mr Wratt’s role, quoted above, accurately describe that role. He was the leader in New Zealand of his operation. He made the decision to import the methamphetamine. He decided how he would do that and he made the arrangements for the packages to be sent and paid for. No-one was directing him to do this and he was accountable to no-one above him in the supply chain. As the Judge found, the “sheer amount” meant that it could not have been all for Mr Wratt’s personal use.^[14] This was a commercial quantity with the potential to cause substantial harm to the community and provide Mr Wratt with substantial financial rewards if distributed.
• [20] We consider Mr Wratt is best described as having a “leading” role in the importation of these drugs, albeit that his operation was an unsophisticated one. It was open to the Judge to adopt a slightly lower starting point than he did because this was not sophisticated offending. It involved no extensive planning, required no input from others and was unsuccessful in its execution. Nevertheless, we consider the starting point of nine years’ imprisonment was in range and not manifestly excessive.
• [21] We are reinforced in this conclusion with reference to recent decisions of this Court. Specifically:

(a) Ms Hobson (one of the appellants in Zhang v R):^[15] This appellant imported a minimum of 300 g of methamphetamine and attempted to import a further 290 g. She was at the “lower end of ‘leading’”, being in contact with the overseas supplier but in a relatively unsophisticated operation.^[16] A starting point of nine years’ imprisonment was considered appropriate and a ten and a half-year starting point would have been warranted if she had been successful in importing the further 290 g.^[17]

(b) Moheebi v R:^[18] The appellant imported over 500 g of methamphetamine over a four-year period. There was a dispute about whether 150 g of that quantity had a purity of less than 60 per cent. He was an entrepreneur who did not fit into a wider supply chain, but his operation was “not sophisticated” and “amateurish”.^[19] He was said to have a “leading” role and an 11-year starting point was held to be appropriate for the importation.^[20]

• [22] The initial starting point of 11 years’ imprisonment in this case corresponds with Moheebi v R for a comparable operation. The adjusted nine-year starting point corresponds with Ms Hobson in Zhang v R for a comparable quantity adjusted because of the purity issue.

Discounts for personal mitigating factors

ADHD diagnosis

• [23] In deciding on a discount of 10.5 per cent for Mr Wratt’s ADHD and methamphetamine addiction, the Judge said:^[21]

[6] ... It is unclear about your addiction. I am quite prepared on the reports that I have seen to conclude that you do have addiction issues around the drug but where it crosses over with your ADHD is difficult to assess. However, I believe you are entitled to some credit for that. However, ... you are a man who is not inexperienced in dealing with the system. You have served numerous sentences of imprisonment where you would have had ample opportunities to address issues. Whether you could not or you would not I do not know, but you certainly had that opportunity.

• [24] Mr Wratt says a discount of 30 per cent for his ADHD should have been given because of the strong causative link between his ADHD and his offending. He says that prior to Zhang v R the range for contributing mental illnesses was 12 to 30 per cent and the Court in Zhang v R expressly left the extent of this discount open.
• [25] The Crown says the discount was within range. The Crown contrasts Mr Wratt’s offending with the scenario envisaged in Zhang v R of offenders whose actions were driven by their drug dependency, such as a solo parent recruited by a gang to sell drugs to fund their own addiction and to repay accruing debt. The Crown says the connection between the ADHD and the offending is weak. It says that any such causative link is not relevant to importation on this scale.
• [26] This Court accepted in Zhang v R that addiction may logically give rise to a discount of up to 30 per cent of the sentence depending on the extent to which it mitigates moral culpability for the offending. This correlated with the discount potentially available for serious mental health disorders, which might be seen as having a similar mitigating impact. A discount for addiction greater than 30 per cent might be available, although clear reasons ought to be given in such a case.^[22]
• [27] The Court acknowledged evidence that methamphetamine is attractive to users with mental health issues and a discount was available if there is an evidential basis to suggest that mental health issues have contributed to the offending. However, “mental health issues and addiction may operate in combination” and so it was necessary “to ensure that there is no improper doubling-up of discounts for personal circumstances”.^[23] The Court referred to existing authority that the degree of the discount depended on the severity of the mental health condition at issue and the strength of the causal link between that condition and the offending. The Court referred to existing authority which had suggested discounts in the range of 12 to 30 per cent were potentially available in cases involving methamphetamine offending.^[24]
• [28] We accept on the reports before the Court that there was a link between Mr Wratt’s ADHD and his addiction. We also accept that his longstanding addiction to methamphetamine was a factor in his offending. In this way, we consider his ADHD and his addiction were operating in combination. The appropriate discount was one that reflected this combination rather than discrete discounts for each factor.
• [29] In considering the appropriate discount, we note that Mr Wratt’s ADHD diagnosis was made many years ago. He has been treated for it and knows that treatment is available to him. He has become addicted to methamphetamine as an alternative to proper treatment but has had previous opportunities to seek help for his addiction if minded to do so, and this help is still available to him. More importantly, we accept the Crown’s submission that the causative link between Mr Wratt’s ADHD and addiction and the significant quantity he imported is weak. Mr Wratt’s only justification for the quantity he ordered was that it was cheaper to do so.
• [30] In these circumstances, we consider that the Judge’s discount of 10.5 per cent was within range. By way of comparison we refer to two recent decisions of this Court:

(a) Smith v R:^[25] Mr Smith was a wholesale level supplier of at least 15 kg of methamphetamine for a Mongrel Mob distribution network. His role was assessed at the “upper end of ... significant”.^[26] A discount of just over four per cent for his addiction and rehabilitative prospects was allowed by the sentencing Judge. On appeal this Court upheld that discount for rehabilitative efforts. It considered that no discount was available for Mr Smith’s addiction because the motivation for the offending was primarily financial and the decision to engage in large‑scale commercial offending was overwhelmingly rational.^[27]

(b) Clark v R:^[28] Mr Clark was found to be in possession of a total of 583 g of methamphetamine and to have conspired with others to obtain a further 137 g of the drug. He was in contact with a high-level dealer and was running his own supply operation, and so had a “significant” role.^[29] A 15 per cent discount for addiction was not disturbed on appeal because Mr Clark was acting partly for his addiction and partly for financial gain.^[30]

• [31] We consider Mr Wratt’s situation to be more comparable to that of Mr Clark than that of Mr Smith and the discount allowed by the Judge to be sufficiently close to that left undisturbed in Clark v R so as to be within range.

Moses v R

• [32] We note for completeness that, in accordance with authority that pre-dated this Court’s decision in Moses v R, the Judge applied the guilty plea discount after the discount for Mr Wratt’s ADHD and addiction issues. Applying the Moses v R methodology would result in an end sentence of just over six years and seven months’ imprisonment.^[31] We consider that the Judge’s end sentence of six years and nine months’ imprisonment is not manifestly excessive relative to this.^[32]

Result

• [33] The application for an extension of time to appeal is granted.
• [34] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a); maximum penalty of life imprisonment.

^[2] R v Wratt [2019] NZDC 22470 [Sentencing judgment].

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

^[4] Sentencing judgment, above n 2, at [2] and [7].

^[5] At [7].

^[6] At [8]. This was calculated on the methodology used prior to Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.

^[7] At [10].

^[8] Zhang v R, above n 3.

^[9] At [125].

^[10] At [129].

^[11] Sentencing judgment, above n 2. See also Zhang v R, above n 3, at [126].

^[12] At [126].

^[13] At [126].

^[14] Sentencing judgment, above n 2, at [2].

^[15] Zhang v R, above n 3, at [229]–[245].

^[16] At [238].

^[17] At [238]–[239].

^[18] Moheebi v R [2020] NZCA 343.

^[19] At [22].

^[20] At [23].

^[21] Sentencing judgment, above n 2.

^[22] Zhang v R, above n 3, at [149].

^[23] At [152].

^[24] At [153]. However, the Court clarified that this was “not the case in which to review discount levels for contributing mental health conditions”.

^[25] Smith v R [2020] NZCA 221.

^[26] At [16].

^[27] At [20]–[22].

^[28] Clark v R [2020] NZCA 641.

^[29] At [14].

^[30] At [22].

^[31] See Moses v R, above n 5, at [30].

^[32] See also Roberts v R [2020] NZCA 441 at [53]–[54].