Harris v R [2021] NZCA 143 (29 April 2021)

Last Updated: 4 May 2021

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

CA296/2020 [2021] NZCA 143

	BETWEEN	MONIQUE HARRIS Appellant
	AND	THE QUEEN Respondent

Hearing:	24 February 2021
Court:	Cooper, Mallon and Wylie JJ
Counsel:	M N Pecotic for Appellant A M McClintock and O S Klinkum for Respondent
Judgment:	29 April 2021 at 10 am

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed.
2. On the charges of manufacturing methamphetamine and possession of methamphetamine for supply, the existing concurrent sentences of five years and three months’ imprisonment are quashed.

100. Concurrent sentences of four years and five months’ imprisonment are substituted.

4. The existing concurrent sentences on the other charges remain as imposed in the District Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

• [1] The appellant, Monique Harris, faced drug and weapons charges arising out of two sets of offending. She pleaded guilty and was sentenced by Judge E P Paul to five years and three months’ imprisonment.^[1] She appeals that sentence as manifestly excessive. She says the starting point for the lead charge (manufacturing methamphetamine) was too high. She also says she should have received greater discounts for personal mitigating factors.

Background

2017 offending

• [2] The first set of offending involved possession of methamphetamine for supply,^[2] possession of heroin, cocaine and GBL (“fantasy”),^[3] and unlawful possession of a restricted weapon (a contact taser).^[4]
• [3] The charges arose following a call to the police by a concerned member of the public who saw Ms Harris on a West Auckland suburban street in the late afternoon of 5 October 2017. The police attended and attempted to speak to Ms Harris, who tried to walk away. The police then invoked their search powers and Ms Harris threw her handbag away. The handbag was retrieved and searched. Inside the handbag was 97.646 g of methamphetamine, a bottle of GBL weighing 54.9 g, less than a gram of cocaine, 96 mg of heroin, a contact stun taser and a tick book. $1,798 in cash was also found on Ms Harris.

2018/2019 offending

• [4] The second set of offending involved wilful damage of an EM bracelet,^[5] manufacturing methamphetamine,^[6] and unlawfully possessing a pistol.^[7]
• [5] Ms Harris had been granted EM bail on 17 August 2018 on the first set of charges. On 3 November 2018, she removed her EM bracelet and absconded. A warrant for her arrest was issued.
• [6] Early on 1 May 2019, police found Ms Harris at a Henderson address in a sleep-out with her partner. In the sleep-out, the attending officers located various items used to manufacture methamphetamine, including precursor substances, equipment and methamphetamine ingredients. Methamphetamine weighing 51.5 g was also present. Police also located a portable safe which contained a loaded 9 mm pistol and 45 live 9 mm rounds, and a black bag with a box of ammunition containing a further 48 9 mm rounds. Ms Harris admitted all these items belonged to her and that she had manufactured methamphetamine at the address on more than one occasion.

Personal circumstances

• [7] Ms Harris was 33 and 34 years old at the time of the offending. Her conviction history involved relatively low-level offending, most relevantly a spate of offending in 2012 involving possession of methamphetamine, possession of a knife and offensive weapons, breaching community work, failing to answer bail (for which she was sentenced to intensive supervision and fined) and neglect of a child in 2015 (for which she was sentenced to a short period of imprisonment).
• [8] Ms Harris described a difficult childhood when interviewed by the probation officer for her pre-sentence report. Her father was addicted to alcohol and drugs and was violent to her mother. Her parents separated when she was 10 or 11 and she moved around with her mother a lot after that. Her father introduced her to methamphetamine when she was 15. She was also subject to other personal trauma when she was 14. She began dealing drugs when she was 19 and has had a long-standing drug dependency with only limited periods of abstinence.
• [9] In explanation for the 2017 offending, she said the drugs were for her and the cash was money she had won and was looking to use to buy a car. In explanation for the later offending, she said she absconded from the EM bail address in November 2018 because her grandmother had passed away and she wanted to attend the funeral. She then went “on the run” and began manufacturing methamphetamine “to survive”.
• [10] A report under s 27 of the Sentencing Act 2002 was also prepared for sentencing. This report traversed similar matters to that covered in the pre-sentence report. It also discussed that Ms Harris’ drug use was the reason why her two children were removed from her care. The report discussed Ms Harris’ disconnection from Te Ao Māori and her willingness to reconnect with her whanau. It also referred to her limited employment history since leaving school at age 15 and her recognition that employment was key to refraining from substance abuse and offending.

District Court

• [11] Ms Harris was sentenced in the District Court on both sets of offending. The Judge took manufacturing of methamphetamine as the lead charge. He did not accept that the “lesser” role described in the guideline judgment of Zhang v R applied to Ms Harris because it was her drugs operation.^[8] He considered the appropriate starting point for this charge was five years’ imprisonment. He uplifted the starting point by six months for the pistol possession.^[9]
• [12] The Judge accepted that the “lesser” role applied to Ms Harris in relation to the methamphetamine found in her handbag in 2017. However, it was a significant amount and, while he accepted some of the drug was for Ms Harris’ own use, he considered that some of it was certainly to be passed on or sold to others.^[10] He considered four years’ imprisonment was appropriate for this offending. He then applied an uplift of six months for possession of the taser and the other drugs.
• [13] This meant a combined starting point of ten years’ imprisonment. The Judge reduced this by three years for totality (30 per cent). The adjusted starting point was therefore seven years’ imprisonment. This was then uplifted by three months (3.5 per cent) for personal aggravating factors. This was primarily because Ms Harris had removed her EM bail bracelet and had gone on to commit serious offending.^[11] Ms Harris also had prior drug convictions. However, the uplift needed to be balanced against the time Ms Harris had successfully spent on EM bail.
• [14] The Judge then allowed a 15 per cent discount for the matters raised in the s 27 report.^[12] He regarded the deprivation Ms Harris suffered in her early life and her addiction as factors causally connected to her offending. He considered the extent of the discount needed to be tempered against the opportunities Ms Harris had previously had to rehabilitate, most recently in 2018. He considered a 15 per cent discount for her guilty plea was appropriate.^[13] This resulted in an overall end sentence of five years and three months’ imprisonment, which the Judge imposed for the manufacturing and supply of methamphetamine charges.^[14]

Appeal

Starting point

• [15] Ms Pecotic, counsel for Ms Harris, submits the Judge’s starting point for the lead offending (manufacturing methamphetamine in 2019) was excessive. She refers to Roulston v R by way of comparison.^[15] That case involved manufacturing methamphetamine (with a total quantity of 113 g) and related supply charges as well as unlawful possession of a pistol. The appellant was also found with $23,240 in cash. The quantity of methamphetamine put the offender into the middle of band two of Zhang. The appellant’s role was regarded as being a small-time commercial manufacturer and an addict who manufactured for personal use. This Court considered six years’ imprisonment was the appropriate starting point for the manufacturing charge.
• [16] Ms Pecotic says that the quantity in Ms Harris’ case puts her towards the lower end of band two of Zhang. She maintains that Ms Harris had a “lesser” role as described in Zhang. She notes that the material found was in a liquid or a low purity state. She says she that Ms Harris was a functioning addict producing poor quality methamphetamine for her own consumption. She submits the starting point for the manufacturing charge should have been three years’ imprisonment. She accepts the Judge’s uplift of six months’ imprisonment for the possession of the pistol was appropriate.
• [17] For the 2017 offending, Ms Pecotic says a starting point of three and a half to four years’ imprisonment would have been appropriate. Again, she says that Ms Harris fitted into the “lesser” category of Zhang, with the quantity and range of drugs reflecting her spiralling drug addiction. Ms Pecotic says the uplift for the possession of the taser should have been three months rather than the six months the Judge adopted.
• [18] Ms Pecotic says that a discount for totality from this adjusted combined starting point of at least 18 to 24 months would have been appropriate. This would mean a sentence of five and a half to six years’ imprisonment before mitigating factors.
• [19] The Crown submits the Judge’s starting point on the lead charge was appropriate. It does not accept that the methamphetamine manufactured was of poor quality. The testing results before the District Court showed that 28.4 g had a purity of 56 per cent, while 14.7 g had a purity of 75 per cent. The remaining 8.4 g was not tested but, even if that untested amount was not included, the quantity was still squarely within band two of Zhang. The Crown also says that Ms Harris was not in the “lesser” category of Zhang: she was not playing a limited function under direction. Rather, she played a central role and necessarily had an awareness and understanding of the scale of the operation.
• [20] The Crown also supports the Judge’s starting point with reference to the two High Court cases he referred to. One of those, R v Hita, dates back to 2007.^[16] In that case, the Judge said that seven years’ imprisonment would be an appropriate starting point for a “cook” who manufactured 40 to 60 g of methamphetamine. However, we do not regard that decision as particularly helpful given that it pre‑dates Zhang. The other case, R v Griffin, is more recent.^[17] It is, however, not particularly comparable. It involved a representative charge of supplying methamphetamine, possessing 37 g of methamphetamine for supply, and various firearms charges. It involved an apparently significantly more commercial operation, given the presence of a range of firearms and $38,216 in cash. A starting point of four years’ imprisonment was reduced to three and a half years’ imprisonment on the basis of parity with a co-offender who received a lesser sentence.^[18] If a comparison is to be made with that case, we consider a starting point of less than four years’ imprisonment would have been appropriate for Ms Harris’ offending given the apparently greater commerciality of the operation in Griffin.
• [21] We consider the starting point adopted by the Judge was too high. We agree with Ms Pecotic that the quantity of methamphetamine put the offending towards the lower end of band two. Based on quantity alone, that would suggest a starting point of three to three and a half years’ imprisonment. However, we agree with the Judge that Ms Harris did not have a “lesser” role. The only relevant indicia for a “lesser” role was Ms Harris’ addiction, which undoubtedly drove her offending. However, it was her own operation and we agree with the Judge that some of what she produced was intended to be sold. We consider her role was at the lower end of significant. Given that role and the quantity of methamphetamine involved, we agree with Ms Pecotic that a three-year starting point for the manufacturing charge was appropriate.
• [22] We would not disturb the Judge’s uplift of six months for the possession of the pistol. Nor would we disturb the Judge’s starting point of four years’ imprisonment for the drugs found in Ms Harris’ possession in 2017. The quantity of methamphetamine found puts that offending closer to the middle of band two and the presence of the other drugs, the tick book and the cash indicates a degree of commerciality, albeit driven by Mr Harris’ own addiction. We agree with the Judge’s uplift of six months for the possession of the taser and the other drugs.^[19]
• [23] That would mean a combined starting point of eight years’ imprisonment before totality, compared with the Judge’s ten-year combined starting point. We agree with the Judge that it was appropriate to make a substantial totality adjustment. This was effectively spate offending while Ms Harris was in the grips of addiction. Given the lesser combined starting point we have taken, we consider a totality adjustment of two years’ imprisonment (or 25 per cent) is appropriate. This would mean an adjusted overall starting point of six years’ imprisonment.
• [24] Standing back and looking at the offending as whole, that starting point sits appropriately within the bands in Zhang. The combined quantity of methamphetamine puts the offending in the middle of band two (that is, five to six years’ imprisonment). A combined starting point of five years’ imprisonment would reflect Ms Harris’ role at the lower end of “significant” (2019) and “lesser” (2017). It also sits appropriately alongside the six-year starting point in Roulston because, although the combined quantity of methamphetamine is similar, the level of commerciality was greater in that case (as the Crown accepts). An overall starting point of six years’ imprisonment is then appropriate in light of the pistol, the taser, and the small quantities of other drugs found in Ms Harris’ possession in 2017.

Uplift for personal factors

• [25] Ms Pecotic submits that the Judge should not have uplifted the sentence for Ms Harris’ prior offending when she had not a received custodial sentence for that offending. We do not accept this submission. Ms Harris did have relevant prior convictions and the opportunity to address her offending through the intensive supervision sentence to which she was subject. For the present offending, she had the further opportunity to rehabilitate because she was granted EM bail to an address where she was to participate in a residential rehabilitation programme. She absconded a few days later when she was refused permission to attend her grandmother’s funeral. She did not return after that but went on to offend.
• [26] The Judge applied a modest uplift of three months for removing the EM bracelet, offending on bail, and prior offending, balanced against the time Ms Harris successfully spent on EM bail. We consider this modest uplift appropriately reflected the combination of these factors in the circumstances.

Discounts

• [27] Ms Pecotic submits a discount of 20 to 25 per cent was warranted for Ms Harris’ personal circumstances rather than the 15 per cent the Judge allowed. She emphasises that Ms Harris’ addiction arose from an upbringing in a dysfunctional family that set her trajectory in life. Ms Pecotic also says that Ms Harris utterly regrets her actions.
• [28] The Judge referred to the relevant matters in the s 27 report when deciding on a 15 per cent discount. We consider the discount was appropriate for those matters. It is also consistent with the discount not uncommonly allowed by this Court for such matters.^[20]
• [29] Ms Pecotic also submits that a greater discount could have been allowed for Ms Harris’ guilty pleas. She submits that a 20 per cent discount would have been appropriate on the second set of charges. On those charges Ms Harris was arrested on 1 May 2019 and pleaded guilty on 17 December 2019. This was at a second callover following resolution discussions.
• [30] We agree that the discount for the guilty plea could have been greater on the second set of charges. But on the other hand, the guilty pleas on the 2017 offending were not prompt, having been entered on 13 July 2018 on the Friday before Ms Harris’ trial was scheduled to commence. Sentencing itself was delayed and Court resources were spent when she failed to appear for sentencing. Both pleas were also entered in the context of a strong prosecution case. In these circumstances, an overall discount of 15 per cent for the guilty pleas on both sets of charges is unimpeachable.
• [31] A total discount of 30 per cent to a starting point of six years’ imprisonment leads to an end sentence of four years and two months’ imprisonment, plus the three‑month uplift for personal aggravating factors. This brings the end sentence to four years and five months’ imprisonment. This contrasts with the end sentence of five years and three months’ imprisonment imposed in the District Court. We therefore conclude that the sentence the Judge imposed was manifestly excessive.

Result

• [32] The appeal against sentence is allowed.
• [33] On the charges of manufacturing methamphetamine and possession of methamphetamine for supply, the existing concurrent sentences of five years and three months’ imprisonment are quashed.
• [34] Concurrent sentences of four years and five months’ imprisonment are substituted.
• [35] The existing concurrent sentences on the other charges remain as imposed in the District Court.

Solicitors:
Crown Solicitor, Auckland for Respondent

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^[1] R v Harris [2020] NZDC 7958 [Sentencing notes].

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

^[3] Section 7(1)(a) and (2), maximum penalty six months’ imprisonment and $1,000 fine for Class A and three months’ imprisonment and $500 fine for Class B.

^[4] Arms Act 1983, s 45(1)(b), maximum penalty four years’ imprisonment and $5,000 fine.

^[5] Summary Offences Act 1981, s 11(1)(a), maximum penalty three months’ imprisonment or $2,000 fine.

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

^[7] Arms Act, s 45(1)(b).

^[8] Sentencing notes, above n 1, at [28], referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [126].

^[9] At [29].

^[10] At [31].

^[11] The Judge referred to this as an uplift for personal aggravating factors, but there was a charge of wilful damage to the EM bracelet and a concurrent sentence of one month’s imprisonment was imposed for that charge.

^[12] Sentencing notes, above n 1, at [37].

^[13] At [38].

^[14] Using the new sentencing methodology in Moses v R [2020] NZCA 296 the end sentence would be five years and one month’s imprisonment.

^[15] Roulston v R [2020] NZCA 255.

^[16] R v Hita HC Auckland CRI-2006-092-305, 1 June 2007.

^[17] Griffin v R [2020] NZHC 548.

^[18] At [12]–[16].

^[19] Compare with Mills v R [2016] NZCA 245 at [18], where this Court refers to uplifts of 12 to 18 months for firearms offending associated with drug dealing. We note, however, that the appropriate uplift depends on the circumstances and a number of cases have involved uplifts of six months: see for example Tuuta v R [2019] NZHC 2799 at [30]; and R v Smith [2018] NZHC 2188 at [22].

^[20] See, for example, Waho v R [2020] NZCA 526 at [33]; Court-Clausen v R [2020] NZCA 488 at [40]; Woodstock v R [2020] NZCA 472 at [35]; Carr v R [2020] NZCA 357 at [67] and [71]; Moses v R, above n 14 at [70]; and Davidson v R [2020] NZCA 230 at [34].