Steffe v Police [2014] NZHC 980 (12 May 2014)

Last Updated: 26 May 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-14 [2014] NZHC 980

BETWEEN	PHILIP ANDREW STEFFE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	12 May 2014
Appearances:	J F Mather for Appellant J MacGibbon and T Hu for Respondent
Judgment:	12 May 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

PHILIP ANDREW STEFFE v NEW ZEALAND POLICE [2014] NZHC 980 [12 May 2014]

[1] Mr Steffe pleaded guilty in the District Court to one charge of importing the Class B controlled drug Gamma-Butyrolactone (“GBL”). On 19 December 2013, Judge Ronayne sentenced Mr Steffe to two years four months imprisonment on that charge.¹ Mr Steffe appeals against sentence on the basis that the Judge erred in principle in several respects, and that this produced an end sentence that was manifestly excessive.

The facts

[2] The facts giving rise to the offending were contained in a summary of facts that was the subject of considerable negotiation between the parties. This records that between 15 January 2012 and 18 July 2012, Mr Steffe made several importations of a product from the United States of America called EZFlow Tip Blender. This is a nail softening product produced in the United States, and generally contains 70 to 80 per cent GBL. Without alteration, it may be used as a drug of the so called “date rape” type commonly known as Fantasy.

[3] The summary records that GBL was contained in 15 such importations, and that Mr Steffe thereby imported a total of 9.5 litres of the drug. He sold the drug to an unknown associate.

The structure of the sentence

[4] The Judge considered that the offending required a starting point of three years six months imprisonment. He then reduced that sentence by six months to reflect the fact that Mr Steffe had been subject to onerous curfew conditions for a considerable period prior to sentence. He then applied a discount of 20 per cent to reflect Mr Steffe’s guilty plea. Finally, he applied another small discount to provide Mr Steffe with the least restrictive outcome in the circumstances. This produced an

_{end sentence of two years four months imprisonment.}

¹ R v Steffe DC Auckland CRI-2012-004-017191, 19 December 2013.

The appeal

[5] On appeal, counsel for Mr Steffe contends that the Judge applied a starting point that was too high having regard to the circumstances of the offending. He also submits that the Judge gave Mr Steffe insufficient credit for his guilty plea, and for remorse that he demonstrated following his arrest.

Starting point

[6] This issue needs to be considered having regard to the background against which the Judge sentenced Mr Steffe. On 18 April 2013, Judge Ronayne conducted a sentence indication hearing at Mr Steffe’s request. At that time, the summary of facts recorded that Mr Steffe had made 33 individual importations of GBL and that he had imported just under 20.5 litres of the drug. The Judge considered that the offending fell within the category of offending identified in R v Wallace as justifying

a starting point of up to five years imprisonment.² He considered the offending

attracted a four year starting point. When Judge Ronayne sentenced Mr Steffe on

19 December 2013, he was clearly aware of the fact that the summary of facts had been amended significantly. This is evident because the Judge observed that Mr Steffe had successfully imported 9.5 litres of EZFlow Tip Blender in 15 separate importations.

[7] Counsel for Mr Steffe submits that a starting point of three years six months imprisonment was too high having regard to the amendments made to the summary of facts and, in particular, to the reduction in the number of importations and the quantity of drug imported. He relies, as does the Crown, on R v Leone³ in which the offender had imported 20 litres of GBL. In that case, the Judge adopted a starting point of four years imprisonment. Similarly, in R v Carson⁴ the offender was sentenced on a charge of importing 13 packages containing a total of 2.0627 kilograms of Gamma Hydroxy Butyrate (GBH). This is a similar drug to GBL, but is a precursor ingredient of date rape drugs and cannot be ingested in its own right.

_{In that case, Wylie J adopted a starting point of three years imprisonment.}

² _{R v Wallace [1999] 3 NZLR 159 at [37] (CA).}

³ _{R v Leone HC Auckland CRI-2007-004-018646, 1 October 2009.}

⁴ R v Carson [2013] NZHC 1967.

[8] Counsel for the Crown refers me to Hartman v R,⁵ in which the appellant had imported 15.5 litres of GBL over a period of approximately four months. The Judge who sentenced the appellant in that case had not identified the starting point applied in respect of the charges relating to GBL. Instead, he had adopted an overall starting point that also reflected other forms of offending. The Court of Appeal observed that even if the sentencing Judge had adopted a starting point of six years imprisonment on the GBL charges, an overall starting point of eight years imprisonment could not be regarded as excessive. Counsel for the Crown submits that a starting point of three years six months imprisonment in the present case cannot be regarded as excessive having regard to the comments of the Court of Appeal in Hartman.

[9] I consider that the cases most analogous with the circumstances of the present case are Leone and Carson. It is difficult to draw much guidance from Hartman, because the actual starting point adopted in relation to the GBL offending cannot be ascertained. Mr Steffe’s culpability arose in the present case out of the fact that he had imported 9.5 litres of GBL on 15 separate occasions. Importantly, however, the Judge appears to have accepted at the sentence indication hearing that Mr Steffe was acting largely on the instructions of others and derived little or no profit himself from the sale of the drug. Nevertheless, this was commercial importation and distribution of a Class B controlled drug. It must also have involved a significant element of premeditation given the repetitive nature of the offending.

[10] Having regard to those factors and the quantity imported, I consider that an appropriate starting point on the charge would have been a sentence of around three years imprisonment. I therefore conclude that the Judge adopted a starting point that was too high having regard to the overall circumstances of the offending.

Was the discount that the Judge adopted too low?

[11] I do not accept that the submission that the Judge ought to have applied a

discrete discount to reflect Mr Steffe’s remorse. The submission is not borne out by

_{pre-sentence report. It was also not a factor that counsel Mr Steffe relied on at}

⁵ Hartman v R [2010] NZCA 90.

sentencing in the District Court. In the absence of any concrete demonstration of remorse, the Judge was not required to apply a discount in relation to this factor.

[12] Different considerations apply in relation to the discount to be given to the guilty plea. At the sentence indication hearing, the Judge noted that a 20 per cent discount for a guilty plea would be justifiable given the fact that approximately seven months had passed since the date upon which Mr Steffe was arrested. He decided, however, to take a generous view of the appropriate discount. He therefore indicated that he would provide a 25 per cent discount for a guilty plea in the event that it was entered shortly thereafter.

[13] When the Judge ultimately sentenced Mr Steffe on 19 December 2013, he noted that he had been prepared back in April 2013 to take a generous view of the appropriate discount. He did not still feel constrained to take the same view, however, given the delay that had occurred since the sentence indication hearing. These comments raise the possibility that the Judge was not aware that, although Mr Steffe had rejected the sentence indication, he had nevertheless entered his guilty plea just a few days later. The tenor of the Judge’s remarks is to the effect that there was some considerable delay before Mr Steffe entered his guilty plea.

[14] In those circumstances, I consider that Mr Steffe is entitled to the benefit of the doubt and that a discount of 25 per cent was appropriate notwithstanding the fact that, as the Crown points out, the evidence against him was undoubtedly strong.

Was the end sentence manifestly excessive?

[15] The matters to which I have referred suggest that a starting point of three years imprisonment was appropriate. From that, it would be necessary to make a proportionate reduction to reflect the fact that Mr Steffe remained on remand subject to very restrictive bail conditions for a considerable period. A discount of five months would be appropriate to reflect this factor. This leaves an end sentence of 31 months imprisonment prior to the discount to be given for the guilty plea. Applying a discount of 25 per cent, a reduction of eight months is warranted. This results in an end sentence of 23 months imprisonment. Having regard to that conclusion, I am

satisfied that the sentence the Judge imposed was manifestly excessive, and that it needs to be adjusted accordingly.

Home detention?

[16] The thrust of Mr Mather’s submissions was to the effect that, if the Court concluded that a sentence of two years imprisonment or less was appropriate, a sentence of home detention should be imposed. This would lead to practical difficulties in the present case, because Mr Steffe has now served approximately five months of his sentence. Any sentence of home detention would therefore need to be for a term of approximately three to four months. Moreover, no home detention appendix has yet been prepared, so there would be a further delay whilst this was undertaken.

[17] More importantly, however, I take the view that a sentence of home detention would not be sufficient to meet the sentencing principles of deterrence, denunciation and accountability. This was serious offending because it involved the importation of a Class B drug on several different occasions. Although Mr Steffe may not have derived a great deal of financial reward from the offending, he nevertheless accepts that he received some reward for his efforts. It also resulted in the sale of a reasonably considerable quantity of GBL.

Result

[18] The appeal is accordingly allowed. The sentence of two years four months imprisonment is quashed. In its place, I substitute a sentence of one years 11 months

_{imprisonment.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

J F Mather, Albany