Scott v The Queen

[2021] NZHC 1853

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-24

[2021] NZHC 1853

BETWEEN

JADEN JAMES SCOTT

Appellant

AND

THE QUEEN

Respondent

Hearing:

21 July 2021

Appearances:

C Horsley for the Appellant

J Williams for the Respondent

Judgment:

21 July 2021

JUDGMENT OF GAULT J

This judgment was delivered by me on 21 July 2021 at 5:00 pm.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr C Horsley, Barrister, Tauranga

Mr J Williams, Hamilton Legal, Office of the Crown Solicitor, Hamilton

SCOTT v R [2021] NZHC 1853 [21 July 2021]

[1]                 Mr Scott appeals his sentence of two years and four months’ imprisonment imposed by Judge K B F Saunders in the Hamilton District Court on 13 January 2021.1 Following a sentence indication, Mr Scott pleaded guilty to the following four charges:

(a)supplying methamphetamine;2

(b)offering to supply methamphetamine;3

(c)conspiracy to supply methamphetamine;4 and

(d)offering to supply cannabis.5

The offending

[2]                 In 2019, Waikato Police engaged in an investigation (Operation Hays) into the distribution of methamphetamine in the Waikato region. Mr Scott and his co-defendant Mr Le Noel were identified as being involved in the commercial sale and supply of methamphetamine.

[3]                 Text data was analysed for July 2019 showing that Mr Scott and Mr Le Noel discussed purchasing two ounces of methamphetamine for on-selling. They also discussed potential future financial yields if they were able to source greater quantities of methamphetamine.

[4]                 The analysed data revealed that Mr Scott supplied at least 9.5 grams of methamphetamine. He and Mr Le Noel also discussed collecting debt for past sales and supplying the drug on credit. The data also showed that Mr Scott offered to supply cannabis on a few occasions; an ounce on one occasion, one pound on another and on other occasions quantities were not identified.

1      R v Scott [2021] NZDC 346.

2      Misuse of Drugs Act 1975, s 6(1)(c) and (2). Maximum penalty life imprisonment.

3      Misuse of Drugs Act 1975, s 6(1)(c) and (2). Maximum penalty life imprisonment.

4      Misuse of Drugs Act 1975, s 6(2A). Maximum penalty 14 years’ imprisonment.

5      Misuse of Drugs Act 1975, s 6(1)(d) or (e) and (2). Maximum penalty 8 years’ imprisonment.

[5]                 When spoken to by Police, Mr Scott admitted the facts outlined and said he had sold methamphetamine in small quantities to friends and sex workers. He spoke about organising to buy more methamphetamine with Mr Le Noel but said he did so in order to feed his own drug dependency.

District Court decision

[6]                 The Judge referred to her sentence indication dated 7 July 2020, which indicated a starting point of three years and six months’ imprisonment (band 2 of Zhang v R),6 with an uplift of six months for the cannabis offending to four years’ imprisonment. She noted that in the indication, she told Mr Scott his guilty plea would attract a 20 per cent discount, and there would be further discounts available if he could show a link between his addiction and the offending, and also for time spent on electronically monitored (EM) bail.

[7]                 The Judge recorded that after Mr Scott accepted the indication, sentencing was adjourned to enable him to provide detailed information about his self-reported addiction to methamphetamine and why it drove him to commit the offending.

[8]                 The Judge noted that the pre-sentence report recommended imprisonment and was “not a positive report for [Mr Scott] at all”. The report assessed Mr Scott at high likelihood of re-offending as he had taken no steps to engage in rehabilitative interventions. The report writer stated that Mr Scott had not yet completed any substance abuse programmes and that he considered a residential programme would be a backwards step for him with reintegration and employment being the key to rehabilitation. The report writer said that Mr Scott had self-reported to Care NZ and that he was motivated to comply with a community-based sentence but that was assessed at medium.

[9]                 The Judge explained that when she adjourned sentencing, she had an affidavit sworn by Mr Scott, in which he said in relation to addiction that Mr Le Noel collected him off a bus and making that decision was the biggest regret of his life because he ended up selling methamphetamine and using methamphetamine. Prior to that he had

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

been anti other people using it, because he had used it before and had got rid of the habit. Mr Scott said he thought methamphetamine was a bad drug; however, he “started again and ended up with a real problem with it”. Mr Scott then went on to express remorse.

[10]              The Judge said that was the extent of what she knew about Mr Scott’s use of methamphetamine. She did not know how much methamphetamine he was using nor over what period, nor anything about his prior use of it. The Judge said she now had an email from Care NZ stating that Mr Scott had completed a comprehensive assessment, attended four individual appointments and completed a two-part psycho- educational group. The email also noted Mr Scott had begun the relapse prevention change group Living Free, attending one group session, but there was some confusion with EM bail, and he did not attend and subsequently was discharged. The Judge noted that Mr Scott did refer to contacting Care NZ at the beginning of 2020 in his affidavit: he said that while COVID-19 interrupted this, he had begun one-on-one counselling about a month and a half prior, and attended a two-day course.

[11]              The Judge noted that Mr Scott was entitled to a discount for the 14 months he had already spent on EM bail without any issue. She acknowledged Court of Appeal authority stating that discounts in excess of 50 per cent are “really not within principle”. Standing back, and because there had been some relaxation of EM bail to enable Mr Scott to care for his daughter, the Judge allowed a discount of eight months for time spent on EM bail.

[12]              Next, the Judge considered  whether  there  was  a  causal  nexus  between  Mr Scott’s self-reported methamphetamine addiction and the offending. She said:

... The discount should be based on persuasive evidence and you need to establish on the balance of probabilities that there was that real nexus between your own addiction and this offending. In some cases discounts of up to 30 per cent are given to recognise that addiction-driven offending is just that, it is offending that is driven by an addiction and not by significant elements of for example profit and so on.

I am of the view that the material before me is not persuasive to the degree that the Court of Appeal in Zhang said would warrant a substantial discount. At best all I know is as I have already said your self-report in your affidavit that you turned to methamphetamine once Mr Le Noel picked you up off that bus and ended up with a real problem. I am not saying you do not have an

addiction to methamphetamine because that is indeed what Mr Buckle says led to your offending. I do not agree with his submission that I do not need to have any independent evidence because I think I do. There needs to be more than just you saying you have a real problem with it to warrant a significant discount. I acknowledge Mr Buckle has said that you have stayed clean. You managed to get clean while time on EM bail and you have stayed clean. You have started a business of selling trailers and you are committed to maintaining a drug-free life and while I have significant sympathy for you and I appreciate that a custodial sentence is onerous in itself, simply within principle I cannot give a substantial discount to you on the material before me. It is simply not there. I recognise and acknowledge your addiction by a discount of two months only.

[13]              The Judge therefore imposed an end sentence of two years and four months’ imprisonment.

Approach on appeal

[14]              To succeed on an appeal against sentence, Mr Scott must satisfy the appeal court that there has been an error in the imposition of the sentence, whether intrinsically or as a result of additional material submitted on appeal,7 and that a different sentence should be imposed.8 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.9 The appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.10

Application to adduce further evidence

[15]              The focus of the appeal is on the discount for addiction available in accordance with Zhang v R.11 Mr Horsley, for Mr Scott, seeks leave to produce a drug and alcohol assessment report dated 29 June 2021, prepared by Ms Cade. Mr Horsley submits the information contained in the report is both credible and relevant, and ought to be admitted on appeal. While Mr Horsley acknowledges the usual rule that further evidence on appeal must be “fresh”, he submits that if the evidence is nonetheless

7      R v Shipton [2007] 2 NZLR 218 (CA) at [139].

8      Criminal Procedure Act 2011, s 250(2).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

10     Ripia v R [2011] NZCA 101 at [15].

11     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].

relevant and may have a potential impact on the sentence, then it ought to be admitted. He submits the ultimate question is what will best serve the interests of justice.

[16]              This morning I received a further brief affidavit from Mr Scott seeking to explain why he did not obtain an addiction assessor’s report for sentencing.

[17]              Mr Williams, for the respondent, submits that for evidence to be admitted on appeal it must ordinarily be fresh, credible and cogent. But he acknowledges that evidence  that is not  fresh may be admitted on  appeal in the  interests  of justice.  He observes that Mr Scott was invited to produce evidence of issues with addictions and their  nexus  to  the  offending  at  the  sentence  indication  on  7  July  2020.  On 30 October 2020, sentencing was adjourned, in part to allow Mr Williams a further opportunity to provide such information. Mr Williams submits that, against that backdrop, when sentencing proceeded on 13 January 2021, Mr Scott had had more than five months to furnish an independent report ahead of sentencing but failed to do so.

[18]              Given the sequence of events before sentencing in the District Court, I consider the further evidence is not fresh. It should have been produced at sentencing. Nevertheless, as Mr Williams acknowledges, evidence that is not fresh may be admitted on appeal in the interests of justice. In the circumstances, it is unnecessary to consider further Mr Scott’s explanation for not obtaining the report for sentencing. I have reviewed Ms Cade’s report. It contains helpful detail as to Mr Scott’s background, extending beyond addiction. In relation to drug and alcohol issues, the report details Mr Scott’s substance use history, previous treatment and the reasons why he did not pursue referral to Odyssey House, which explains some of the negative comments in the pre-sentence report. I consider Mr Williams responsibly said that, in circumstances where the information contained in the report may be considered cogent and credible, the respondent is neutral in respect of its admission. In the particular circumstances of this case, and without encouraging the submission of further reports on appeal, I consider it should be admitted. I consider it goes further than the information before the Judge at sentencing.

Discount for addiction

[19]              Mr Horsley submits the single issue on appeal is that if this information regarding addiction and the link with the offending had been before the Court, it could have resulted in:

(a)a significantly greater reduction than two months for personal mitigating matters; and

(b)an end sentence of home detention.

[20]              Mr Horsley submits that, in light of the Judge’s comments that evidence of addiction linked to the offending would have resulted in a greater discount for personal mitigating factors, the sentence is manifestly excessive. He submits that, even allowing for a discount of between 15 and 20 per cent, the result would have been an end sentence of between 20 and 22.5 months’ imprisonment. He submits this would raise the issue of whether or not a sentence of home detention should be imposed, and consideration of ss 8(g) and 10A of the Sentencing Act 2002, that is the need to impose the least restrictive outcome. The pre-sentence report assessed the possibility of home detention and concluded that both the address proposed, and Mr Scott, were suitable for such a sentence.

[21]              The key issue, however, is whether the further report shows that addiction was causative of the offending. As Mr Williams submitted, in Zhang the Court of Appeal said:12

... we accept that non-causative addiction will be of little mitigatory relevance, as is the case with a non-contributory mental health condition ...

[22]              The Court said that addiction may give rise to a discount of up to 30 per cent (although that is not an absolute upper limit) depending on the extent to which it mitigates moral culpability for the offending.13

12     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [147].

13 At [149].

[23]              As Mr Williams submits, while the  report  prepared  by  Ms  Cade  details Mr Scott’s history of drug abuse, it is silent as to the offending in question and the extent of any causative link between addiction and the offending. In particular, the report is silent as to whether, at the time Mr Scott formed the intention to offend by selling methamphetamine, he was suffering from  addiction  to  methamphetamine. In that regard, the report does not change the position stated in Mr Scott’s affidavit, that he “had got rid of the habit”, and only started using methamphetamine again after he said yes to offending with Mr Le Noel.

[24]              Mr Horsley acknowledges that evidence but submits that a broader view of causation is required and a discount of at least 15 per cent is warranted. He submits that Mr Scott’s susceptibility to Mr Le Noel’s invitation was due to his background, including but not limited to his history of drug abuse, and there is a real and legitimate link. I accept that a common sense approach to causation is required and the nexus between personal background circumstances and offending needs to be assessed in the round. I return to this below. But here the evidence does not indicate that Mr Scott’s offending was caused by methamphetamine addiction. Mr Scott did say his problem with alcohol was a factor in his initial decision to accept Mr Le Noel’s invitation to offend, but the Judge was aware of this, and as Mr Williams submitted the evidence did not indicate that alcoholism was causative of the offending either.

[25]              I therefore do not consider the Judge erred in allowing only a two month (four per cent) discount for Mr Scott’s methamphetamine addiction.

[26]              Even so, as Mr Williams acknowledges, based on the further report it is appropriate for some discount to be applied in relation to Mr Scott’s broader history and personal circumstances. Adopting Mr Horsley’s broader point, I accept Mr Scott faced childhood trauma and deprivation, which may have led him into early drug use, and that there is some nexus between his background and the offending. I consider a discount of ten per cent (including the four per cent given) would have been appropriate had the Judge had the further report.

Overall sentence

[27]              On appeal the Court is concerned with the end sentence. As Mr Williams submits, the Court must step back and consider whether the ultimate sentence was manifestly excessive. No issue is taken with the starting point of four years’ imprisonment. Mr Williams submits it is relevant that the eight month discount given for time spent on EM bail was generous in the circumstances. Mr Scott had spent approximately 14 months on EM bail with some relaxation over time for him to care for his daughter. This discount amounts to approximately 57 percent of the time he spent on EM bail.

[28]              As Mr Williams submits, the Court of Appeal has previously said that discounts of more than 50 percent of the time spent on EM bail are generally beyond what can be given on a principled basis.14 This was acknowledged by the Judge at sentencing. Mr Williams submits that a more appropriate discount for time spent on EM bail may well have been something in the vicinity of 30 to 40 percent of the 14 months spent given the relaxed conditions imposed. On this basis, he submits that even if the Court on appeal were minded to give a greater discount for personal circumstances, when considering the overall sentence imposed, the Judge’s decision cannot be said to be manifestly excessive.

[29]              I agree with Mr Williams that the Judge was generous in relation to the discount for the time spent on EM bail. A discount of less than 50 per cent of the time spent on EM bail may have been appropriate insofar as the EM bail conditions were relaxed, but I consider that a discount of up to 50 per cent of the time spent would have been within range. That is seven months.

[30]              Converting this seven months to a percentage discount of 14.5 (say 15) per cent in order to adopt the Moses v R approach to calculating a net discount,15 and adding the 10 per cent personal circumstances discount and the 20 per cent guilty plea discount, Mr Scott’s net discounts should be 45 per cent of the adjusted starting point of four years’ imprisonment. This would result in an end sentence of two years and

14     Parata v R [2017] NZCA 48; and R (CA528/16) v R [2017] NZCA 210.

15     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

two months’ imprisonment. I therefore do not consider the sentence imposed was manifestly excessive. Interfering for a difference of only two months would be tinkering.

Result

[31]The appeal is dismissed.

Gault J