IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000024 [2015] NZHC 1069

BETWEEN	SHANNON REEDY
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	19 May 2015	

Appearances:	
N J Hansen for Appellant
S E Burdes for Respondent	

Judgment:	
19 May 2015	

JUDGMENT OF DUNNINGHAM J

[1]       Mr  Reedy  appeals  against  his  sentence  of  two  years,  three  months’ imprisonment on one charge of male assaults female and one of possession of cannabis for supply.1

[2]       The appeal is advanced on the basis that the uplift for previous convictions was too high.  If this argument is accepted, Mr Reedy’s lawyer, Ms Hansen, says that it will take the sentence to the point where home detention can be considered.  If this is the case, it is argued that home detention would be appropriate.   The Crown opposes.

The offending

[3]       I  do  not  need  to  detail  the  offending  in  full.    Suffice  to  say  that  on

4 December 2014, Mr Reedy was issued with a police safety order arising from a domestic incident with his then partner.  The order was to endure for a period of five
days.  However, two days later, a verbal altercation ensued between Mr Reedy and

1	Police v Reedy [2015] NZDC 4541.

REEDY v NEW ZEALAND POLICE [2015] NZHC 1069 [19 May 2015]

his partner, which descended into physical pushing and threats.  Mr Reedy’s partner

called the police.

[4]       When police attended the scene of the domestic dispute, they undertook a search of the property in reliance on the provisions of the Search and Surveillance Act 2012.  The search yielded a bucket containing cannabis, which was separated into four one ounce bags with a combined total weight of 125 grams.  In Mr Reedy’s vehicle the police also located a bag containing $9,000 in cash, in denominations of
$20 and $50.

The District Court sentencing

[5]       In sentencing Mr Reedy, Judge Garland recognised that he was required to take into account the principles and purposes of sentencing in ss 7 and 8 of the Sentencing Act 2002.  In particular, His Honour took into account the need to hold Mr Reedy accountable for the harm he had done, and the principles of denunciation and deterrence.   It was noted that in drug offending, personal circumstances carry little weight.   In terms of principles, consistency and the least restrictive outcome were focused on.

[6]       In  relation  to  the  lead  offence,  Judge  Garland  relied  on  the  guideline judgment R v Terewi.2   It was considered that the offending fell within category two of Terewi, with starting points of between two and four years.3   It was also observed that the Court of Appeal has confirmed that any commercial dealing, no matter how trivial, fits within this category.4

[7]       Judge Garland therefore fixed this offending as coming in at the bottom end of category two and took a starting point of two years’ imprisonment.   From the starting  point,  Judge  Garland  recognised  Mr  Reedy’s  extensive  criminal  history
would require an uplift.  He said:5

2	R v Terewi [1999] 3 NZLR 62 (CA).
3	At [4].
4           R v Andrews [2000] 2 NZLR 205 (CA) at [8], where the Court of Appeal stated “the key point is that if the offending involves any commercial element at all, the power to suspend [a sentence] may be exercised only in exceptional circumstances”.
5	Police v Reedy, above n 1, at [21].

[Your criminal history] starts back in 1991; possession of cannabis, 1994; possession of cannabis, 2000; possession of Class B, and possession of Class C, 2003; you have a number of convictions for supplying a Class B drug, possession for supply morphine, possession of morphine, possessing for supply cannabis, and possessing for supply cannabis.   In 2004 you have convictions  for  selling  cannabis,  conspiring  to  deal  a  Class  A  drug, possession of cannabis and possession of LSD for supply. That is a serious history of drugs offending.   Bearing in mind that past history and the gap between your last offence and the present one, I uplift the starting point by nine months.

[8]     This resulted in an adjusted starting point of two years, nine months’ imprisonment.  From there, Judge Garland permitted a deduction of seven months for Mr Reedy’s guilty pleas, amounting to a deduction of around 21 per cent. An end sentence of two years, two months’ imprisonment was imposed.

[9]       Judge Garland then turned to consider the male assaults female charge, which he recognised was at the lower end of the spectrum.  A starting point of six weeks’ imprisonment was taken, reduced to one month for guilty plea.  The one month was imposed cumulatively.  I note, however, that no challenge is made to this component of the sentence.

Jurisdiction

[10]     Mr Reedy is able to appeal the sentence imposed as of right.6   This Court, as first appeal Court,7 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.8

[11]     Toogood J recently captured the essence of the second limb of the s 250 test in Larkin v Ministry of Social Development:9

[26]      The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

6	Criminal Procedure Act 2011, s 244.
7	Section 247.
8	Section 250.
9	Larkin v Ministry of Social Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].

[12]     In relation to appeals challenging an uplift for previous convictions, the Court of Appeal has commented:10

Section 9(1)(j)  of the Sentencing Act 2002 says that previous convictions must be taken into account, having regard to their seriousness and their relevance to the present sentencing exercise. The extent then to which such convictions are taken into account, and the manner in which they are taken into account, is a matter initially for the sentencing judge. On appeal, an assessment of the judge's evaluation will inevitably take place within the context of an inquiry into whether the final sentence is of an available type, and if so, whether it has been shown to be manifestly excessive. No specific rules can or should be prescribed.

The appeal against uplift

[13]     In presenting Mr Reedy’s case, Ms Hansen referred me to various authorities which she submitted highlight the disproportionate nature of an uplift of nine months from a starting point of 24 months, amounting to some 37 per cent.11    She submits that an uplift of no more than 12.5 per cent was appropriate.

[14]     The Crown’s response is that the selection of a few isolated cases, where the defendants had very few convictions, fails to take account of Mr Reedy’s particular criminal history.   It is the Crown’s view that the circumstances of his offending warrant the uplift imposed.

[15]     To address this issue I must consider the function that uplifting for previous convictions serves.  It is plain that Parliament expressly authorises the treatment of previous convictions as aggravating factors in assessing offending.12

[16]     The  Courts  have  explained  the  rationale  for  uplifting  for  prior  criminal history.  However, the practice discloses a tension between two principles which are difficult to reconcile – the deterrent aspect of punishment and the need to ensure a prisoner is not punished twice for the same offending.13   This tension was recognised
in Myers CJ’s judgment in R v Casey, where he said:14

10	Ripia v R [2011] NZCA 101 at [10] (emphasis added).
11	She refers to Tiplady-Korokehe v R [2012] NZCA 477; Hodgkinson v R [2012] NZCA 478;
Te Hau v R [2013] NZCA 431.
12	Sentencing Act 2002, s 9(1)(j).
13	This gives rise to issues under the New Zealand Bill of Rights Act 1990, s 26(2).  See too R v
Ward [1976] 1 NZLR 588 (CA).
14	R v Casey [1931] NZLR 594 (CA) at 597.  See too the formulation in R v Ward [1976] 1 NZLR

The Court should always be careful to see that a sentence of a prisoner who has  been previously convicted is not  increased  merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a prediliction to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public,  to  take  them  into  consideration  and  lengthen  the  period  of confinement accordingly.

[17]     Similar comments were made in Te Hau v R, where it was said:15

The  Sentencing  Act  2002  requires  the  Judge  to  take  into  account  a defendant’s previous convictions.   This Court has recently reaffirmed that although a prisoner is not to be punished again for past offending, nor should previous convictions be ignored “particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted”.

Issues of deterrence and protection of the public may bear upon the uplift that may be appropriate, but the uplift must remain proportionate to the starting point selected.  Previous convictions may also bear upon character.

[18]     Thus a criminal history in and of itself does not justify an uplift.  It must have some relevance to the current sentencing process, for example, by bearing on the blameworthiness of the present offending or on the increased need for further deterrence.

[19]     The principles in relation to uplifting the previous offending can therefore be stated as follows:

(a)       there will be no uplift for the bare existence of previous convictions –

to do so would be to punish offending more than once;

(b)	The permissible lines of reasoning, justifying an uplift, fall into three broad categories:

588 (CA) at 591; Beckham v R [2012] NZCA 290 at [84].
15	Te Hau v R [2013] NZCA 431 at [18].

(i)	previous convictions bearing upon character and culpability;

(ii)	indication  of  predilection  to  offend  in  a  specific  way  (an indicator of reoffending);

(iii)	the need to protect society by the imposition of a deterrent sentence.

This necessarily requires the uplift to be firmly tied to specific aspects

of the offender’s criminal history.16

(c)       the uplift must remain proportionate to the starting point fixed by the sentencing Judge.17

(d)       there is no fixed figure beyond which an uplift will be held to be disproportionate.18   This is a matter to be determined, at first instance, by the sentencing judge  having regard to  all  relevant  factors  (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).

[20]	Turning to the specific topic of drug offending, the authors of Adams on

Criminal Law observe:19

Previous convictions (at least for similar types of offending) may suggest that a “significant uplift” is required to vindicate the principle of deterrence, particularly where it is the dominant sentencing principle (such as in drug offending).

[21]	Even with drug offending, where principles of deterrence tend to dominate, regard must be had to the temporal relationship of the current offending and previous
convictions.	Thus, the weight of previous convictions will be diminished where

16	O’Connor v R [2014] NZCA 328 at [41].
17	See e.g. Tiplady-Koroheke v R [2012] NZCA 477; Hodgkinson v R [2012] NZCA 478.
18	Ripia v R [2011] NZCA 101 at [10].
19	Bruce Robertson Adams on Criminal Law –  Sentencing (online looseleaf ed, Brookers) at
[SA9.15(1)(b)], citing R v Arthur [2005] 3 NZLR 739 (CA);

there has been a substantial lapse of time between the last offending and the current;

that does not mean they cannot be accounted for however.20

[22]     In this case I must consider the uplift in context.  Mr Reedy has 17 prior drug related convictions including a large number of convictions for selling, possessing for supply and supplying drugs, with the last sentence imposed in December 2004. Since September 2003, Mr Reedy has received a total of eight years nine months’ prison time for drug related offending.  While, of course, he has not served all this time, it nevertheless makes the gap in time between his last period of offending less positive than it might otherwise seem.

[23]     I also note that the authorities cited by Mr Reedy’s lawyer do not clearly distinguish between an uplift in the context of a minor criminal history and the uplift that should be imposed with a serious and relevant criminal history such as the present.  The Crown has referred to R v Weston, where there was an uplift of around
23 per cent to account for previous convictions in the context of a serious history of drug offending.21

[24]     However, in all this, I observe that the rote recitation of what uplifts have been imposed in previous cases is not determinative, nor can sentencing be reduced to a series of arithmetical calculations.  It is a holistic exercise which the sentencing Judge is generally best placed to undertake.

[25]     That said, I accept that, in this case, the uplift was too high.  Having regard to the  principles  which  warrant  an  uplift,  I  think  that  a  25  per  cent  uplift  was appropriate to mark Mr Reedy culpability in continuing to offend in this way despite previous sentences of imprisonment, and to deter him from further offending.

[26]     However, the appellant has elected to focus on one aspect of the sentence, being the uplift, to the exclusion of all else.  It is still necessary to cross-check any error identified against the sentence as a whole.  Taking the two year starting point
and uplifting by six months for Mr Reedy’s previous drug offending, then deducting

20	See Bruce Robertson Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers) at
[SA9.15(2A)]; Hall’s Sentencing (online looseleaf ed, LexisNexis) at [I.6.12(e)].
21	R v Weston [2014] NZHC 3260.

20 per cent for his guilty pleas, results in a sentence of 24 months and adding on the month for the male assaults female charge results in a sentence of 25 months, as compared with the sentence imposed of 27 months.

[27]     I cannot say that a sentence of two years and three months is out of range, especially as the starting point adopted was at the very bottom end of the Terewi sentencing band.   Therefore, while I accept that the uplift was too high, having regard to comparable cases and the gap since the appellant’s last offending, I am not satisfied that a different sentence should be imposed.  Overall, a change from two years three months to two years one month would amount to tinkering with the sentence imposed in the District Court when that sentence is within range, and I do not consider that is warranted.

[28]     Accordingly, the appeal is dismissed.

Solicitors:
S G Bailey, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch