IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CRI-2019-409-000030
[2019] NZHC 1025	

BETWEEN	NICHOLAS MURRAY VERTUE
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	8 May 2019	
Appearances:	A N Riches for Appellant
J H Whitcombe for Respondent	
Judgment:	10 May 2019	

JUDGMENT OF GENDALL J

Introduction

[1]	The appellant, Mr Vertue, pleaded guilty in the District Court to two charges of possessing utensils for the purposes of using methamphetamine and one charge of possession of a Class A drug (methamphetamine). On 24 January 2019, Judge Phillips sentenced the appellant to 180 hours community work. The appellant appeals this sentence.

Facts

[2]	On 19 September 2018, a search warrant was executed at the appellant's warehouse. Six glass pipes for consuming methamphetamine were located along with some "sniffing tools" for consuming drugs.

VERTUE v NEW ZEALAND POLICE [2019] NZHC 1025 [10 May 2019]

[3]	Whilst he was on bail for the September 2018 charge, on Friday 9 November 2018, the appellant travelled by air from Christchurch to Auckland. Half a gram of methamphetamine, 5 millilitres of diluted methamphetamine, syringes and a glass pipe were located in his luggage. The appellant was charged and held in custody from that Friday evening to the next Monday morning.

District Court decision

[4]	In his decision in the District Court, Judge Phillips outlined the history of the appellant’s offending, his background and noted his business role in the community where he employed a number of people. In particular, his Honour recorded what I have indicated above that the appellant had been on bail for the September charge at the time he was stopped at Christchurch airport for the November Charge. Judge Phillips said in his decision he considered the appellant was addicted to methamphetamine, and that he was “intelligent enough and solid enough to ‘walk away’ from it; to get treatment and assistance but it can only happen when [the appellant] accepts the problem.” The Judge then went on to say “You continue to deny it. Quite clearly, you wish to continue to use the drug. Well, you do so at your own risk really.”

[5]	In his sentencing, his Honour then held that a fine was inappropriate here. He noted that although no aggravating or mitigating features were identified, as a businessman there was a need to deter and hold the appellant out as an example.

[6]	On the September charge of possessing utensils, the Judge imposed a sentence of 50 hours community work. On the possession of utensils charge relating to a further pipe and syringes, 80 hours community work was imposed cumulatively. A further cumulative sentence of 50 hours community work was imposed on the charge of possession of methamphetamine. The end sentence imposed was therefore one of 180 hours’ community work.

Principles on appeal

[7]	Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An

appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “…court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3

Submissions

Appellant’s submissions

[8]	Mr Riches for the appellant submits that the sentence imposed was manifestly excessive. He appeals on the basis of what he says is the failure of the Judge to have regard to:

(a)	the appellant having spent three nights in custody;

(b)	the character references and community work undertaken by the appellant;

(c)	his negative drug tests results; and

(d)	the appropriateness of a fine here.

[9]	The appellant maintains further that Judge Phillips:

(a)	Treated the appellant's denial of a drug addiction as an aggravating feature;

(b)	Assumed that the appellant was addicted to drugs; and

1	Criminal Procedure Act 2011, ss 250(2) and 250(3).
2	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
3	Ripia v R [2011] NZCA 101 at [15].

(c)	Did not have regard to the totality principle,

[10]	The appellant contends the Judge erred in finding the appellant was addicted to methamphetamine. Counsel says that while it is accepted the appellant was found in possession of a methamphetamine pipe in his warehouse office and subsequently attempted to transport a quantity of this drug through Christchurch Airport, this in itself does not justify an inference of an addiction.

[11]	According to the appellant, no evidence was before the Court of his pattern of use of the drug, his response to the Police upon being arrested, let alone his alleged addiction or otherwise. The appellant did accept at sentencing through his counsel he was a recreational user of methamphetamine. However, he denies addiction. He maintains also there was no other evidence before the District Court to draw this inference.

[12]	As a result, the appellant suggests:

(a)	The District Court was not entitled to draw the inference of addiction.

(b)	Even if such an inference could be made, or was seen as an accepted fact, this is not an aggravating factor here.

[13]	Before me, Mr Riches for the appellant pointed to cases which show that it is trite law that maintaining innocence cannot be viewed as an aggravating factor.4 In the present case, of course the appellant was not asserting any element of innocence, but merely identifying that he did not consider himself to be an addict. And, in passing, Mr Riches argued that he was not aware of any authority in which a defendant was required to admit an addiction and in the absence of doing so the sentence was to be increased.

[14]	Counsel points further to the alleged failure by Judge Phillips here to allow credit for the time the appellant spent in custody. Mr Riches referred to R v Faisander and R v Tamou as cases where the Court of Appeal considered it appropriate to make

4	R v Miers (1994) 11 CRNZ 307 (CA) at 11; R v Tumai CA 403/89, 29 June 1990 at 6.

an evaluative assessment when considering how time spent in custody should effect a final sentence.5

[15]	In the present case, I accept that Judge Phillips in his decision did not appear to give any consideration to the time the appellant had spent in custody. The appellant suggests this is an error justifying consideration of the end sentence imposed.

[16]	The appellant also maintains that the totality of his offending here was out of proportion with the sentence imposed. On this aspect, he refers to the decision of this Court in Wilson v Police and Department of Corrections.6 There a sentence of 90 hours of community work for possession of methamphetamine and utensils was not disturbed on appeal. And he notes also another decision in this Court in R v Mason. There, Mr Mason was convicted of possession of three grams of a Class A drug as well as possession of MDMA and utensils, and he was sentenced to a $700 fine.7

[17]	With this in mind the appellant says that in this case a fine is the appropriate sentence. The fact that the appellant is an employer of a number of people and runs a business is, he maintains, all the more reason to allow him to pay a fine and continue to work.

Respondent’s submissions

[18]	In response, the police note the Judge’s discussion of the appellant's use of drugs in his sentencing notes, and the conclusion he reached that the appellant was addicted to methamphetamine. This conclusion was based on the facts of the offending before the Court. The respondent submits that this conclusion was open to the Judge given the number of utensils located and the amount of methamphetamine found. Nonetheless, the presence of an addiction is accepted as not being an aggravating feature. His Honour, however, in his sentencing notes, did not appear to treat the appellant's denial of an addiction as an aggravating feature.

5	R v Faisander CA185/00, 12 October 2000; R v Tamou [2008] NZCA 88.
6	Wilson v Police and Department of Corrections [2014] NZHC 2128.
7	R v Mason [2016] NZHC 1418.

[19]	As to sentencing here, Mr Whitcombe notes the maximum penalty for possession of drug utensils is 12 months imprisonment. The maximum penalty for possession of a Class A drug is six months imprisonment.

[20]	In Heke v Police the appellant faced a number of drug related charges as well as a charge of obstructing a police officer.8 Possession of utensils for methamphetamine consumption was taken as the lead charge. A sentence of 200 hours community work and nine months’ supervision was imposed. In that case on appeal from the District Court decision, the sentence was held to be in the appropriate range and to properly reflect the totality of the offending.

[21]	The respondent submits that community work was the appropriate sentencing option in this case. There were a significant number of utensils found. Further, the second set of offences were committed whilst the appellant was on bail for the first offending. In those circumstances, the respondent submits that the Judge was right to find that a fine was inappropriate.

[22]	In terms of credit for pre-sentence detention, Judge Phillips did not specifically address the issue of a discount for the time the appellant had spent in custody following his arrest. Nor did the Judge specifically refer to a discount that was available for guilty pleas.

[23]	The respondent submits that these considerations were reflected, however, in the end sentence that was imposed and no further alteration is required. Although the end sentence might be considered “stern” the respondent submitted nevertheless that it falls within the range available to the Court and was not unreasonable or excessive in all the circumstances prevailing here.

Analysis

[24]	On this appeal, the appellant placed significant weight on Judge Phillips’ alleged “error” as to his addiction. I am not convinced, however, that such, even if it was an error, is of much moment in this case. It seems to me that Judge Phillips in his

8	Heke v Police [2015] NZHC 635.

comments in this area was essentially stressing the fact that the appellant’s drug offending was of an ongoing nature. The appellant had re-offended while on bail. That suggests a wilful disregard for orders of the Court, which might be more understandable perhaps in the context of addiction. The Judge, in my view, could, in any event, be said to be trying to encourage the appellant to take accountability for his drug problems and to seek help with them.

[25]	I make no finding as to whether the appellant has an addiction or not. Although, had the appellant accepted he had a drug problem and was taking steps to work on them, that might have been something the Judge could have taken into account.

[26]	Generally, on this aspect, however, the appellant is right in saying that addiction is not an aggravating factor. However, it does not seem that the trial Judge did refer to it as being such. I am of the view, therefore, that this addiction question should not alter the final sentence imposed in any real way.

[27]	In terms of the three nights spent in custody, the Judge did not specifically address this in his sentencing notes. Ultimately, those three days should be evaluated in the wider exercise of considering the appropriate sentence. I have no evidence before me of whether the Judge allowed a discount for this and for totality. Having said that, on the other hand, the Judge did not seem to mention or impose any uplift for offending while on bail either. That was a matter that certainly could have resulted in an appropriate uplift.

[28]	The authorities recognise that the overall focus on an appeal such as this must be on the correctness of the end result and not involve a minute examination of the process by which the sentence was reached. I remind myself that it is only appropriate for an appellate court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by relevant sentencing principles.9

[29]	The community work sentence imposed by Judge Phillips here was an appropriate sentencing option in all the circumstances of this case.   There were a

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

significant number of utensils and a not insignificant quantity of methamphetamine found. Further, the second set of offences were committed whilst the appellant was on bail for the first offending and relatively soon after it. In those circumstances, Judge Phillips did not err here in determining that a fine was inappropriate.

[30]	And, looking at the sentence on the whole, as counsel for the respondent acknowledged, the 180 hours of community work imposed could be regarded as reasonably stern, but I am not convinced that it is manifestly excessive. I am satisfied it is within an acceptable range and that it reflects in a proper way the totality of the appellant’s total offending in this case.

Conclusion

[31]	For all the reasons I have outlined above, I am of the view that no appealable error on the part of Judge Phillips occurred here in the sentence he imposed.

[32]	This appeal is dismissed.

[33]	The appellant is directed  to  attend  community  probation  service  within  48 hours of receipt of this judgment.

...................................................
Gendall J

Solicitors:
Saunders & Co, Christchurch
Raymond Donnelly & Co, Christchurch