IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA163/2019
 [2020] NZCA 130

	
BETWEEN	
STEVEN RICHARD PAUL WHITEFORD
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
27 February 2020	

Court:	
Miller, Dobson and Moore JJ	

Counsel:	
N P Chisnall and S A Mandeno for Appellant
M R Davie for Respondent	

Judgment:	
30 April 2020 at 10.00am	

JUDGMENT OF THE COURT

A		Application for leave to adduce further evidence on appeal is granted.
B		The appeal is allowed.
C	The sentence of five years and two months’ imprisonment is quashed and substituted with a sentence four years and five months’ imprisonment.
____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)
Introduction
[1]	Mr Whiteford appeals his sentence of five years and two months’ imprisonment imposed in respect of 34 charges including methamphetamine dealing offences.  The total amount of methamphetamine found in his possession was around 53 grams.  
[2]	He was sentenced prior to this Court releasing its guideline judgment in Zhang v R.  Mr Chisnall, for Mr Whiteford, accepts that the starting point could not be challenged under the former sentencing regime, but asserts that the application of the new guidelines produces a different result, both in terms of the starting point and mitigating personal factors. 
[3]	Zhang only applies to sentence appeals filed before the judgment was delivered, where the application of the judgment would result in a more favourable outcome to the appellant.
[4]	The notice of appeal was filed on 12 April 2019, which is some six months before Zhang was delivered.  Both parties proceeded on the basis that Zhang applies.
Approach to appeal
[5]	Consistent with the approach adopted in other recently decided appeals, the examination of the sentence passed below does not focus on a search for error but rather involves an assessment of the appropriate outcome when considered against the new guidelines.
The facts
[6]	The offending in question covered a five month period during the latter half of 2017.  It is most conveniently viewed in four parts.  
[7]	On 16 July 2017, Mr Whiteford was seen by a passing Police patrol.  He was seated in a car parked in Otara, Auckland.  He was arrested on an active warrant and taken back to the Police station where he was searched.  In his clothing was located a small bag which contained 20 cannabis tinnies, a larger tinfoil package containing cannabis, $352 in cash, electric scales and a glass methamphetamine pipe.  He was charged with possession of cannabis for supply and possession of utensils.  At his later jury trial on these charges he claimed he was a drug user rather than dealer.  On 14 June 2018, the jury returned verdicts of guilty.
[8]	The second set of offending took place between 22 July 2017 and 5 September 2017 when Mr Whiteford sent numerous text messages to others offering to supply them methamphetamine and GBL.  
[9]	The third set of offending took place on 8 September 2017 when Mr Whiteford was in a car driven by his partner.  They were stopped by the Police for speeding.  On seeing two swords behind the driver’s seat the Police undertook a warrantless search.  As they did, Mr Whiteford attempted to discard a small plastic bag containing methamphetamine.  He was arrested and the search resumed.  Inside the car was found an operational stun gun, four cannisters each containing approximately 50 mL of GBL, a sunglasses case holding 17 self-sealing bags containing a total of approximately 8 grams of methamphetamine, $2,050 in cash, a set of electronic scales and a “tick” list.  At the time Mr Whiteford was on electronically monitored (EM) bail.  
[10]	Finally, on 12 December 2017, the Police executed a search warrant on Mr Whiteford’s parents’ rural property where he was living in a campervan.  They found a loaded .22 calibre pen gun (which was later found to be incapable of firing), a 9 mm handgun with an empty magazine, a plastic bag containing 15 grams of methamphetamine, scales and 13 bags containing a total of 20 grams of methamphetamine.
Procedural history
[11]	On 7 December 2018 Mr Whiteford was given a sentence indication by Judge T V Clark in the Manukau District Court.  She indicated an end sentence of five years and eight months’ imprisonment, reserving the question of further possible discounts in the event of additional personal information being provided.  
[12]	It was this indication which shaped the final sentence imposed on 21 March 2019.
The sentence in the District Court
[13]	In reaching the end sentence of five years and two months’ imprisonment the Judge adopted the following methodology:
(a)	a global starting point of eight years’ imprisonment calculated as follows:
(i)	a five year starting point for the methamphetamine offending, which the Judge placed squarely in band 2 of R v Fatu;
(ii)	a 12 month uplift for the firearm and weapons charges; 
(iii)	an 18 month uplift for the other drug offending;  and
(iv)	a six month uplift on account of previous convictions and that some of the offending occurred while Mr Whiteford was on EM bail;
(b)	a 25 per cent discount for the guilty pleas (reducing the nominal sentence to six years); 
(c)	a further downward adjustment of four months to take into account the fact that Mr Whiteford was serving a recently imposed sentence of 11 months’ imprisonment;  and
(d)	an additional reduction of six months on account of further personal mitigating factors provided to the Judge following the sentence indication.  This was a global discount which reflected Mr Whiteford’s health issues and steps taken towards rehabilitation.  This equated to a discount of approximately six per cent from the starting point. 
Discussion
The starting point
[14]	As previously noted, Mr Chisnall accepted that in terms of the Fatu guidelines a starting point of five years’ imprisonment for the methamphetamine offending could not be challenged.  He took no issue with the uplifts for the firearm and weapons offences.  Nor did he seek to persuade us that the uplift for the other drug offending was not within range.  His submission was that the application of Zhang, justified a lower, albeit modest, reduction in the starting point.  
[15]	He submitted that the possession of 53 grams of methamphetamine was squarely caught by band 2 of Zhang, that is two to nine years’ imprisonment.  However, in assessing culpability it was Mr Whiteford’s role which Mr Chisnall focused on.  He submitted that as a street level supplier of drugs, Mr Whiteford sat on the continuum between “lesser” and “significant”.  He said Mr Whiteford fitted the classification of “significant” in that he had an operational function but it was uncontroversial, he submitted, that Mr Whiteford supplied the drugs to feed his own habit thus blunting any financial gain.  He submitted that on this analysis, the appropriate starting point on the methamphetamine charges was four to four‑and‑a‑half years’ imprisonment.
[16]	In support of this submission Mr Chisnall attempted to draw factual parallels between Mr Whiteford’s offending and that of Ms Phillips whose appeal was one of those heard in Zhang.  However, Phillips is a factually very different case.  While Ms Phillips was a low level dealer feeding her own addiction, the focus of her culpability lay in twice accompanying her partner when he delivered large quantities of methamphetamine.  The five year starting point reflected her minimal involvement and lack of personal commercial gain. 
[17]	Given that the quantity of 53 grams places the offending in the two to nine year range of band 2, the real focus must be on where Mr Whiteford fits within those bands having regard to his role.  
[18]	Adopting the indicia tabulated in Zhang we are satisfied that Mr Whiteford’s role fits more towards the “significant” end of the spectrum than the “lesser”.  
(a)	First, he performed an operational function.  He was an independent drug dealer with his own customer base.  He was in control of who he supplied and when he supplied them.  Additionally, Mr Whiteford’s possession of various weapons, including a handgun, must be relevant to the assessment of his role and his knowledge of the potential threats and he and his operation were exposed to by other market competitors or those who might wish to steal his product.
(b)	Secondly, while the actual commercial profit is difficult to accurately assess, Mr Whiteford received stolen property and money in payment for the drugs he supplied.  The search of his car on 8 September 2017 revealed cash totalling $2,050.
(c)	Thirdly, Mr Whiteford’s motivation was financial reward. This is not a case where he was motivated solely or primarily by addiction.  In fact, the author of the PAC report observed that Mr Whiteford’s self-report suggested the thrills associated with the “movie” aspects of his drug use were a far greater influence and motivating factor.  Addiction is an indication of role, not a qualifying factor.  It is only relevant to the determination of role insofar as it is characteristic of lesser offenders to be involved in offending in order to feed a habit.  
(d)	Finally, given the nature of Mr Whiteford’s operation, he must have had some awareness and understanding of those further up the supply chain.
[19]	There are relatively few, if any, features of Mr Whiteford’s offending which would place him in a lesser role. 
[20]	In our view the combination of quantity and role places the offending within the lower to middle range of band 2.  For these reasons the five-year starting point adopted by the Judge in reliance on Fatu remains appropriate and justifiable under Zhang.  
Personal mitigating factors
[21]	Mr Chisnall submitted that the Judge relegated Mr Whiteford’s personal circumstances to the point where they received too little recognition.  He submitted that in the light of Zhang, a discount in the vicinity of 15 per cent is justified.  He also submitted that Mr Whiteford’s chronic colitis deserved a further discount well above the six-month reduction given.  
[22]	We shall consider each of these factors in turn.
[23]	First is the question of addiction.  There is no dispute that during the period of his offending Mr Whiteford was addicted to methamphetamine.  He self-reported using up to five grams per day.  The Judge gave no discount for Mr Whiteford’s methamphetamine addiction.  
[24]	How addiction may operate as a personal mitigating factor in the stage two analysis was discussed in some detail in Zhang.  A discount for addiction is rationalised on three bases; first it may impair the rational choice to offend; secondly it reduces the deterrent aspect of sentencing and thirdly, it may render disproportionately severe a sentence of imprisonment.  It may warrant a discount of up to 30 per cent or even higher.  Nevertheless, it was accepted that non-causative addiction is of little mitigatory relevance.
[25]	Any discount for addiction is to be based on persuasive evidence as opposed to self-reporting.  The onus of proof lies on the offender to establish the extent and effect of addiction to the civil standard.  
[26]	Mr Chisnall submitted that this requirement is met.  Mr Whiteford has been provided with rehabilitative interventions by the Department of Corrections which reflects its acceptance that he is an addict.  He completed a rehabilitative programme in prison before he was sentenced and has since been moved to the Drug Treatment Unit (“the DTU”) at Hawke’s Bay Prison.  A report was prepared by Dr Goodwin, a consultant psychiatrist, in which he observed that Mr Whiteford’s risk of re‑offending “is likely to be significantly mitigated by him being abstinent from methamphetamine and alcohol”.  However, in our view, Dr Goodwin’s report is of limited use in the present exercise.  Its focus is prospective in that it addresses Mr Whiteford’s forward prognosis in the event the present interventions prove successful.  It does not address the question of the underlying drivers and causes of Mr Whiteford’s past offending.  
[27]	More importantly, in our view, is the nature of the offending itself.  As already discussed, this was a commercial operation motivated by profit, rather than addiction.   It is not a case in which deterrence can be discounted because treatment will address the risk of reoffending.  
[28]	Nor can it be said that Mr Whiteford’s prospects of rehabilitation following treatment for addiction are strong.  We have referred to his self-reported explanation that a desire for thrills motivated his offending.  Consistent with that, the PAC report reported that Mr Whiteford’s father had a pessimistic view of his son’s prospects of rehabilitation, meaning that family support was conditional.  We acknowledge that these comments need to be viewed in the light of a later letter from Mr Whiteford senior which challenged this assessment and stated that his relationship with his son had strengthened and the family was supportive.
[29]	For these reasons we are satisfied that in terms of Zhang no separate personal discount should be applied on account of Mr Whiteford’s addiction.
[30]	This leaves the question of Mr Whiteford’s health and his claim that his recurrent colitis means that imprisonment carries a risk of being disproportionately severe.  Mr Whiteford has been diagnosed as suffering from mild ulcerative colitis.  He has filed an affidavit explaining his condition and its treatment in prison.  His colitis manifests itself in intermittent episodes of diarrhoea and rectal bleeding.  The condition can be aggravated by stress leading to complications which could require the removal of his entire colon.  Although the particular condition is characterised by periods of remission, the relapses are painful and debilitating.  The administration of the medication is both oral and rectal.  It is required three times a day.  Mr Whiteford reports that since he has been in prison his colitis has worsened significantly.  This he attributes to not only the stress of prison life but also to the confinement of his accommodation.  The conditions are so restricted that Mr Whiteford finds it extremely difficult to administer the rectal treatment.  That process is also intensely private, which prison conditions make difficult, particularly in a shared cell setting which until recently has been the case.  This has led Mr Whiteford to medicate less frequently and, as a consequence, his condition has further deteriorated.  
[31]	He claims that access to medical attention is both sporadic and delayed.  He is presently 18 months overdue for a colonoscopy.  He reports that his current arrangements at Hawke’s Bay Prison have improved because he is in a single cell in the DTU.  There his colitis is more stable.  But the prospect of returning to a shared cell is inevitable and with it he expects his colitis to flare up again.  
[32]	Mr Davie, for the Crown, opposes admission of Mr Whiteford’s affidavit.  Relying on Zhang where the Court declined to admit evidence from Ms Phillips concerning the effect PTSD had on the severity of her imprisonment, he submitted that Mr Whiteford’s concerns are properly matters for the prison authorities and the Parole Board but not this Court.
[33]	For reasons which follow we are satisfied that in the present case the matters raised by Mr Whiteford in his affidavit are relevant to the disposal of this appeal.  We admit the evidence.  
[34]	Mr Davie submitted that, in any event, the affidavit does not assist; it simply confirms the Judge’s finding that Mr Whiteford’s colitis is capable of being managed by the prison authorities.  He submitted that the medical evidence was before the Judge who took it into account and properly dismissed it as a factor which should be taken into account as a personal mitigating factor.
[35]	We do not agree.  No evidence has been filed to contradict Mr Whiteford’s account.  We propose to approach the evidence on the basis Mr Davie suggested in the event we admitted it; that is to exercise our own judgement as to weight and credibility.
[36]	Section 8(h) of the Sentencing Act 2002 requires a Judge to take into account “any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe”.  
[37]	As this Court observed in R v Luce the provision preserves the longstanding principle of mercy.  It must be cautiously applied to ensure ill health is not a licence to avoid responsibility for offending.  A relevant question is whether the ill health is able to be managed within the prison to ensure the sentence is not manifestly unjust.  
[38]	The extent to which ill health may be treated as a mitigating factor will vary depending on the particular circumstances.  This Court in Hastie v R noted that discounts for ill health ranged depending on severity.
[39]	We are satisfied that Mr Whiteford’s medical condition and its treatment warrants a discrete discount for the following reasons:
(a)	First, the fact of confinement in prison has exacerbated the condition.  Various stressors directly associated with imprisonment have led to the recurrence of more severe symptoms.
(b)	Secondly, Mr Whiteford’s regime of self-medication has caused both personal embarrassment and practical challenges.  As a consequence he is not medicating himself as frequently as recommended leading to increased symptomology.
(c)	Thirdly, we accept Mr Whiteford’s account that there have been delays in both accessing internal medical attention as well as securing appointments with external medical specialists.  
[40]	In these circumstances Mr Whiteford’s presentation is quite unlike most prisoners who may suffer chronic medical or psychological conditions.  We are satisfied that in Mr Whiteford’s case imprisonment has a disproportionately severe effect.  And for that reason we are satisfied a discrete discount should now be applied.  This discount will be calculated as 10 per cent of the starting point plus uplifts, before the guilty plea discount and other discounts are applied. This translates to a reduction of approximately nine-and-a-half months from the starting point leading to a final end sentence of four years and five months.  
[41]	Finally, we are not persuaded that a separate discount should have been applied on account of other personal factors including remorse and the detrimental effect that incarceration would have on Mr Whiteford’s family.  The Judge pointed out that the reality was that Mr Whiteford had been alienated from his family for some time before sentencing and a term of imprisonment would not change this.  She did, however, give limited credit for what she described as the insight which Mr Whiteford was now showing.  
[42]	In any event, it would appear that Mr Whiteford’s family, particularly his two children are coping well in the care of their grandparents.  Furthermore, the additional information received from Mr Whiteford senior suggests that the family bonds may be improving.  
Result
[43]	The appeal is allowed.  The sentence of five years and two months’ imprisonment is quashed and substituted with a sentence four years and five months’ imprisonment.

Solicitor:  
Crown Law Office, Wellington for Respondent