Criminal procedure – successful appeal against sentence – possession and supply of cannabis, ecstasy and LSD – sentence of three years and eight months’ imprisonment quashed – substituted with sentence of two years and eight months’ imprisonment – starting point – discounts – totality
Jacobson v R  NZHC 1358 per Campbell J
Sharma Saili Jacobson was sentenced to three years and eight months’ imprisonment on 17 charges related to possessing and supplying cannabis, ecstasy and LSD, possessing firearms and ammunition, and failing to meet computer search obligations.
Jacobson appealed his sentence on the basis the District Court’s overall starting point of nine years was too high, having failed to take totality into account and the 25% discount, which reflected his relative youth, lack of prior convictions, previous good character and high prospects of rehabilitation, was inadequate.
The High Court found the District Court erred by considering totality only after it had reduced the overall starting point to allow for Jacobson’s guilty plea, personal circumstances and time on electronic monitored (EM) bail. The High Court said totality should be considered before personal mitigating (or aggravating) factors were taken into account. The District Court should have asked whether its overall starting point of nine years’ imprisonment reflected the gravity of the overall offending.
Pursuant to s 85(2) of the Sentencing Act 2002, the overall starting point should not be wholly out of proportion to the gravity of the overall offending. Adjustments to the overall starting point reflect factors personal to the offender and if totality is considered after allowances have been made for personal factors, there is a risk is the totality assessment is influenced by factors irrelevant to the gravity of the offending.
The High Court found the overall starting point was wholly out of proportion to the gravity of the overall offending. The standalone starting points for each set of drugs charges (LSD, three years; ecstasy, two years, six months; cannabis, three years; total of eight years, six months) were in range. However, adjustment for totality to the standalone starting points was required.
The High Court considered an appropriate overall starting point for the drug offending was five years, six months’ imprisonment (LSD, three years, making totality adjustments; ecstasy, uplift of 12 months; cannabis, uplift of 18 months).
An uplift for the firearms offending was also required. The High Court did not disturb the modest uplift of six months applied by the District Court. The firearms and ammunition were in a storage locker away from where Jacobson lived and dealt drugs. This led to an overall starting point of six years’ imprisonment.
The High Court found no error in the 25% discount.. Any allowance for Jacobson’s youth (aged 23 at the time of offending) and early introduction to drugs (at best, minor contributing factor; offending not caused by addiction) would be very modest. However, substantial allowances for Jacobson’s previous good character, remorse and prospects for rehabilitation were proper.
Further, the District Court’s allowance of 15 months for time spent on EM bail was excessively generous. Even with relatively restrictive conditions and perfect compliance, it is unusual for the credit to exceed much more than half of the time spent on EM bail. An allowance of seven and a half months was appropriate.
With an overall starting point of six years’ imprisonment and allowances of 20% for a guilty plea, 25% for other mitigating factors and seven and a half months for time spent on EM bail, an end sentence of two years and eight months’ imprisonment was reached. Accordingly, the sentence of three years and eight months’ imprisonment was manifestly excessive.
Held: Appeal allowed. Sentence of three years and eight months’ imprisonment quashed and substituted with a sentence of two years and eight months’ imprisonment.
Hannah Hellyer is an Auckland criminal defence barrister and a member of the ADLS Criminal Law committee and Parole Law committee.