Adams v Police HC Wanganui CRI 2010-483-35

[2010] NZHC 933

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-483-000035

BETWEEN  RICHARD MATTHEW ADAMS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         4 June 2010

Counsel:         M J Bullock for Appellant

J M Woodcock for Respondent

Judgment:      4 June 2010

ORAL JUDGMENT OF GENDALL J

[1]      The appellant pleaded guilty in the Wanganui District Court on 20 April 2010 to a charge of cultivating cannabis.  He was sentenced to 16 months’ imprisonment and appeals against this sentence on the basis that counsel submits he should have been sentenced to home detention.

[2]      The facts upon which the charge was based was that on 17 March 2010 a search  of  the  home  occupied  by  the  appellant  on  State  Highway  3,  Wanganui revealed a significant number of cannabis plants, growing in three locations within the home and adjacent garage.  The cultivation exercise was sophisticated in that it was internal, with lights, fans, timing equipment and a large amount of fertiliser available.  A total of 52 cannabis plants were found to be growing.  These included cuttings which were being prepared for ongoing cultivation.

[3]      A small amount of dried cannabis was located in the hot water cupboard in an adjacent shed and the police that approximately 5.2 kilograms or approximately 11

ADAMS V NEW ZEALAND POLICE HC WANG CRI-2010-483-000035  4 June 2010

pounds of cannabis head might have been able to be harvested with a street value of many thousands of dollars.  The appellant said that all the cannabis was being grown and cultivated for his own personal use, as he had health issues arising out of on- going pain in his hands, which had been damaged in a work place accident some years ago.

[4]      In sentencing the appellant District Court Judge M R Radford took the view that there were commercial features to the cannabis growing operation, despite the appellant himself being a heavy user of cannabis.  The Judge accepted the starting point  was  at  the  lower  end  of  Category 2  as  discussed  in  R  v  Terewi[1]   noting, however, there was a significant amount of funds expended in setting up a relatively sophisticated operation.  The Judge took a starting point of two years’ imprisonment and allowed eight months for the guilty plea and then turned his mind to the question of home detention.   He discussed the authorities that counsel had referred to him, namely R v Iosefa[2] and R v Hill[3] and Judge Radford concluded that the purpose and principles of the Sentencing Act, namely denunciation of the appellant’s conduct and general deterrence of others who offend in like ways, could not be met if a sentence of home detention was imposed.  The Judge said at [17]-[18]:

[1] R v Terewi [1999] 3 NZLR 62 (CA).

[2] R v Iosefa [2008] NZCA 453.

[3] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

Your conduct has to be denounced.  It seems to me that if I were to simply send you off to your home detention I would be saying, by way of denunciation, that this is a man who has conducted a commercial, profit making cannabis operation from his home and here I am sending him back to a home.

In terms of deterrence, in my view, those who involve themselves in the drug trade would have regard to whether or not the likely penalties are imprisonment or not and again I ask the question, could it be said that somebody who is likely to cultivate cannabis from his home is likely to be deterred if they think that the outcome will simply be, “I will be sent home and asked to serve a sentence of home detention?”

Discussion

[5]      On behalf of the appellant, Mr Bullock accepted that notwithstanding his client’s assertion that all the cannabis was grown for his own use the number of

plants and the type of operation suggested otherwise, and there was some small degree of commercialisation.  He accepted that in terms of R v Terewi the offending fell between the top of Category 1 and the bottom of Category 2 and there is no serious argument that a starting point of two years with a credit for an early guilty plea of eight months, was appropriate as adopted by the sentencing Judge.   The thrust of Mr Bullock’s argument is that the sentence was wrong in principle within the hierarchy adopted now by the Sentencing Act and home detention should have been imposed.

[6]      A sentence of home detention is no longer a “soft option”.   Mr Bullock emphasised that the proposed accommodation for home detention was an address away from where the offending occurred and that the appellant was undertaking, or had signed up to undertake, a rehabilitation programme to deal with his cannabis use and his addiction.

[7]      Over the past ten years the appellant has four previous convictions for driving with excess breath alcohol, possession of utensils, burglary and unlawfully in a yard. But his conviction history does not suggest significant criminal activity that might give the Court special concern if home detention was imposed.

[8]      It is now a factor that home detention is a stand alone sentence.  The Crown has submitted that the appeal is against the exercise of a discretion to decline home detention  and  therefore  this  Court  should  exercise  considerable  care  before interfering with the exercise of that discretion.  I think the position now is, the Court will  only  interfere  with  a  sentence  on  appeal  if  it  is  manifestly  excessive,  or otherwise clearly inappropriate in all the circumstances.

[9]      Reference has been made to the Court of Appeal decision in R v Stoves[4] where that Court said that it must be shown that the discretion to not impose home detention was exercised on a wrong principle or was plainly wrong and therefore by inference, considerable deference must be given to the sentencing Judge.  But as I have earlier observed, R v Stoves was a case relating to an appeal concerning the previous legislation which related not to the imposition of a stand alone sentence of

home detention, but whether the sentencing Judge was wrong to decline to grant leave to later apply for home detention.  Of course, the referral or grant of leave was a discretionary decision, but a sentence of home detention or any other stand alone sentence does not necessarily fall within the ambit of a Judge exercising a discretion. It is a Judge reaching a conclusion based upon all the material that is before him or her.

[4] R v Stoves CA264/06, 7 November 2006.

[10]   Further, the Crown has submitted that the Court of Appeal in R v D(CA253/2008)[5]   endorsed  the  approach  that  rarely  would  an  appellate  Court interfere with the exercise of a sentencing Court’s discretion, in the area of granting or  refusing  home  detention.    Counsel  has  referred  to  the  dicta  of  Heath  J  in delivering the Court’s judgment at [66] where his Honour said:

the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending.  The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other.  In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.  He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.  The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

[5] R v D(CA253/2008) [2008] NZCA 254.

[11]     Those comments, however, must be seen in the context of the case to which they apply.   In R v D(CA253/2008) the Court of Appeal was concerned with a Solicitor-General’s  appeal  against  sentence,  which  was  said  to  be  excessively lenient.  It had been imposed in the District Court after the accused had been found guilty by a jury on a charge of wounding with intent to injure.  The Court of Appeal had to consider whether a sentence of 12 months’ intensive supervision was manifestly inadequate and it found that it was.   So it quashed that sentence and imposed a sentence of community work, together with other conditions.  The Court of Appeal had to deal with the hierarchy of sentences as provided in the Sentencing

Amendment Act 2007, and, as it said it was “sentencing afresh”,[6] because it did not

[6] At [67].

have the benefit of the sentencing Judge’s views on whether home detention was an adequate sentencing response.   So the comments of the Court there were entirely

appropriate, but ought not be taken out of context to support the view that this Court should not intervene in considering whether a sentencing Judge erred in the imposition of a stand alone sentence at first instance.

[12]     The Crown has also referred to another Court of Appeal decision (on which I was a member of the Court so I am familiar with it) namely R v Taiepa[7]  where the Court of Appeal declined to interfere with the sentencing Judge’s decision not to impose home detention.  That was because, amongst other reasons, the Court felt it was in “no position to second-guess the sentencing Judge who was in  the best position to determine on which side of the line this offending fell”.[8]    But that was a case where the appellant’s offending was so serious that the point had been reached where the question of imposition of a community-based sentence rather than imprisonment was totally unrealistic.  It was dependent on the particular facts of that case and is far removed from the type of case I am considering today.

[7] R v Taiepa [2009] NZCA 120.

[8] At [19].

[13]     Some of those cases related to the exercise of a discretion (which is not the present situation).   Others, where the particular facts of the offending, or the very long list of convictions of the offender, were such that it was patently obvious that home detention was out of the question.  Naturally, this Court will seldom interfere in the sentencing assessment where home detention is a realistic alternative simply because that may be the least restrictive sentence available to meet the purposes and principles of the Sentencing Act.  The Courts will not hesitate to intervene if all the circumstances make it clear that the sentence the subject of the appeal is manifestly excessive or inappropriate or inadequate to meet the ends of justice largely reflected in the provisions of the Sentencing Act.

[14]     As was observed by Venning J in Morgan v The Queen:[9]

[9] Morgan v The Queen HC Hamilton CRI-2008-419-32, 13 June 2008 at [12].

An appellate Court will not interfere with a legitimate exercise of judicial discretion or merely tinker with the sentence.  However judicial reluctance to interfere with a sentence on appeal is less in cases where the original sentence is imposed following pleas of guilty rather than after trial.  In the case of a sentence following trial the sentencing Judge will have had the benefit of seeing and hearing all of the evidence and assessing the offender’s culpability first hand.   In the case of a guilty plea

however the appellate Court will be in as good a position as the sentencing Judge to assess the facts and may be able to do so in a more considered fashion.

[15]     The point is simply this.  Review of a sentencing exercise on appeal is really now not a question of review of the discretion of the sentencing Judge.   Leave to appeal against sentences of home detention no longer exists.  The test now remains, as it always was, whether the sentence imposed was manifestly excessive or inappropriate when viewed against all the circumstances contained.

[16]     Home detention is a real alternative to imprisonment where a short term sentence of imprisonment would otherwise be imposed, and as the Court of Appeal said in R v Hill the stand alone sentence of home detention:[10]

reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment.

[10] At [33].

[17]     There was much to be said in favour of this appellant, including a favourable probation officer’s report and recommendation.   It is said that he now has some insight and has taken steps to address his cannabis dependency, having self-referred himself to an alcohol and drug rehabilitation service.  Of course, the Court is mindful of what the Crown has realistically submitted that that has only arisen because of his apprehension and may be viewed with some scepticism.   Only time will tell the genuineness of that self-referral.  The probation officer assesses him at low risk of re-offending and recommended home detention at an address with some relatives, they having expressed some concern for the appellant.

[18]     There will be many cases where home detention should be declined, despite a short term sentence of imprisonment otherwise available, particularly in drug offending at home, in order to denounce the conduct, to provide personal deterrence to the offender, as well as general deterrence to others.  On the other side of the coin, however, there will be cases where personal circumstances of an individual and the gravity of the crime – that latter aspect being reflected in the fact that a short term sentence of imprisonment would otherwise follow – will require a sentence of home detention.  But a broad and overall assessment of all the circumstances of the offence

and the offending is necessary.   No one factor may predominate and it is an assessment of all factors in a balancing exercise that is required once the jurisdiction to impose home detention arises.  There will be cases where the past criminal history and risk of re-offending, scant prospects of rehabilitation, or special and general deterrence outweigh other factors in favour of a sentence of home detention.  It has been said (for example, in R v Paki) that home detention is unlikely to be granted

where a person  is convicted of drug dealing from his or her home.[11]    But the

appellant was convicted of cultivation, not dealing, and I think that this concern has limited weight in the present case because if there is to be home detention it will be served  in  another  home,  with  other  adults,  including  family  members  there  to provide support to the appellant.

[11] R v Paki CA165/05, 5 September 2005.

[19]     I think there are positive features in relation to this appellant, including his realisation of the consequences of his conduct and his expressed desire to change, through rehabilitative programmes.  When viewed overall, I think his situation falls into the category of  a  case  where the Court should be prepared  to sentence to home detention  so  as  to  achieve  the  social  benefits  (that  is,  the  cessation  of offending) and the individual benefits (that is, his rehabilitation) that such a sentence is likely to offer.  Such a sentence is not to be seen as a soft option.  Nor is it to be seen as something invariably available to those who cultivate cannabis at this level. And if those in the public arena who are presently offending or thinking of offending think that home detention will be an invariable outcome, then they do so at their peril.  The imposition of home detention in this case is simply the least restrictive sentence that is proper in all the circumstances.

[20]     Although  Mr  Bullock  has  referred  to  what  he  said  was  inconsistency in sentencing for this type of offending in the District Court, I think it needs to be made clear as I have endeavoured to do so, that simply because a person is charged with cultivation of cannabis, and would otherwise receive a short term sentence of imprisonment, it does not follow, that without more, a sentence of home detention would  or  should  be  imposed.     It  may  or  may  not  be  and  there  are  many circumstances which dictate that the proper sentence was a full-time custodial one and not home detention.  It is not inconsistent that different sentences are imposed

upon different offenders whose background circumstances, past history, family support, prospects of rehabilitation, to give only some examples will all be different.

[21]     But in this case I am satisfied that home detention is the proper sentence that should have been imposed in accordance with the recommendation of the probation officer.    Accordingly,  the  appeal  is  allowed  and  a  sentence  of  home  detention imposed on the following special conditions:

(1)       The  appellant  upon  release  from  prison  is  to  travel  directly  to

15 Gibson  Street,  Wanganui  and  await  the  arrival  of  a  probation officer and security officer;

(2)He is to reside at 15 Gibson Street, Wanganui for the duration of the sentence;

(3)He is not to purchase, possess or consume alcohol or cannabis or other illicit drugs for the duration of the home detention;

(4)He is to attend and complete such counselling programme (including any alcohol and drug assessment programme) to address identified offending behaviour as may be directed by the probation officer and the programme provider;

(5)Upon  completion  of  the  home  detention  the  following  special condition is imposed:

(i)he is to undertake and complete any remaining rehabilitative programme, counselling, treatment and maintenance follow- up as directed by the probation officer.

[22]     It remains only for me to fix the duration of the sentence of home detention. In my view the appropriate term is eight months, that length being fixed especially to ensure that the rehabilitation path envisaged is fully pursued.  However, because the appellant has been in custody now for two weeks since sentenced in the District Court, the length of home detention is reduced by that period.

[23]     Accordingly,  the  appeal  is  allowed;     the  sentence  of  imprisonment  is quashed;  the term of home detention is fixed at seven months two weeks and the conditions of home detention and release conditions are those contained in [21]

above.

J W Gendall J

Solicitors:
M J Bullock, Barrister and Solicitor, P O Box 11, Wanganui for Appellant
Crown Solicitor, Wanganui for Respondent