Addenbrooke v Police

[2016] NZHC 2254

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-15 [2016] NZHC 2254

BETWEEN

JEREMY BLAIR ADDENBROOKE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 September 2016
Appearances:	A Dawson for Appellant R Smith for Respondent
Judgment:	23 September 2016

JUDGMENT OF MANDER J

[1]     The appellant, Mr Jeremy Addenbrooke, was sentenced to 10 months imprisonment on a charge of possession of cannabis for sale.1     He appeals that sentence on the basis it was manifestly excessive.

Background

[2]      A  police  search  of  Mr  Addenbrooke’s  backpack  revealed  he  was  in possession of nine $50 deal bags of cannabis (18 grams), with a combined street value of $450.   He was also carrying $249 in cash.   Mr Addenbrooke admitted ownership of the cannabis and his intention to sell five or six of the deal bags (10-12 grams).

Approach to appeal

[3]      The appeal Court will only disturb a sentence if the appellant can establish there has been an error in the sentence imposed and that a different sentence should

1      Police v Addenbrooke [2016] NZDC 12825.

ADDENBROOKE v NEW ZEALAND POLICE [2016] NZHC 2254 [23 September 2016]

be substituted.2   In the absence of such a finding the Court must dismiss the appeal.3

The requirement that a sentence be manifestly excessive before it will be disturbed on appeal remains part of the approach to be taken to an appeal against sentence, notwithstanding the absence of any express reference to that test in the Criminal Procedure Act 2011.4

[4]      A submission  that  a  sentence  is  manifestly  excessive  (or  inadequate)  is premised on a contention that an error has been made in identifying the starting point, or that incorrect discounts or additions have been made, or some other error affecting  the  ultimate  sentence.5    However,  whether  a  sentence  is  manifestly excessive is to be examined in terms of the sentence actually imposed, rather than the process by which the sentence was reached.6

The sentencing decision

[5]      In approaching the sentencing exercise, Judge Turner referred to the guideline decision of R v Terewi, and observed that Mr Addenbrooke’s offending fell within category  2,  involving  as  it  did  a  small  quantity  of  cannabis  for  commercial purposes.7   The starting point for such offending is generally between two and four years, but a lower starting point can be adopted where sales are infrequent or a small quantity of cannabis is involved.  Judge Turner noted the quantity of cannabis was at the lower end of the scale, involving five to six deal bags with a total value of between $300 and $500.  As a result, the Judge took a starting point of 12 months

imprisonment.

[6]      At  the  time  of  the  offending,  Mr  Addenbrooke  was  subject  to  release conditions following a sentence of imprisonment on two charges, one of which included possession of a Class A drug.  As a result, an uplift of two months was

imposed.    Judge Turner  afforded  a  30  per  cent  discount  for  Mr Addenbrooke’s

2      Criminal Procedure Act 2011, s 247 and 250.

3      Section 250(3).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482

5      Tutakangahau v R, above n 4.

6      Larkin v Ministry of Social Development [2015] NZHC 680 at [26].

7      R v Terewi [1999] 3 NZLR 62 (CA) at [4].

personal circumstances and his early guilty plea.  This resulted in the end sentence of

10 months imprisonment, which the Judge declined to commute to home detention.

The appeal

[7]      Mr Addenbrooke submits the sentence is manifestly excessive.  The alleged identified error is that the 12 month starting point was set too high, which resulted in the length of the term of imprisonment being too long.  No issue is taken with the uplift for aggravating factors, nor the 30 per cent discount for mitigating considerations.

[8]      Mr Addenbrooke’s essential contention is that the Judge erred in that having acknowledged the limited commerciality of his offending, he did not adopt a starting point that was sufficiently modest to accurately reflect the true level of the offending. Mr Addenbrooke submitted that once the amount of cannabis he intended to keep for personal use was taken into account, the commercial value of the balance would be

$250 to $300 at most.   He referred to sentencing decisions of this Court where starting points of six and eight months were indicated as appropriate.8     Mr Addenbrooke submitted a similar six month starting point ought to have been taken by Judge Turner in the circumstances of his case.

Decision

[9]      Mr  Addenbrooke  is  correct  in  his  submission  that  there  are  sentencing decisions where greater quantities and more sophisticated commercial enterprises have attracted starting points equivalent to, or even lower, than the 12 months Judge Turner adopted.9   However, this Court will not intervene where the sentence imposed is   within   a   range   that   can   be   properly   justified   by   accepted   principles. Mr Addenbrooke is required on appeal to demonstrate that Judge Turner made an

error in the sentence he imposed.  In order to do that he would need to demonstrate the starting point which the Judge took of 12 months was not within the available range for this type of offending.   In my view, he is not able to sustain such a

submission.

8      Ngatai v Police [2015] NZHC 2249; Dobbs v Police [2013] NZHC 656.

9      Stott v Police HC Christchurch CRI-2007-409-231, 13 December 2007; Synnott v Police [2013] NZHC 486.

[10]     The Crown is able to point to other authorities which show the starting point of 12 months to be within range in the exercise of the sentencing Judge’s discretion. In McPadden v Police, the appellant was sentenced to 10 months imprisonment on charges of possession of cannabis for supply, possession of cannabis, theft of a licence plate and breaches of bail, release conditions and community work.10    The only challenge on appeal was to the term of nine months imprisonment on the charge of possession of cannabis for supply.

[11]     There is a similarity to the circumstances of Mr Addenbrooke’s offending. The appellant in that case was found in possession of a backpack containing 10 tinnies of cannabis leaf with a total weight of approximately 10 grams.  Also inside the backpack were a pair of scissors, a large roll of tinfoil and $185 in cash.  The appellant had $430 in cash in his wallet.  At the time of his apprehension, he was serving a sentence of community work and on bail in relation to other charges.

[12]     The appeal Court in that case noted the sentencing Judge’s error in believing his sentencing jurisdiction was limited to one of 12 months imprisonment when adopting a starting point of 10 months imprisonment.11   In reassessing the appellant’s offending, Toogood J  held it fell into the lower end  of  Terewi category 2, and considered that the circumstances justified a starting point of 20 months.12     This resulted in Toogood J observing that, on his theoretical recalculated sentence of 17 months imprisonment, the end sentence imposed by the District Court of 10 months might be considered generous.13

[13]     The Crown has referred me to other cases where possession of small amounts of cannabis for the purpose of sale have resulted in starting points similar to that taken by Judge Turner.  In Barker v Police, this Court dismissed an appeal against a sentence of eight months imprisonment imposed primarily in respect of one charge

of  possessing  cannabis  for  the  purpose  of  sale.    The  appellant  was  found  in

10     McPadden v Police HC Hamilton CRI-2011-419-38, 17 June 2011.

11 At [13].

12 At [14].

13 At [17].

possession of six cannabis tinnies with a total weight of three grams.  Miller J held the starting point of 12 months imprisonment was not unusual.14

[14]     R v Rihari is another example of a starting point of 12 months imprisonment being taken in respect of six cannabis tinnies and sales of $400 to $500 worth of cannabis.15   Similarly, in R v Pulham, where the appellant sold three cannabis tinnies to an undercover police officer and shared two tinnies with friends, a starting point of 12 months imprisonment was not disturbed.16

[15]     Counsel for Mr Addenbrooke submitted that the authorities he relied upon were of a more recent vintage to those the Crown had referred.  He suggested this may indicate some softening in the approach taken by the Courts to sentencing for dealing  in  small  amounts  of cannabis.    However,  it  was  acknowledged  a more comprehensive review would be required to draw such a conclusion.  As submitted by the Crown, the better approach is to examine the value of each decision by reference to the issue before the appeal Court which it is focussed on addressing.

[16]     In the first case relied upon by Mr Addenbrooke, Ngatai v Police, where a starting point of six months was upheld, the concern on appeal was the issue of parity with a co-offender.17   In the other case relied upon, Dobbs v Police, the focus of the appeal against what was assessed as a starting point of eight months was on whether the sentencing Judge had erred in not considering home detention as a viable option.18    Where reliance is placed on an appeal case for guidance on appropriate sentence levels and where the appeal is unsuccessful, in the absence of any observation by the appeal Court that the sentence was stern or at the upper limit, the influence of the case is limited.  It does not follow that a higher sentence would not have also been within range.  The authorities relied upon by the Crown perhaps highlight that observation.

[17]     Mr Addenbrooke,  in  support  of  his  appeal,  also  referred  to  the  difficult situation in which he found himself after being released from prison and not having

14     Barker v Police HC Dunedin CRI-2010-412-11, 13 May 2010.

15     R v Rihari HC Whangarei SO5102, 23 September 2005.

16     R v Pulham HC Whangarei CRI-2006-029-168, 12 October 2006.

17     Ngatai v Police, above n 8.

18     Dobbs v Police, above n 8.

work.  It is said he foolishly resorted to selling cannabis in order to make a small amount of money.  Since the offending Mr Addenbrooke has obtained employment. The loss of that income for Mr Addenbrooke’s partner and her children are cited as reasons why this sentence should be shortened.

[18]     These  types  of  personal  considerations  were  no  doubt  urged  upon  the sentencing Judge for his consideration.   Judge Turner in his sentencing remarks specifically referred  to  Mr Addenbrooke’s  personal  circumstances  and  to  letters written by both his partner and his employer.  It is not disputed the discount afforded to Mr Addenbrooke for personal circumstances was other than appropriate. Furthermore, Judge Turner expressly acknowledged the need for the sentence to be the least restrictive outcome appropriate in the circumstances of Mr Addenbrooke’s case.

[19]     Mr Addenbrooke’s counsel advised that Mr Addenbrooke has undertaken a rehabilitation programme in prison, is remorseful, and determined to avoid similar offending in the future.  He is anxious to have the opportunity to get back to work and to support and be reunited with his partner and her child.  To that end it was submitted that even a small reduction in the sentence would not amount to tinkering as it would still represent a not insignificant percentage of the total sentence.   I accept  that  submission,  but  the  difficulty  is  that  before  the  appeal  Court  can substitute a different sentence it must first be satisfied there has been an error by the sentencing Judge.  A sentence appeal cannot proceed as a second sentencing hearing in the absence of such an error being identified and sustained.

[20]     I am not able to discern any error in the way the sentencing Judge approached his task.  In the absence of Mr Addenbrooke being able to demonstrate Judge Turner erred  in  taking  a  starting  point  of  12  months  imprisonment  the  appeal  must inevitably fail.   I consider the sentence imposed was within the available range. Accordingly, the appeal must be dismissed.

Solicitors:

Public Defence Service, Dunedin

RPB Law, Dunedin