Bairds v Police
[2019] NZHC 3181
•4 December 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-123
[2019] NZHC 3181
BETWEEN LEIGHTON BAIRDS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 October 2019 Counsel:
R Ward for Appellant
J Whitcombe for Respondent
Judgment:
4 December 2019
JUDGMENT OF WHATA J
This judgment was delivered by me on 4 December 2019 at 4.00 pm.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Raymond Donnelly & Co, Christchurch
BAIRDS v POLICE [2019] NZHC 3181 [4 December 2019]
[1] Mr Bairds pleaded guilty to cultivation of cannabis and two charges of failing to appear. He was sentenced by Judge Neave to 13 months’ imprisonment.1 He appeals this sentence on the basis it was manifestly excessive.
Facts
[2] Police executed a search warrant at the appellant’s address on 8 October 2018. They located four cannabis plants, 14.6 g of cannabis in tinnies, 21.82 g of cannabis in small zip-lock bags, pre-cut pieces of tin foil, scales, a bong and a grinder. Mr Baird’s cellphone contained multiple messages discussing the sale and delivery of cannabis, for when orders were placed on a secret Facebook group. At the time of this offending, he was serving a sentence of home detention for dishonesty-related offences.
District Court decision
[3] Judge Neave categorised the offending as a reasonably significant cannabis operation involving commercial cultivation and stated that reasonable planning had gone into it. Against that he said the amounts found were not great and a significant amount was for Mr Baird’s own use. He noted that Mr Baird had family support, but also a continual inability to complete sentences and participate in opportunities afforded to him. He said that the offending fell into the lower end of band two in the tariff judgment R v Terewi.2 Band two generally involves starting points between two to four years. However, the Judge considered an appropriate starting point in this case was 18 months. To that he added six months for the charges of failing to appear and the fact the offending occurred while the appellant was subject to home detention.
[4] Judge Neave did not find the evidence regarding rehabilitation compelling but nevertheless allowed a credit of three months, and a further three months taking into account the fact Mr Bairds would have to serve his prison sentence away from Christchurch, which would make the sentence more difficult for the him. He also allowed a full 25 per cent discount for guilty plea, despite that plea not having been
1 Police v Bairds [2019] NZDC 16445.
2 R v Terewi [1999] 3 NZLR 62, (1999) 16 CRNZ 429 (CA) at [4].
entered at the first opportunity. This resulted in an end sentence of 13 and a half months’ imprisonment, which Judge Neave rounded down to 13 months.
[5] Finally, His Honour considered whether leave to apply for home detention should be granted. Given the appellant’s previous history of non-compliance and the fact that the present offending occurred while he was subject to a sentence of home detention, the Judge found that home detention would be inappropriate and therefore refused to grant leave.
Principles on appeal
[6] An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or because of additional material submitted on the appeal which vitiates the sentencing decision of the Court below.3 Unless there is a material error in sentence, for example, that it is manifestly excessive, manifestly inadequate, or wrong in principle, an appellate court will not intervene.
Zhang
[7] At the time this matter was heard, counsel were aware that the Zhang decision was due to be released.4 It was agreed that the decision on the appeal should be deferred to enable the parties and this Court to consider the implications, if any, that decision might have for this appeal. After the decision was released, I convened a telephone conference to ascertain the views of the parties about Zhang. Initially neither party sought an opportunity to submit further on it but Mr Ward, for the appellant, subsequently indicated that he did wish to make further submissions and did so on 11 November 2019. No further submissions have been filed on behalf of the respondent, though I understand the respondent does not consider that Zhang assists Mr Baird. I turn then to examine Mr Ward’s submissions.
3 Tutakangahau v R [2014] NZCA 279 at [29]–[31].
4 Zhang v R [2019] NZCA 507.
Submissions
[8] Mr Ward submitted that the starting point adopted by Judge Neave was too high, the uplifts were excessive, there was insufficient consideration given to mitigating factors and the end sentence was manifestly excessive. He referred to several cases which, he said, showed that the sentence was excessive, including Mowberry v R,5 Waghorn v Police,6 R v Stuthridge,7 R v McGilp,8 R v Marshall,9 R v Timoti,10 R v Fenton,11 R v Edmonds12 and R v Latham.13 Mitigating factors included Mr Bairds’ home life and that he was committed to his partner and two children, who relied on him for day to day support.
[9] Mr Ward submitted, in supplementary submissions, that Zhang identified problems with the guideline judgment of Fatu.14 While those cases dealt with methamphetamine offending, he submitted that the observations and approach in Zhang could apply by analogy to the guideline authority in cannabis cases, Terewi.15 He said the following passage in Zhang is apposite here:
[10]In this judgment we conclude:
(a)Sentencing must achieve justice in individual cases. That requires flexibility and discretion in setting a sentence notwithstanding the guidelines expressed in this and similar judgments.
(b)In sentencing methamphetamine offending, quantity remains a reasonable proxy both for the social harm done by the drug and the illicit gains made from making, importing and selling it. It is therefore an important consideration in fixing culpability and thus the stage one sentence starting point.
(c)The Fatu quantity bands are therefore retained, but with some significant modifications.
(d)In particular, we hold that the role played by the offender is an important consideration in the stage one sentence starting point. Due regard to role enables sentencing judges to properly assess the
5 Mowberry v R [2012] NZHC 969.
6 Waghorn v Police HC Invercargill CRI-2008-425-1 4 March 2008.
7 R v Stuthridge HC Auckland CRI-2007-404-254 6 November 2007.
8 R v McGilp (2006) CRNZ 526. .
9 R v Marshall HC Whangarei CRI-2008-029-216 16 December 2008.
10 R v Timoti HC Tauranga CRI-2008-087-02197 17 March 2005.
11 R v Fenton CA247/99 11 October 1999.
12 R v Edmonds CA 23/02 28 May 2002.
13 R v Latham [2007] NZCA 552.
14 R v Fatu [2006] 2 NZLR 72 (CA)
15 R v Terewi, above n 2.
seriousness of the conduct and the criminality involved, and thereby the culpability inherent in the offending.
(e)A more limited measure of engagement in criminal dealing deserves a less severe sentence than a significant or leading role. Diminished role in methamphetamine dealing offending may result in an offender moving not only within a band — as currently happens or is supposed to happen under Fatu — but also between bands.
(f)Although we do not adopt the two grid matrix (involving quantity bands and role categories) devised by the United Kingdom Sentencing Council, we record that, in assessing role, sentencing judges may find it helpful to have regard to the Council’s categorisations of role (into “leading”, “significant” and “lesser”). In considering the individual appeals before us, we make use of those categorisations.
(g)The Fatu sentencing distinction between supply, importation and manufacture is removed. Evaluation of role will satisfactorily account for functional differentiation.
(h)The Fatu bands themselves are adjusted: there are now five bands (the fourth Fatu band being subdivided), and the sentencing start points for bands one to four are lowered from those previously applying.
(i)We observe that judges need to be willing to set starting points in sentences beneath the stated entry points where culpability is truly low; most likely where an offender plays a lesser role in offending.
(j)At stage two of the sentencing exercise, personal mitigating circumstances relating to the offender are applicable to all instances of Class A drug offending, including methamphetamine dealing, as in the case of any other offending.
(k)Addiction shown to be causative of the offending is a mitigating consideration. It may in its own terms justify a sentence discount of up to 30 per cent, although that is not to be treated as an absolute limit. Addiction will often combine with mental health issues, and the two may need to be considered in combination, although without the doubling-up of an otherwise appropriate discount. Addiction also calls for consideration of a rehabilitative response as part of sentencing.
(l)Poverty and deprivation (potentially but not necessarily resulting from loss of land, language, culture, rangatiratanga, mana and dignity) are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Such vulnerabilities (where established, and whether associated with addiction or not) require consideration in sentencing.
(m)Counsel and sentencing judges are encouraged to make greater use of the power in s 25 of the Sentencing Act 2002 to adjourn sentencing to enable rehabilitation programmes to be undertaken. Use of that power is appropriate where independent evidence suggests the offending was caused by the factor(s) which the proposed programme is designed to target.
(n)Minimum periods of imprisonment must not be imposed as a matter of routine or in a mechanistic way. A reasoned analysis is required under s 86 of the Sentencing Act, both as regards the imposition of a minimum period of imprisonment and its length. If a practice has developed that an end sentence of nine years’ imprisonment automatically triggers a minimum period of imprisonment, such a practice must cease.
(o)Deterrence, denunciation and accountability are likely to be at the forefront of decisions in drug cases involving the imposition of a minimum period of imprisonment. As a general rule, therefore, lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing.
(p)This judgment applies to all sentencings that take place after the issue of this judgment regardless of when the offending took place. It applies to sentences that have already been imposed, if and only if two conditions are satisfied: (1) an appeal against the sentence has been filed before the date the judgment is delivered and (2) the application of the judgment would result in a more favourable outcome to the appellant.
[10] Mr Ward submitted further that Mr Bairds’ culpability is truly low, having regard to the connection between the offending and Mr Bairds’ drug addiction – i.e. he engaged in commercial sale of cannabis to sustain his own cannabis use. He also submitted that the comments in Zhang about personal circumstances discounts also resonate in this context, that is, it is appropriate to recognise the impact of addiction. He said that Mr Bairds’ has maintained throughout that this dealing was to fund his addiction, and this appears to have been accepted by the PAC report writers.
Assessment
[11] While I accept that Zhang provides assistance by analogy in cases of cannabis drug offending, and there is some force to Mr Ward’s submissions about the disproportionality of sentences in the present context, I have come to the view that this is not the right case to attempt to revisit Terewi even if it were the proper function of this Court to do so. Moreover, I am satisfied that the sentence overall is not manifestly excessive.
[12] First, the Judge’s start point was well within the range for cases of this kind. Mr Bairds was the lead player in the sale of the cannabis. It was his operation. As Judge Neave noted, it was reasonably sophisticated. The observations in Zhang about
the importance of the role played do not assist Mr Bairds.16 Having said that, some recognition is needed of the fact that this was a low-level operation and I think the Judge did recognise that when he adopted a start point which was six months below the start point for Band 2.
[13] Second, the Judge’s six-month uplift for failing to appear and for offending while on home detention was excessive, at about 33 per cent of the start point. A three- month uplift was, however, available. This bears on the ultimate issue about whether the sentence was overall manifestly excessive.
[14] Third, a three-month discount for rehabilitation prospects appears generous in light of Mr Bairds’ propensity to reoffend and non-compliance with Court orders. In this regard, the PAC report noted that Mr Bairds also has ten previous offences relating to non-compliance while serving community sentences. A further three-month discount for separation from family (an otherwise ordinary consequence of imprisonment) was also generous, as was the 25 per cent discount for late guilty plea. That is a combined discount of 50 per cent.
[15] Fourth, as Mr Whitcombe submitted, it is difficult to find fault with this result based on Terewi and other comparable cases, including those cited by Mr Ward. There are some instances where a lesser sentence was handed down for comparable offending, for example, in Mowberry. But it cannot be said that the starting point or the end point sentence was manifestly excessive.
[16] Finally, I am not satisfied that there is a proper basis to find that addiction was the driver of the offending. For my part a mixed picture emerges from all the available information. Mr Bairds has a drug habit and ran a commercial cannabis operation. I also have no doubt the latter benefits the former. But I am not satisfied, on the limited evidence available to me, the cannabis operation is driven by Mr Bairds’ drug habit.
16 At [118].
[17] Accordingly, I do not consider that Judge Neave erred. The sentence was not manifestly excessive. The appeal is dismissed.
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